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Abortion in India:...

Abortion in India: legal, but not a woman’s right

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Geetanjali Krishna , freelance journalist
geetanjalikr{at}gmail.com

On the surface, India has one of the world’s highest abortion rates and most progressive abortion laws, but this hides a tangle of issues that prevent many women from accessing safe abortion. Geetanjali Krishna reports

“I wanted to be sterilised when my second set of twins was born,” says Maina Devi. “But my family said that life in our village is too uncertain for such things.”

Devi is a 25 year old farmer from Jamunipur, a hamlet in the northern Indian state of Uttar Pradesh, who has two sets of twins under 5 years of age. Her husband refuses to use contraception. She’s not aware that, during her second pregnancy, she could have opted for abortion on the grounds of contraceptive failure. All she does now is pray that she doesn’t get pregnant again.

About 885 miles south, Anusha Pilli, a Hyderabad based medic and public health professional, is struck by the lack of awareness about abortion in the city, even among middle class college graduates. “Few of them know about medical abortion drugs available to them, or about the gestation period up to which abortion is legally allowed in India,” she says. “It’s hard to imagine that Indian law has legally allowed abortion for over 50 years—and still women have not felt empowered by it.”

On International Safe Abortion Day on 28 September 2022, the Supreme Court of India extended the right to legal abortion to 20 weeks’ gestation for all women and to 24 weeks’ gestation under special circumstances. 1 2 With this change, India’s Medical Termination of Pregnancy Act 1971—one of the older abortion laws in the world—also became one of the more progressive.

India’s abortion rate, at 47 per 1000 women …

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Abortion law, policy and services in India: a critical review

Affiliation.

1 Vadu Rural Health Programme, KEM Hospital, Pune, India. [email protected]
PMID: 15938164
DOI: 10.1016/s0968-8080(04)24017-4

Despite 30 years of liberal legislation, the majority of women in India still lack access to safe abortion care. This paper critically reviews the history of abortion law and policy in India since the 1960s and research on abortion service delivery. Amendments in 2002 and 2003 to the 1971 Medical Termination of Pregnancy Act, including devolution of regulation of abortion services to the district level, punitive measures to deter provision of unsafe abortions, rationalisation of physical requirements for facilities to provide early abortion, and approval of medical abortion, have all aimed to expand safe services. Proposed amendments to the MTP Act to prevent sex-selective abortions would have been unethical and violated confidentiality, and were not taken forward. Continuing problems include poor regulation of both public and private sector services, a physician-only policy that excludes mid-level providers and low registration of rural compared to urban clinics; all restrict access. Poor awareness of the law, unnecessary spousal consent requirements, contraceptive targets linked to abortion, and informal and high fees also serve as barriers. Training more providers, simplifying registration procedures, de-linking clinic and provider approval, and linking policy with up-to-date technology, research and good clinical practice are some immediate measures needed to improve women's access to safe abortion care.

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Volume 20 Supplement 1

Availability of quality-assured medical abortion medicines

Open access
Published: 05 June 2024

Landscape assessment of the availability of medical abortion medicines in India

Priya Karna 1 ,
K. Aparna Sharma 2 ,
Amy Grossman 3 ,
Madhur Gupta 1 ,
Tapas Chatterjee 1 ,
Natalie Williams 3 ,
Ndola Prata 3 , 4 ,
Annik Sorhaindo 5 ,
Laurence Läser ORCID: orcid.org/0009-0009-4841-0870 5 ,
Ulrika Rehnström Loi 5 ,
Bela Ganatra 5 &
Pushpa Chaudhary 1

Reproductive Health volume 20 , Article number: 193 ( 2023 ) Cite this article

356 Accesses

Metrics details

Medical abortion with mifepristone and misoprostol can be provided up to 63 days’ gestation in India. This accounts for 67.5 percent of all abortions in the country. We conducted an assessment to determine the availability of medical abortion medicines, specifically the combi-pack, in India.

We applied the World Health Organization landscape assessment protocol at the national level. The assessment protocol included a five-step adaptation of an existing availability framework, including online data collection, desk review, country-level key informant interviews, and an analysis to identify barriers and opportunities to improve medical abortion availability. The assessment was conducted between August and March 2021.

Medicines for medical abortion are included in the national essential drug list and available with prescription in India. The assessment identified 42 combi-pack products developed by 35 manufacturers. The quality of medical abortion medicines is regulated by national authorities; but as health is devolved to states, there are significant inter-state variations. This is seen across financing, procurement, manufacturing, and monitoring mechanisms for quality assurance of medical abortion medicines prior to distribution. There is a need to strengthen supply chain systems, ensure consistent availability of trained providers and build community awareness on use of medical abortion medicines for early abortions, at the time of the assessment.

Opportunities to improve availability and quality of medical abortion medicines exist. For example, uniform implementation of regulatory standards, greater emphasis on quality-assurance during manufacturing, and standardizing of procurement and supply chain systems across states. Regular in-service training of providers on medical abortion is required. Finally, innovations in evidence dissemination and community engagement about the recently amended abortion law are needed.

Plain language summary

Medical abortion is popular in India and benefits from a liberal legal context. It is important to understand the availability of quality abortion medicines in the country. Using the World Health Organization country assessment protocol and availability framework for medical abortion medicines we examined the availability of these medicines from supply to demand. We used this information to identify opportunities for increasing availability of quality-assured medical abortion medicines. We found that the context for medical abortion varies across states. Strengthening procurement and supply chain management, with a greater emphasis on quality-assurance and regulation of manufacturing should be instituted at the state-level. Training is also needed to increase provider knowledge of the latest national guidelines and laws to ensure respectful and person-centered services. Finally, the public should be informed about medical abortion as a safe and effective choice, especially for early abortions.

Abortion has been legal in India for nearly five decades, accommodating a broad range of conditions [ 1 ]. Medical abortion (MA) using either a combination of mifepristone followed by misoprostol, or misoprostol alone is a well-accepted, safe, and effective method [ 2 , 3 ]. As per the 2019–2021 National Family Health Survey (NFHS), MA is the predominant method of abortion in India (67.5%) [ 4 ]. Women’s preference for MA is influenced by various factors, like safety and effectiveness, degree of medical intervention, perception of what is natural, perceived pain and adverse effects, time required at the facility, confidentiality, need for multiple clinic visits, associated cost and physical examination requirements [ 5 , 6 ]. Nearly half of women (48%) sought abortion due to unplanned pregnancy [ 6 ]. The World Health Organization (WHO) estimates that nearly 21.5 million or 44 percent of all pregnancies in India are unintended [ 7 ]. The share of unintended pregnancies that end in abortion has nearly doubled from 47 percent in 1990–1994 to 77 percent in 2015–2019 [ 7 , 8 ].

WHO defines unsafe abortion as terminating an unintended pregnancy by unskilled individuals or in substandard medical conditions, or both [ 9 ]. In India, around 55% of abortions are performed by medical doctors, with a significant variation between rural (48%) and urban (66%) areas [ 4 ]. This indicates that rural areas are more susceptible to unsafe abortion practices compared to urban areas [ 6 ]. Women’s age, geographic location, gender composition of their living children, and their level of education are crucial predisposing factors influencing unsafe abortion in India [ 6 ]. A significant 27% of abortions in India are conducted at home. Notably, self-administered abortions account for 21.6% in urban areas, which starkly contrasts with the 30% in rural settings [ 4 ]. Therefore, the importance and potential scope of the use of MA medicines cannot be understated.

