Abortion for adolescents: Does the law enable or stifle?
The Medical Termination of Pregnancy Act, 1971 (“MTP Act”) is a piece of legislation that seeks to regulate the practice of abortion in the country. By making registered medical practitioners as the sole professionals to carry out the abortion procedure, its aim is to ensure safe abortions in the country. However, despite such an objective certain provisions in the MTP Act act as barriers to safe abortion practices. Some instances are provided below:
- As per the MTP Act, any girl below the age of 18 years or 18 years of age but mentally ill, who needs to access abortion services needs the consent of her ‘guardian’ in writing. This is a problematic provision because first, sex itself being a taboo topic of discussion in Indian homes and families, the adolescent might never feel comfortable to approach guardian. This is a possibility because there might be a consideration of shame and guilt in the family with respect to pregnancy and abortion, especially when the girl is unmarried or in her adolescence.
- Secondly, the case of the girl below the age of 18 years who wants to access abortion will fall under the aegis of the Protection of Children from Sexual Offences Act, 2012 (“POCSO“) as the girl is a ‘minor’ under the eyes of the law and law doesn’t assume consent below 18, hence it would be considered child sexual abuse. This also means that the medical professional to who the girl has come seeking abortion services would also need to report this instance, as that is a requirement under POCSO. this will induce fear in the minds of adolescent girls who want to seek safe abortion services.
- Third, the term ‘guardian’ is defined in the MTP Act as “a person having the care of the person of a minor or mentally ill person”. This is a vague formulation as the terms ‘having the care’ have a wide scope of interpretation. It could mean a parent, a friend, a relative or anyone else. Because of its vagueness, there are chances of it being misused too. This adds on to the complication of a medical service provider as she might be at a loss to determine who would qualify as a ‘guardian’ according to law.
- Lastly, because of the existence of such provisions in law, even medical service providers are at a loss to provide abortion services to a woman below the age of 18 years without the consent of her guardian. Even though they might think in the best interests of the girl, the law prohibits them from doing anything if there is no consent from the guardian. This increases the chance of unauthorized and unsafe abortion practices.