In India, health products are governed by the Drugs & Cosmetics Act [ 10 ], which covers a wide variety of medicines and medical devices. Mifepristone was approved under this act in 2002. In 2008, the Government of India (GoI) approved the use of co-packaged mifepristone and misoprostol products (combi-pack) for use up to nine weeks (63 days) of pregnancy. As a result of the introduction of MA medicines and subsequent widespread availability, the abortion landscape in India has changed substantially. Both mifepristone and misoprostol are considered ‘Schedule H drugs’ according to the Drugs and Cosmetics Act [ 10 ]. This means that these drugs require a written prescription by a registered medical practitioner (RMP). The specific characteristics of RMP are described within the Medical Termination of Pregnancy (MTP) Act Rules [ 1 ]. The definition of RMPs was broadened in the 2021 amendment that extended the scope of comprehensive abortion care (CAC) service provision [ 1 , 11 ]. The National Comprehensive Abortion Care Training and Service Delivery Guidelines of 2018 and 2023 provide clinical guidance for MA use [ 12 ].

In recent years, the government has invested significantly in improving the quality of medicines and strengthening its regulatory agencies at the national and state-level [ 13 ]. In stark contrast to MA drugs, contraceptives in India are supplied via a centralized system, the FP-LMIS (Family Planning Logistics, Management, and Information System). MA medicines manufacturing, procurement and distributions are decentralized and determined at the state-level. Despite the high use of MA medicines and potential for growth [ 4 ], we found no previous comprehensive assessment of this landscape. Given India’s increasing focus on strengthening its overall pharmaceutical manufacturing capacity, through this assessment, we wanted to map all available MA medicines, and identify strategic areas of intervention to highlight the unique opportunity to position the country as a leading provider of MA medicines. Given this context, it is critical to understand the landscape of MA medicines, the mechanisms for quality assurance, barriers for use and opportunities to improve access to MA medicines in India.

The objectives of the assessment were to systematically identify the regulatory landscape including manufacturing, quality assurance standards, policy and financial norms governing availability of MA medicines in the market, both nationally and at the state-level. We aimed to better understand the procurement, storage, distribution, and overall use of MA medicines whilst also reviewing the service providers knowledge and end users' awareness regarding MA. This paper also identifies opportunities for increasing availability of quality-assured MA medicines. For our paper, a quality-assured medicine was defined as one that is either WHO Prequalification (WHO PQ)-listed or approved by a Stringent Regulatory Authority (SRA-approved) [ 14 , 15 , 16 ].

This assessment was completed before the MTP amendment of 2021, but opportunities identified through this assessment are relevant for the implementation of the CAC program especially after the law change [ 11 ].

We applied the WHO country assessment protocol for MA medicines at the country-level. The assessment protocol included five steps: (1) adaptation of availability framework as per country context, (2) literature review (3) country-level key informant interviews, (4) analysis of publicly available data to identify barriers and opportunities in MA medicines availability, and (5) validation of findings by the technical advisory group (Fig. 1 ). Each step has a set of conditions that should be fulfilled to ascertain MA medicine availability and span across all aspects of use, from supply by the manufacturer to demand and use by the end user [ 17 ].

Source : Rehnström Loi, U., Prata, N., Grossman, A. et al. In-country availability of medical abortion medicines: a description of the framework and methodology of the WHO landscape assessments. Reprod Health 20 (Suppl 1), 20 (2023). https://doi.org/10.1186/s12978-022-01530-7

The five pillars of availability of a service related to a medical.

As part of this assessment, we also conducted a deep dive in two states, Rajasthan, and Tamil Nadu, to better understand the state-level differences. The state-level analysis has not been included in this paper; however, the full report is available on the WHO website. The rationale for the state selection was significant utilization of MA drugs and presence of a well-established medical service corporation.

We conducted a comprehensive desk review to collate and analyse data from secondary sources, including government reports, National Family Health Surveys, state-level program implementation plans, published research articles and evaluation reports. Primary data was collected through 45 key informant interviews representing diverse stakeholder perspective, ranging from officials from the Ministry of Health and Family Welfare (MoHFW); the Federation of Obstetric and Gynaecological Societies of India; manufacturers and distributors and including social marketing organizations; academics; clinicians; and non-governmental organizations, as well as State Health Mission representatives from two states, Tamil Nadu, and Rajasthan.

The assessment was conducted between August and November 2020 and the findings were finalized in March 2021 following validation by national experts. The assessment occurred within the context of an ongoing national dialogue on abortion laws and policies. During this period, the MTP Act of 1971 was amended and ratified as “The MTP (Amendment) Act 2021”, unrelated to the assessment itself [ 11 ].

Registration and quality assurance

The Central Drugs Standard Control Organization (CDSCO), operating under the Director General of Health Services, MoHFW, serves as the primary national regulatory authority (NRA) in India. India is an active member of the Southeast Asia Regulatory Network, which seeks to increase access to high-quality medicines including MA products in the WHO member states in the region [ 18 , 19 ].

In India, new medicines are initially registered, reviewed and then centrally approved by the drug controller under CDSCO with a restricted license issued for the period of three years [ 20 , 21 ]. If the product meets quality and compliance standards consistently over three years, the restricted license transitions to a general license, and manufacturers can seek registration of their products with the state-level Food and Drug Control Administrations (FDCA). These FDCAs are then responsible for regulation and manufacturing of MA medicines in their state. Once a product is approved by either CDSCO or state-level FDCA, it is eligible for marketing and distribution throughout the country. This also applies to MA medicines [ 10 ].

Manufacturing

CDSCO manages an e-portal named SUGAM [ 21 ], which offers the up-to-date data on approvals, licenses, and details of all medicines manufacturing facilities including information on formulations and prescribed use for Schedule H drugs. The current licensed drug list of CDSCO includes misoprostol (Sr. No. 869) which is approved for “cervical ripening, prevention of postpartum hemorrhage and first trimester abortion along with mifepristone”. The list also includes mifepristone (Sr. No. 1039) approved for use “by Gynecologist only—for medical termination of intrauterine pregnancy through 49 days of inception” and a combi-pack of mifepristone + misoprostol (Sr. No. 1782) “for the medical termination of intrauterine pregnancy of up to 63 days gestation based on the first day of the last menstrual period” [ 21 ].

We identified 42 combi-pack products by 35 manufacturers available in India discerned through manufacturers’ and social marketers’ websites and online pharmacies (Table 1 ). These products are approved by a state-level FDCAs based upon the initial combi-pack approved by CDSCO in 2008 (Sr. No. 1782), however, their exact registration status within the country could not be verified. These 35 combi-packs manufacturers are distributed nationwide, with some operating in multiple states. Two misoprostol products manufactured in India are WHO PQ-listed and one combi-pack is SRA-approved; all three products are intended for export and manufactured in dedicated facilities (Table 1 ). There is an opportunity for the local manufacturers of MA medicines towards achieving WHO-PQ, which can elevate their global contribution, enhancing access to quality MA medicines.

Quality assurance

State FDCAs in India oversee regular inspections of manufacturing sites for compliance with current good manufacturing practice (cGMP) and for monitoring adverse reactions. In India, there are two basic approvals for manufacturing facilities. One is cGMP determined by state FDCA inspections and based on the inspection risk-assessment. The other is cGMP determined by joint inspection by CDSCO Zonal Officers and inspectors using a quality risk approach and a checklist relying on the WHO cGMP scheme for pharmaceutical products, and on national Certificates of Pharmaceutical Product, also based on WHO guidelines. Both types of inspections happen approximately every three years. For hormonal products like, misoprostol, to align with WHO cGMP standards, manufacturers must maintain a dedicated hormonal facility for production.

In public sector procurement systems, quality assurance, three random samples from manufacturing sites or pharmacy registers are selected at the central warehouse. These are then dispatched to the Head Office of Drug Control and then subsequently sent to three different labs for analysis. Should medicines fail to meet assay or pharmacopeia standards, district warehouses receive directives to freeze the stock until the Quality Control Department issues further directions on next steps [ 22 ].

Policy and financing

Abortion care is integral to India’s Reproductive, Maternal, Newborn, Child and Adolescent Health (RMNCAH) strategy and is incorporated into national service delivery guidelines and the National Health Mission (NMH) Program Implementation Plans [ 10 ]. Although robust national policies exist and guidelines on provider eligibility, capacity building and financial support for MA medicine procurement are already in place [ 1 , 11 , 12 ] state-level variations persist.

The national essential medicines list (EML) guides public sector procurement, but states have autonomy to formulate their essential medicine lists based on the specific requirements. This assessment identified that while national policy and inclusion of mifepristone and misoprostol exists, translation into state EMLs is inconsistent. For example, in Tamil Nadu, the 2019–2020 EML includes misoprostol (200 mcg tablet) and mifepristone on a separate “Specialty Drug List” for public tender – a temporary designation for newly added medicines. In Rajasthan, the 2020 EML includes mifepristone tablets for primary health centers and misoprostol tablets for sub-centers and above. However, the MTP combi-pack, not in the EML, is on an approved rate list and is procured by the Government of Rajasthan [ 23 ].

Procurement and distribution

Public sector procurement of MA medicines is devolved to the state level; there is no centralized procurement system at the national level. State governments have established corporations to procure essential medicines through bulk purchasing utilizing their NHM funds.

These funds are allocated based on Program Implementation Plans submitted by the states. During the fiscal year 2019–2020 and 2020–2021 under the budget head of ‘Drugs for Safe Abortion’ varies and is contingent on state needs and the availability of existing stock; budget needs and allocations are generally based on previous trends. Financing (including procurement) of MA medicines varies significantly across states despite national level efforts to allocate funds to purchase MA medicines.

The variation in requirement also poses challenge for procurement. States with small quantity tender volumes may not be attractive to the large manufacturers for competing for tenders. A review of a sample of public tenders at state level reveals that there is variation in combi-pack tender volumes across states. For example, in Rajasthan and Tamil Nadu, the tender volume is on average 17,000 and 15,000 combi-packs, respectively, compared to larger public-sector tenders in states like Madhya Pradesh (80,000) and Karnataka (40,000).

Besides small tender volumes, there are also other factors which dissuade commercial manufacturers from competing for public tenders, such as onerous paperwork, payment delays, and preference for in-state suppliers to promote local businesses. The non-governmental sector has an important role in procurement and distribution of MA medicines through public–private partnerships.

MA medicines are also available for purchase upon prescription through retail pharmacies. There is wide variability in the availability of MA medicines in pharmacies across states. A large-scale medicine survey of essential medicines conducted by the MoHFW in 2014–16 found that misoprostol has limited availability in retail outlets [ 24 ]. Data from NGO pharmacy surveys indicate that chemists cite strict monitoring and reporting by state-level FDCAs as reasons for ceasing to stock and dispense MA medicines in pharmacies [ 23 , 24 , 25 ]. Key informant interviews in both states corroborate the finding that documentation requirements for pharmacists (copies of prescriptions on file, client signatures) and the risk of loss of license, create barriers to pharmacists’ willingness to stock MA medicine. Pharmacies affiliated with hospitals with obstetricians and gynecologists are most likely to stock MA medicines.

The national health survey clearly shows that the majority of abortions are performed in the private health sector (53%), and only 20% in the public health sector [ 4 ]. There is a robust private sector market for MA medicines in India with not only commercial distributors but also social marketing organizations distributing and selling MA medicines through a variety of private sector providers, outlets, clinics, and pharmacies [ 25 ].

Provider knowledge and behavior

The MTP Act defines who can provide abortion in India [ 1 , 11 ]. Medical doctors are permitted to perform MTP up to 20 weeks’ gestation if they have a post-graduate degree or diploma in obstetrics and gynecology, have completed six months of residency in obstetrics and gynecology or have at least one-year experience in the practice of obstetrics and gynecology. Physicians with a Bachelor of Medicine, Bachelor of Surgery (MBBS) are only permitted to provide first trimester (up to 12 weeks’ gestation) MTP/CAC services after completing training at a government approved training center or hospital and becoming a certified provider [ 12 ].

Funding for the training of these providers is allocated under the NHM Program Implementation Plan which primarily targets training master trainers and Medical Officers. However, CAC training is inconsistent, highlighting the need for optimized fund utilization. Interviews with providers highlighted the need for innovative approaches to teaching and learning without diverting providers from service delivery.

The study reveals a significant gap in providers’ awareness of the updated national abortion guideline, and the abortion law in India [ 11 , 26 ]. Although the combi-pack is approved for use up to nine weeks (63 days) of gestation, many providers limit its use to seven weeks (49 days) of gestation, per the MTP Act. Additionally, invasive practices, like dilatation and curettage, are still commonly practiced [ 4 , 26 , 27 , 28 , 29 ]. Key informant interviews showed that knowledge of the WHO Abortion Care guideline is inconsistent. There is lack of alignment between WHO recommendations for use of MA medicines, which is up to 12–13 weeks of gestation [ 2 , 3 ], the combi-pack regulatory approval (9 weeks) and the MTP Act. This creates challenges in evidence-based decision-making in abortion care services, particularly in private sector, which often sees minimal regulatory supervision.

End user knowledge and behavior

This assessment, primarily based on literature review, indicates a significant knowledge gap regarding abortion legality and availability of safe services, particularly among young and unmarried [ 4 ]. The stigma surrounding abortion is pronounced, especially in rural areas, and the emphasis on sex-selective abortion has fostered a widespread belief that all abortions are illegal [ 4 , 28 , 29 ]. Despite free services in the public sector, many abortions take place in private sector at considerable out-of-pocket costs (retail cost ranges from 335–600 INR, equivalent to USD$4-$7.25), due to unawareness about free services in public sector [ 30 , 31 ]. Woman’s negative perceptions of the legality, quality, privacy and confidentiality, and hostile public facility environment deter women from accessing public sector services, often resulting in unsafe abortion practices [ 4 , 30 , 31 , 32 ].

Community awareness activities about safe abortion services is not uniformly prioritized and varies across the state-level. The Reproductive, Maternal, Newborn, Child and Adolescent Health program calls for, “Routine orientation and training of Accredited Social Health Activists to equip them with skills to create awareness about abortion issues in the community and facilitation of women's access to services”, yet dedicated funding for this initiative is often absent.

Discussion and recommendations

This paper is the first landscape assessment of MA medicines, particularly the combi-pack, using the WHO framework for assessing the availability of MA medicines. This is a standardized, evidence-based approach that not only identifies areas of intervention along the supply-chain but also provides significant opportunities for establishing India’s potential in providing quality-assured MA medicines for the Region and the world.

India is an important manufacturer of MA medicines [ 22 , 23 ]. However, we found that uniform implementation of quality assurance and regulatory procedures requires strengthening at the national and state-levels. This is well within the scope of authority of the national regulatory body. While CDSCO oversees and coordinates state FDCA more nuanced attention on MA medicines is needed to reduce the variation between the enforcement and uptake of regulatory standards. This, combined with a lack of structured norms defining state EMLs and the national EML, creates discrepancies that add undue barriers to public sector procurement and availability of MA medicines.

Combi-packs in India are approved by state-level regulatory agencies with oversight by CDSCO. Manufacturing a quality misoprostol product is challenging as pure misoprostol is extremely unstable and easily degraded by moisture [ 33 , 34 , 35 ]. While requirements for the quality testing of MA medicines are in place, including during manufacturing and immediately post-procurement, this may not be sufficient to determine a level of quality of MA products that can be upheld up to international standards. Medicines procured by state agencies have been found to be monitored for their quality prior to distribution for public sector facilities. However, state procurement agencies may miss potential quality issues of combi-pack and misoprostol tablets with only baseline testing upon receipt of medicines at warehouses [ 13 , 33 ]. To improve overall quality of MA medicines, quality control should be replaced by quality assurance at all stages of manufacturing and strengthened implementation of cGMP should be ensured across manufacturing sites.

WHO provides technical assistance to local manufacturers, including capacity building for cGMP, to support a WHO-PQ application process and foster local production. MA medicine manufacturers could apply for WHO PQ either for finished pharmaceutical products, which would facilitate procurement of their medicines outside of India, or for or active pharmaceutical ingredients, which would support manufacturing of quality medicines internationally. Manufacturers could also consider applying for approval from additional SRAs, if they have the manufacturing capacity and meet CDSCO export conditions, to cater to the global demand for MA medicines.

Procurement of MA medicines by states does not guarantee availability of MA medicines at public facilities or public sector pharmacies. Regional tendering for procurement may create a market size that would entice small and mid-level manufacturers to compete. Specific interventions at the state-level, such as streamlining the payment process, e-tendering, and capacity building for tendering processes and streamlining supply chain aspects and other initiatives may overcome the barriers dissuading commercial manufacturers from competing for tenders. Public sector procurement capacity should be strengthened to ensure that enough combi-packs are available at approved MTP public sector sites. All states should capitalize upon available resources for MA medicine and improve the quantification and forecasting of MA medicines.

Since 2015, WHO has published or updated multiple guidelines with new and rigorous evidence which could be considered for national uptake [ 2 , 3 , 33 , 34 , 35 , 36 ]. The updated MTP amendment provides an opportunity for updating and aligning national guidelines in India with global evidence-based recommendations. CAC training, in addition to being skill-based, must also be designed to clarify values, address social stigma, and provide comprehensive abortion services care, with quality, safety and most importantly respect [ 37 , 38 , 39 ]. Finally, states may introduce focused awareness campaigns to address the inaccurate conflation of laws and its effect on the correct provision of abortion care and invest in raising community awareness about the legality of abortion and availability of free safe abortion care service in public health facilities.

Limitations and strengths

This assessment provides the first overview of the MA medicines landscape in India. The implementation of a previously tested WHO framework in other countries creates structure and comparability across contexts [ 17 ]. Furthermore, the methodology can be easily replicated to determine changes in the landscape. A limitation to the assessment, due to the COVID-19 pandemic, was that interviews were largely conducted virtually or by telephone. Validity to determine the extent to which it accurately measures what it intends to measure was beyond the scope of the current paper.

Some interviews, notably with Food and Drug Control Administrations, could not be secured, limiting information collected to publicly available documents and expert feedback. This is relevant as the current registration status of the products listed in Table 1 is devolved to the state-level and could not be verified. End-user knowledge and behaviors could not be assessed owing to the pandemic. This may have limited the capture of the full spectrum of availability and quality of MA medicines in India. Finally, this assessment did not include analysis of export functions, current export volume, and manufacturers that export medicines, it was focused on domestic policy, supply, and procurement only.

India benefits from strong national policies that center abortion care within the National Health Mission, its budgets and guidelines. India's prominence as a leading manufacturer of MA medicines guarantees a steady product supply. However, there is variation across states and this landscape assessment uncovers opportunities to enhance the availability of quality MA medicine in India. These opportunities include uniform implementation of regulatory standards, prioritizing quality-assurance during manufacturing process especially for misoprostol and establishing standardized procurement and supply chain norms across all states. Streamlining implementation efforts on laws, policies and guidelines governing MTP and MA, with regular in-service training of providers on medical abortion provision in line with the latest national guidelines is required. Additionally, evidence dissemination and regular community engagement about the recently amended abortion law is needed.

Availability of data and materials

The data that support the findings of this study are available from the corresponding author, LL, upon reasonable request.

Abbreviations

Active pharmaceutical ingredient

Central Drugs Standard Control Organization

Comprehensive Abortion Care

Current good manufacturing practice

Essential Medicines List

Food and Drug Control Administrations

Medical Abortion

Bachelor of Medicine, Bachelor of Surgery

Medical Termination of Pregnancy

Ministries of Health and Family Welfare

National Health Mission

National Regulatory Agency

Registered medical practitioner

Reproductive, Maternal, Newborn, Child and Adolescent Health

Southeast Asia Regulatory Network

Stringent Regulatory Authority

World Health Organization

WHO Prequalification

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Acknowledgements

We wish to acknowledge the time and commitment of those organizations, government entities and individuals who provided valuable insights that informed the overall report. We wish to thank VSHD consultants, Sachin Juneja and Rajalakshmi RamPrakash for their significant contributions to conducting data collection and key informant interviews in the states of Rajasthan and Tamil Nadu, respectively. Sadab Boghani, National Consultant for CAC, WHO India who helped draft the original report and supported with the validation and clearances from all appropriate authorities. Finally, we would like to acknowledge the unyielding technical support and guidance from the WHO Country Office for India that made this work possible including but not limited to Dr Hilde De Graeve, Team Lead Health Systems and the WHO SAMARTH Team –Dr Pragati Singh, Dr Nidhi Bhatt, Ms Shikha Bansal, Dr Ashish Bhat, Dr Richa Kandpal, Dr Rakshita Khanijou, Ms Sapna Dubey and Ms Priya Kapur who supported this work immensely. We also acknowledge the support and guidance of Dr Sumita Ghosh, Additional Commissioner and In-charge Comprehensive Abortion Care at the Ministry of Health and Family Welfare, Government of India (at the time of the report); President of Federation of Obstetrician and Gynecological Societies of India Dr Shantha Kumari; Mission Directors and Nodal Officers from the States of Tamil Nadu and Assam; Ms Payden and Dr Rodercio Ofrin from WHO Country Office for India; Dr Meera Upadhyay and Dr Neena Raina from the WHO Regional Office for South-East Asia.

About this supplement

This article has been published as part of Reproductive Health Volume 20 Supplement 1, 2023: Availability of quality-assured medical abortion medicines no internal references. The full contents of the supplement are available online at https://reproductive-healthjournal.biomedcentral.com/articles/supplements/volume-20-supplement-1 .

This work was supported by the UNDP–UNFPA–UNICEF–WHO–World Bank Special Programme of Research, Development and Research Training in Human Reproduction, a cosponsored programme executed by the WHO. The views expressed in this article are those of the authors and do not necessarily represent the views of, and should not be attributed to, the World Health Organization.

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Priya Karna, Madhur Gupta, Tapas Chatterjee & Pushpa Chaudhary

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Amy Grossman, Natalie Williams & Ndola Prata

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Annik Sorhaindo, Laurence Läser, Ulrika Rehnström Loi & Bela Ganatra

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The landscape assessment was conceptualized by URL, BG and AFL. The VSHD Availability Framework was developed by NP and the indicators were adapted for medical abortion commodities by NP, AG and NW. PK, AG, AS, KAS, and TC drafted the manuscript with significant contributions from URL, LS and BG. All authors reviewed and edited versions of the manuscript. PK, AS, AG and TC had full access to all the data and had final responsibility for the decision to submit for publication. The authors alone are responsible for the views expressed in this article, and they do not necessarily represent the views, decisions, or policies of the institutions with which they are affiliated. All authors read and approved the final manuscript.

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Ethics approval was not applicable as the landscape assessment was led by the Ministry of Health as programme assessment and not conducted as research activity. The information collected during the desk review is publicly available data and the key informants all participated within their official capacity and were selected by the Ministry of Health. Verbal informed consent to participate in the assessment was obtained from all participants.

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Karna, P., Sharma, K.A., Grossman, A. et al. Landscape assessment of the availability of medical abortion medicines in India. Reprod Health 20 (Suppl 1), 193 (2023). https://doi.org/10.1186/s12978-024-01774-5

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Legal Abortion In India: A Comprehensive Analysis Of Laws, Access, And Public Perception

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This research paper explores the legal barriers hindering access to safe abortion services in India. Despite the progressive legal framework established by the Medical Termination of Pregnancy (MTP) Act of 1971, numerous challenges persist, limiting women's ability to exercise their reproductive rights safely and effectively. The study investigates the intersection of legal, social, and cultural factors that contribute to the barriers, highlighting the gaps between policy and implementation. The paper discusses the implications of these barriers, emphasizing the negative impact on women's health, safety, and autonomy. Unsafe abortions, resulting from restricted access to legal services, contribute to maternal morbidity and mortality rates. Furthermore, the denial of reproductive autonomy perpetuates gender inequality and violates human rights. The findings of this research contribute to the existing body of knowledge on safe abortion services, particularly within the Indian context, shedding light on the persistent legal barriers that hinder women's reproductive rights. By identifying and addressing these barriers, policymakers, healthcare professionals, and advocates can work collaboratively to ensure equitable access to safe abortion services, protect women's health and rights, and foster gender equality.

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Denial of Safe Abortion to Survivors of Rape in India

Padma bhate-deosthali.

Independent researcher and Senior Advisor to the Centre for Enquiry into Health and Allied Themes (CEHAT), Mumbai, India.

Sangeeta Rege

Coordinator at CEHAT, Mumbai, India.

Access to abortion is desperately needed when pregnancy is the result of rape, both within and outside marriage, and especially when a girl has been raped. The availability of services remains highly restricted because of the way abortion providers interpret the law. This paper presents the experiences of 40 rape survivors, including two children, denied an abortion following rape. The cases were recorded by CEHAT (Centre for Enquiry into Health and Allied Themes) in the course of building capacities of public hospitals to respond to violence against women in Mumbai, India, since 2000. We found that enormous damage is inflicted on women and girls by misinterpretation of the laws on abortion and rape, combined with a lack of understanding of the serious damage rape does, particularly repeated rape, and alongside other forms of assault and abuse. Domestic laws in India place a clear legal responsibility on health professionals to offer immediate care and treatment to rape survivors, including timely access to abortion. It is past due time for both the government and the courts to begin to hold themselves and health professionals accountable for ensuring this care is provided.

Introduction

India has passed several laws that recognize the right to health care for survivors of domestic and sexual violence. These include the Protection of Women from Domestic Violence Act (PWDVA) 2005, the Protection of Children from Sexual Offences Act (POCSO) 2012, and relevant clauses on sexual violence in the Criminal Law Amendment Act 2013. 1 As a response to overwhelming evidence showing that India’s health systems mistreat rape survivors, the latter two laws mandate that public and private hospitals provide immediate treatment for survivors of sexual violence. They also mandate punishment for failure to do so. 2

The POCSO 2012 requires that all registered medical practitioners render emergency medical care to attend to the needs of children who have been raped, including access to abortion. That the immediate treatment for survivors of rape must include emergency contraception and abortion services has also been clearly mentioned in policy guidelines issued by the Ministry of Health and Family Welfare in Guidelines and Protocols for medico-legal care for survivors/victims of sexual violence. 3 In reality, however, rape survivors who become pregnant, both girls and women, face procedural gaps and a range of barriers in accessing abortion services.

This paper presents the experiences of 74 people (72 women and 2 children) who had been raped and who sought an abortion. Fifty-five of the women sought an abortion before 20 weeks of pregnancy, and 19 women and the two children did so after 20 weeks. None of those who sought an abortion after 20 weeks of pregnancy was able to have an abortion, not even the two children, even though they followed the procedure for seeking permission from a high court to do so. Of those who sought an abortion before 20 weeks, which should have been granted without delay or question, only 36 of the 55 were able to have an abortion.

The paper concludes by suggesting ways of ensuring easier access to abortion for rape survivors.

Barriers preventing rape survivors from accessing abortions

CEHAT (Centre for Enquiry into Health and Allied Themes) is a Mumbai-based research institute that has been working on health and human rights since 1994. As part of our program on violence and health, we have worked closely with hospitals in Mumbai since 2000 to improve their responses to violence against women and help them build their capacity to provide psychosocial support to survivors and their families. This entails ongoing training of health providers, counselors, and direct intervention services for women who have experienced violence. This work puts us in close contact with other parts of the public health system, including abortion service providers, and gives us the opportunity to understand the barriers women face when they seek abortions after rape.

Experiences described in this paper come from three sources of data gathered by CEHAT during the course of our work:

A study conducted by CEHAT in two antenatal departments of public hospitals where we asked all the women about their experience of domestic violence and offered counseling services. 4 Of the 142 women who disclosed abuse in their marriages and consented to the counseling intervention, 31 reported that their current pregnancy was the result of rape by their husbands. All 31 sought abortions. Of these, 24 women were less than 20 weeks’ gestation but only five of them were able to have an abortion. Of the rest, the 19 women who were less than 20 weeks and the seven who beyond 20 weeks were all forced to continue their pregnancies.
The service records of crisis intervention services provided by CEHAT to survivors of sexual violence at three public hospitals from April 2008 to March 2015. 5 Of the 728 women who received these services, 43 reported becoming pregnant as a consequence of rape. Of them, 31 were within 20 weeks of gestation and received abortions, while 12 who had sought abortions after 20 weeks of pregnancy were refused.
Legal interventions initiated by CEHAT in two cases of child rape where pregnancies were discovered only after 20 weeks of gestation. An appeal was made to the High Court and the Supreme Court for permission to terminate the pregnancies. 6

The women in the public hospitals who had disclosed rape by their husbands reported that health care providers imposed the following barriers, which in many cases led to the denial of abortion services in the hospital.

1. Abortion refused because it was their first pregnancy

These women were told that abortion may cause secondary infertility, and that it may be a threat to their lives. Even though CEHAT provided factual details that contradicted their claims of such risks, the health care providers insisted on what they said and reiterated that abortion was a risk they would not allow.

2. Misinformation about medical abortion pills

Women who reported in an early stage of pregnancy and requested medical abortion pills were turned away. Providers said the pills may cause life-threatening bleeding, and that excessive bleeding would necessitate a surgical intervention anyway. In fact the mifepristone-misoprostol combi-pack is approved by Drug Controller General of India for use up to 63 days of gestation. 7

3. Abortion offered only if woman agreed to contraception or sterilization

Women with two or more children were told that abortion would be provided only if they consented to sterilization to prevent future pregnancies or accepted a Copper-T IUD after the abortion. The abortion law does not mention such conditions, though contraception is provided if the woman herself wishes it. These conditions are a form of medical abuse, however, with a long history in India. They arise from the country’s population control policies, which were and often still are enforced with little regard to human rights. 8

4. Insistence on spousal consent

Spousal consent for abortion is the greatest barrier for women seeking abortion services. Despite the fact that the law clearly states that the providers need only have the consent of the adult (married) woman, several providers insisted on the husband’s consent or authorization. It is only in the case of a minor (less than 18 years of age) that parental or guardian consent must be obtained. This is a critical issue for survivors of marital rape because the husband may well want to exercise control over whether the woman can have an abortion. 9 Several of the women in the antenatal clinic reported having disclosed spousal abuse to their doctors, who continued to insist on the husband’s consent, ignoring the woman’s difficult situation. This is rooted in patriarchal notions about a husband’s role as decision maker, as well as a defensive practice by doctors, who claim that a husband may challenge them for proceeding with a termination without his permission. Two women in the antenatal clinic reported the following experiences.

N., age 25, was eight weeks pregnant. Her husband had been physically and emotionally abusing her throughout their four-year marriage. She did not want to continue with the pregnancy, but the doctor insisted on her husband’s signature, even after she disclosed the abuse. Having got the husband’s permission, the doctor went on to ask her to get a no-objection certificate from the police, that is, permission from the police to allow the abortion.

The doctor’s demand was totally baseless.

M. had filed for divorce after having endured her husband’s violence for over 15 years. She was living separately from him and had her child with her. The husband would barge into her house and rape her. When she discovered that she was pregnant, she sought an abortion. The doctor insisted that she either get her husband to consent or produce a divorce decree. She was able to have an abortion only after reporting the matter to the higher authorities at the hospital.

5. Insistence on D&C for abortion, requiring an overnight hospital stay

Many Indian abortion providers continue to use dilation and curettage (D&C) as the method of abortion no matter the length of pregnancy. This method is no longer recommended by the World Health Organization or the Indian Ministry of Health and Family Welfare guidelines because it requires general anesthesia and an overnight stay, and far safer and less invasive methods are available. 10 Indian doctors continue to recommend it and also insist on using it; D&C may be the only method they know, and they consider it to be the most reliable and safe method. This is more than just an issue of abortion method; it has an important bearing on women’s access to abortion. Any method that requires a hospital admission makes it difficult for women to conceal that they are having an abortion; extended family may come to know about it, thereby threatening loss of privacy and confidentiality. These are both critical for women accessing abortion care, especially if they do not want an abusive husband to know they are having an abortion.

The following two case histories are among the worst that the CEHAT team has encountered in its interaction with women in one of the public hospitals.

Insistence on delaying abortion to do a D&C despite negative social consequences for the woman.

A young woman survivor of spousal violence who was 11 to 12 weeks pregnant asked for an abortion at the earliest possible time. She had come to the hospital after she had missed her periods for two months and discovered that she was pregnant. As she was experiencing severe physical and sexual abuse from her partner, she did not want to proceed with the pregnancy. No one in the family knew about the pregnancy and she therefore wanted to end it as soon as possible. She managed to get her mother to come to the hospital with her, as a relative was required to give consent for a surgical procedure. However, the doctor told her to come back four weeks later for the abortion. The woman went to the counselor at the hospital-based crisis center and told her this. She was afraid that in four weeks her baby bump would be visible, and everyone would know she was pregnant. The counselor intervened and was told by the doctor that the “surgical procedure” was easier and safer after 16 weeks (this is often said about D&C), that she was only trained to do abortions after 16 weeks, and that the fetus was very small prior to 16 weeks so it was harder to carry out the procedure.

The counselor intervened by speaking not only to the treating doctor but to other more senior doctors. The woman was only able to have an early abortion when the senior doctors overruled the treating doctor.

Delaying an abortion on medical grounds and jeopardizing the woman’s health and life. A 31-year-old woman in an increasingly abusive marriage sought help from the hospital-based crisis center in filing a case for maintenance and divorce. She also wanted to file a police report so that her husband could be arrested immediately. However, the police did not record the complaint, but called her husband into the police station, where they threatened him and sent both of them home. A month later, the woman came back to the crisis center following a visit to the hospital gynecology department for an abortion. She told the counselor that she did not want the child at all, but the doctor told her she did not have “enough blood” (she was anemic), so an abortion could not be done. The doctor advised her to take iron tablets for a week and then come back for the abortion. She went back 10 days later, but the doctor still refused to do the abortion because she was still too anemic. At that point she was between six and eight weeks pregnant. The counselor spoke to the doctor about the urgency of the abortion. The doctor told the counselor that if after she had taken iron tablets once more, the hemoglobin levels still did not increase, they would give her a local anesthetic, and do the abortion with no further delay. She came back after two weeks and told the counselor that her community had found out that she was pregnant, as she was by then visibly pregnant. The hospital was willing to carry out the abortion at this stage, but her family and neighbors were pressuring her to continue the pregnancy. She was completely distraught and felt forced to continue the pregnancy. She had a premature labor in her eighth month, resulting in a stillbirth. She had become very weak; her situation had worsened in the last three months and she could not go to work due to pregnancy and exhaustion. She continues to live with her abusive husband. Thus, a woman who had made up her mind to leave an abusive husband, despite all the pressures, felt forced to stay in the relationship and continue an unwanted pregnancy, while the delay in receiving an abortion had severe consequences for her health and life. The treating doctors in her case were simply unable to understand her social reality and why they needed to provide an abortion urgently.

Doctors may not provide abortions because the criminal law does not require abortion to be provided in cases of marital rape. Our findings show that many women who experience marital rape, both those living with their partners and those who are separated or divorced (who may still be raped by their partners), may be refused access to safe and legal abortion in spite of the law.

Yet there is global evidence of a strong positive association between women seeking an abortion, and violence and physical abuse (defined as slapping or beating) by husbands in the year previous to the abortion. Evidence reported from India in this multi-country study also indicated that women in violent relationships were more likely to have an abortion, as well as to experience violence after (and possibly because of) the abortion. 11

Qualitative studies among women in several states of India found similar associations. 12 For example, in Tamil Nadu, qualitative interviews with 66 women and 44 of their husbands living in rural hamlets showed that non-consensual sex and sexual violence were strongly associated with the women having had an abortion and with their inability to use contraception effectively or to get their husbands’ cooperation to abstain from sex as a way to space or prevent pregnancies. Both the women and the men in this study reported that it was the right of the husband to demand sex, regardless of what the wife wanted. Several respondents noted that especially if the husband was drunk, he might demand sex and refuse to use contraception. Women who objected to having sex or who wanted to use contraception were sometimes accused of sexual infidelity and were often beaten. 13

Given this evidence, doctors need to recognize marital rape as a compelling reason for providing abortion services. Yet the law as it stands today only treats rape as a condition for which an abortion should be provided unconditionally if the rapist is not the woman’s husband or former husband. Marital rape continues to be an exception under the criminal law, even though it has been recognized as a form of violence under the civil law since 2005 in the Protection of Women from Domestic Violence Act.

Barriers to abortion

Refusal of abortion in the public sector.

The various barriers that women experience in seeking an abortion in the public health sector often push them to the private sector, if they can afford it, or to resort to unsafe abortions, which continue to be common in India. Data show that the majority of Indian women who have had an abortion report doing so at a private facility. 14 The only other option is to continue with an unwanted pregnancy. This makes them more vulnerable and unsafe if they are in an already abusive home situation.

Seeking abortion beyond the 20-week time limit

Seven women disclosed marital rape when we interviewed them at the time of their first antenatal registration at the public hospital, which was at 20 weeks of pregnancy. They did not attend the health facility earlier because their husbands were controlling their movement and forbid them to access the health service. None of the seven women wished to continue their pregnancy, but all of them were denied an abortion because the pregnancy was beyond the legal 20-week limit.

We additionally received 31 rape survivors at the crisis intervention centers located in three public hospitals. These women were raped by acquaintances. Twelve of them were able to disclose rape only after the pregnancy had advanced to a stage when it was visible. Most of the perpetrators had threatened to harm their families and repeat the abuse if they told anyone about the attacks. All 12 women said their pregnancy was an outcome of the rape and pleaded for a termination. They too were denied abortion due to advanced gestational age, without any concern shown by the health professionals about the social consequences of continuing the pregnancy. When the CEHAT team engaged with the health care providers, they suggested the women could give the babies up for adoption once they were born, with no apparent awareness of the multiple impacts on the lives of women facing this situation.

Child survivors of sexual violence seeking abortion

Two cases of child rape survivors, one age 10 and the other age 13, received a lot of public attention in India recently. 15 In each case, the pregnancy was well beyond the 20-week legal limit when the child sought access to an abortion. The CEHAT team proactively intervened in both these cases at the level of the providers as well as in the courts. In the case of the 10-year-old, expert opinion from gynecologists, as well as a statement signed by three US gynecologists with expertise in third-trimester abortion—published by the International Campaign for Women’s Right to Safe Abortion—were submitted to the Supreme Court. The opinions and statements underscored the need to terminate the pregnancy in the best interests of the child and to emphasize that a third-trimester abortion was not less safe than the alternatives. 16

In the case of the 13-year-old, CEHAT’s first intervention was an appeal to the provider to terminate the pregnancy under Section 5 of the MTP Act, which allows abortion when the life of the woman or girl is at risk. To authorize this, two medical opinions were required, but the provider referred the matter to the court. The 13-year-old child was initially taken to a private practitioner, as her parents were concerned that their daughter had gained so much weight. An ultrasound indicated that the child was 28 weeks pregnant. Due to the advanced gestational age, the medical provider sought the intervention of the Supreme Court as to whether to carry out a termination. The Supreme Court directed the state to set up a medical board and provide its opinion on a termination of pregnancy. The pregnancy was at 32 weeks when the Supreme Court ruled in favor of carrying out a procedure to terminate the pregnancy, citing grave mental trauma as the justification. But within a day or two of this verdict the child was already in labor and ended up delivering a live fetus.

The 10-year-old had been raped by her uncle. When her family realized she was pregnant, they immediately sought medical assistance so she could have a safe abortion. The hospital dated the pregnancy at 26 weeks. She and her family were referred to the district court to seek permission to undergo a termination. The district court directed the medical institute to set up a medical board to examine the child and provide an opinion on whether or not she could undergo an induced abortion. The opinion of the board was not made public except to confirm that the pregnancy was 26 weeks. The district court rejected the plea for abortion. The matter was taken to the Supreme Court of India, which requested a new medical board to provide a second assessment and an opinion. Re-examination of the child dated the pregnancy at 32 weeks. The board opined that carrying out a termination at that stage could be life threatening. The Supreme Court denied a termination of pregnancy. The child went on to deliver in a medical institution.

Obstacles in ensuring access to abortion for child survivors of rape

There are several reasons why pregnancies are already at an advanced stage when they are discovered; these became clear during our interactions with the girls and their families. To begin with, a child is very unlikely to realize that she is pregnant or that being raped could lead to a pregnancy. Hence, by the time one or more family members realize that something is not right, or that the child is pregnant, there has already been a delay of several months; that is, until the pregnancy is visible. Slightly older children, who may recognize that they are pregnant, may fear that their family members will not believe them. This too may contribute to delay in going to a health facility. Other factors, such as fear from a threat by the abuser to her life or to her loved ones can also keep the child from disclosing the violence and its outcome. Thus, in many cases, a pregnancy is detected only when the child complains of nausea or abdominal pain, or when it is visible.

Role of the courts vis-à-vis authorizing abortions after 20 weeks

As is evident from the two narratives and similar reports that are appearing regularly in the media, the courts are being inundated with pleas from women and girls seeking their authorization for abortions after 20 weeks of pregnancy. But the courts find themselves in a difficult situation. 17 This is because determining whether or not an abortion after 20 weeks should be allowed for a child or a woman is a matter of medical rather than legal judgment and hence not within their purview. Therefore, the courts have invariably ordered a medical board to be established to make the medical judgment. It is important to clarify here that the MTP Act makes no mention of the need or requirement of a medical board. This has been initiated by the courts and has now become the standard. These boards are expected to evaluate the physical and mental health condition of the pregnant child or woman, advise whether or not to provide a termination of pregnancy, and submit a written report to the court. Taking cognizance of several such cases that had reached the Supreme Court, the court directed the Ministry of Health and Family Welfare to instruct all the states in India to establish a permanent medical board in all tertiary medical institutes .18 However, the medical boards in many cases appear to restrict their role to the interpretation of the MTP Act, instead of lending their expertise to assessing the extent of the physical and psychological trauma caused by the act of rape that led to the pregnancy. 19 Moreover, the members of any one medical board may or may not have expertise on or experience of abortion after 20 weeks of pregnancy, let alone at 28 or 32 weeks.

Hence, the opinions provided by medical boards in a number of cases in the past were well within the scope of the treating doctor’s expertise, yet they took an average of four weeks to be assembled, examine the patient, and debate and return an opinion. Moreover, none of the medical boards’ opinions that we have studied has raised concerns about the denial of abortion by the treating doctors despite the existence of Section 5 of the MTP Act. In fact, they did not even raise concerns about the mental trauma and anguish that survivors endure due to the delay in receiving a decision, let alone an abortion itself.

In an effort to garner support for access to safe abortion in these child pregnancies, medical opinions were sought from senior US-based gynecologists with expertise in carrying out third-trimester abortions. 20 In their letter of support, these doctors provided a comprehensive body of evidence suggesting how to safely perform a third-trimester abortion in a young child. Their letter outlines several safe procedures including use of a feticidal injection of digoxin or potassium chloride, followed by one or two days of gradual osmotic cervical dilation, and then induction of labor with misoprostol and/or oxytocin as the safest and most common way of carrying out the intervention. The letter also draws attention to the risks of continuing a pregnancy to term in children under the age of 18, citing a range of reasons, such as an under-developed uterus, narrow pelvic bones, cervix, and birth canal, and the increased risk of serious obstructed labor in a vaginal delivery, which could lead to maternal death. This evidence was made available to the medical board and was also placed on the record at the Supreme Court.

Yet, in the case of the 10-year-old, the medical board did not substantiate its claim that the continuation of pregnancy was safer for this child, who also suffers from a congenital heart condition and whose pelvic bones were under-developed compared to those of an adult woman. Despite being doctors, they did not comment on the psychological impact of a pregnancy on the child in the aftermath of rape. It is therefore critical to stress that doctors appointed to these boards may have no expertise in provision of abortions beyond 20 weeks. Nor have we heard of any training for those who may serve on these boards, to acquaint them with safe abortion guidelines for late abortions and evidence of the negative impact rape has on the lives of survivors, which we can assume is worse in the case of a child.

Yet survivors of rape continue to be compelled to approach the Supreme Court or a High Court where the judiciary routinely refer the matter to a medical board. An analysis of 74 court cases where women or girls were seeking permission for termination of pregnancy is indicative of what is happening in India. These survivors all appealed to a court for a decision between June 1, 2016, and February 3, 2018. Of 74 rape survivors, 23 were denied an abortion based on the opinion of a medical board. What is even more disconcerting is that 13 of these 23 had reached the courts through a human rights lawyer, even when the pregnancy was less than 20 weeks. Of the 74, 39 were rape survivors (in all age groups); 18 of the 39 were denied an abortion. 21 The court’s decisions appeared to be based solely on the opinion of the medical boards. The medical reports and expert opinions submitted by the petitioners (that is, the women themselves) were not considered. In many cases, the women had seen the doctor before 20 weeks of pregnancy, yet there was no action taken against these doctors for delaying the abortion until it was refused.

Moving forward

India is a signatory to CEDAW, as well as to the International Covenant on Economic, Social and Cultural Rights (ICESCR), and is therefore obligated to fulfill its obligations under these instruments, including CEDAW’s General Recommendation 35.

Our experience, as documented in this paper, shows that medical professionals’ education and training needs to include understanding of the concept of reproductive rights and the agency of those who have been raped to know what is best for them, particularly in regard to ameliorating the consequences of rape and sexual abuse. Forced pregnancy and motherhood should be considered a form of cruel and degrading treatment, and rejected.

In India, the medical profession has failed to keep up with the scientific and medical evidence and practice of carrying out an abortion safely at gestational stages beyond 20 weeks. This has in turn limited Indian women’s and girls’ access to abortion services and led to a denial of those services. There is an urgent need to teach these procedures to clinicians in India, and to equip medical practitioners to keep up with international knowledge and standards as prescribed by WHO and other experts.

The reality on the ground shows that pregnancy due to rape is not being addressed in India as either a physical or psychological health concern. Doctors turn women and girls away on flimsy grounds, even if they come before the 20-week limit, and distance themselves from providing the required care if the pregnancy is beyond 20 weeks, advising the families to go to court. There is no doubt that the reported cases are just the tip of the iceberg. Many more pleas may not even reach the courts due to social and economic barriers, and women and girls may be compelled to continue unwanted pregnancies in silence. There is an urgent need to create awareness among health professionals and judges that the rape law makes it mandatory for doctors to provide abortion without any delay for rape survivors. At the same time, doctors need to recognize that marital rape is a form of violence under The Protection of Women from Domestic Violence Act 2005, and that they have a legal duty to provide immediate treatment. Further, the law should require abortion to be provided without delay or excuse in instances of marital rape, as with all other cases of rape. Simultaneously, the criminal law should be amended to include marital rape as a form of rape, so that women may seek criminal action against their perpetrators if they wish to do so.

CEDAW’s General Recommendation 35 on gender-based violence recommends establishing state accountability in the case of failure of services to rape survivors. India has human rights responsibilities for women’s health, and must be held accountable in the periodic reports that India is obliged to submit to the CEDAW committee. The issue of denial of abortion to rape survivors needs to be raised when India is due to make a periodic report to CEDAW, through shadow report for example, and during the Universal Periodic Reviews, as well in as reports to the UN Special Rapporteur on the right to health.

In addition to its international obligations, India’s national obligation with regard to rape-related pregnancies is also clear. National guidelines issued to medical providers on provision of medico-legal care specifically state that abortion services are required for rape survivors. Failure to treat rape survivors in India is a punishable offense under Indian Penal Code 166, B. Punishment is accompanied by a fine and/or imprisonment up to one year. But since the passage of this law, not a single medical professional has been penalized when they have failed a patient. While immediate treatment does mention treatment of unwanted pregnancy, the doctors are still constrained by the MTP Act, which does not mention any penalty or punishment for denying an abortion to a woman or girl. There is only one Supreme Court judgment out of the many thousands that exist, in which the Bihar state government was asked to pay compensation to a woman who was not provided an abortion in time. 22 But the doctors went unpenalized.

Professional accountability of healthcare providers could be improved by developing guidelines and a checklist of good practice for gender-sensitive treatment for rape survivors. This could potentially reduce the barriers to reproductive health services, counseling, and abortion care for rape survivors. Such checklists and standards of practice have proven useful in reducing morbidity and mortality in surgery. Additionally, integrating a gender perspective in undergraduate medical education has proven effective in addressing provider prejudices and attitudes towards abortion and changing clinical practice. 23

Lastly, the Federation of Obstetricians and Gynaecological Societies India (FOGSI) and the Indian Medical Association urgently need to share current information about safe abortions beyond 20 weeks of pregnancy, and achieving safety in later abortions. They also need to sensitize doctors to the negative social consequences of having to continue an unwanted pregnancy following rape, especially in children, and to train clinicians in WHO-recommended methods for providing abortion care without delay. FOGSI needs to take cognizance of developments in the medical field internationally, and the legal mandate to issue ethical guidance on the treatment of rape survivors. We recommend that this be developed and adapted in line with FIGO guidelines and used widely in training.

Acknowledgments

We thank Chitra Joshi and Sanjida Arora for their support.

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