Creating a Positive ‘Nudge’: Revisiting Abortion Laws in India

– Pranay Agarwal

Introduction

Abortions have been a contentious issue among policymakers across the globe, prophesising and challenging the practice and the laws governing it. Abortion laws vary vastly across the world, subject to gender development and the cultural and ethnic eccentricities of the national communities. In this sense, India has been a pioneer of liberal abortion laws with over 50 years since the enactment of the Medical Termination of Pregnancy (MTP) Act, 1971 [“the Act”], legalize and promote safe abortions. The law gave extensive rights to women to terminate unwanted pregnancies, thus safeguarding their reproductive rights and liberty. Although the law was intended to function as a ‘social engineering’ tool, various parts of the nation continued to witness unsafe abortions carried on by unqualified practitioners.

To fill the holes left in the faulty implementation of the Act, the government brought some major reforms in the abortion laws of India through the recent amendment of 2021. This article is an attempt to address the behavioural changes brought upon by the amendment and to evaluate the efficiency of the amendment in altering the behaviour of the people towards a better outcome.

Medical Termination of Pregnancy Act, 1971: A Literature Review

The journey of abortion laws has been a ‘rollercoaster ride’ in India. While the termination of pregnancy voluntarily is an offence under the Indian Penal Code, 1860, the introduction of the Act saw an upliftment of the rights and maternal health of women. Under the Act, abortions were allowed in certain cases where the continuance of pregnancy would be injurious to the health of the woman or in case of foetal abnormalities or contraceptive failure, thus providing not only for physical but also for the mental health of women.

With the aim of reducing high maternal mortality due to unsafe abortions, the Act provided for a secured abortion by a registered and qualified medical practitioner upto 12 weeks based on the advice of one practitioner and upto 20 weeks conditional on the advice of two practitioners. The law in a substantive sense was a masterstroke in order to improve the status of women and ensure their reproductive health. However, from a pragmatic angle, the law seems to have failed to provide for the reproductive rights of the women in a true sense.

Unsafe abortions are one of the highest preventable causes of maternity deaths where preventions like contraceptives and better abortion facilities can greatly affect the maternity and morbidity rates in India. However, it is pertinent to note that 67% of the abortions in India are unsafe with unsafe abortions as the third biggest cause in causing maternal mortality in India. Moreover, it is highly probable that the statistical facts are under-estimated due to under-reporting of the induced abortions in the rural areas. While there can be various reasons for the failure of law in bringing the intended social change, it is certain that the law has been unable to use its existing resources and institutions to reach an efficient solution to the problem of unsafe abortions in India.

How a negative ‘nudge’ is created?

From a classical viewpoint, economists have treated individuals in the market as rational beings, capable of making rational decisions in favour of choices for their maximum benefit. However, from a practical point of view, it is often seen that the behaviour of individuals is susceptible to various biases and pre-conceived notions which often lead them to make irrational decisions. Such subprime decisions can be avoided for good through apparently small and subtle solutions (“nudges”) which can lead to not only disproportionately beneficial outcomes but will also not restrict the freedom of choices enjoyed by the individuals in the free market. In simple terms, the behaviour of individuals which is based on cognitive biases can be altered towards an intended choice through subtle changes or “nudges” that will indirectly influence them to make the intended choice.

If seen from a behavioural perspective of economics, the law is intended to act as a social catalyst in order to achieve an efficient solution to social problems. The Act was also a benign initiative in this sense, with the aim of providing safe abortion facilities to women. However, the “liberal” law has imposed several conditions in order to terminate pregnancies, thus becoming rather “restrictive” in the real sense. According to Section 3, pregnancy can be terminated only on limited grounds, which include the failure of contraceptives, foetal abnormalities and risk to the life of women.

Such conditions imposed upon abortions have restricted the scope of legal abortions and have indirectly resulted in women and their families to opt illegal means. Such indirect influence of the restrictions on the minds of women and their families has thus resulted into creation of a “negative nudge” against safe abortions. The practical implication of the phenomenon is that the women due to certainty of their choice of abortion prefer abortions from unregistered and unqualified practitioners, and thus choose unsafe option over the safe abortions. The problem is even magnified in the rural parts of the country, where the lack of registered practitioners and less awareness about contraceptives have practically deprived the women of their right to get an abortion done, which leads them to choose unsafe methods out of helplessness. Though the restrictions imposed by the legislation may be intended to balance the rights of the women and the foetus such restrictions on abortion practices have adverse implications on maternity mortality due to unsafe abortions.

Towards creating a positive ‘nudge’: The 2021 Amendment

Since the enactment of the 1971 Act, public discussions related to the abortions induced mortality and morbidity rate have been practically absent. However, in the past decades, various research scholars and feminist thinkers have raised serious women rights issues in the implementation of the law at the ground level. The reports and suggestions raised by them drew attention of the policymakers toward much needed reforms for ensuring efficiency in the abortion laws so as to achieve its object of securing reproductive rights for the women. Moreover various recent judgments of the High Courts have hinted towards the promotion of reproductive rights of women in the abortion laws of the country. In this regard, the recent amendment to the Act is seen as a historic move to provide universal access to reproductive health services in India. While the amendment has been primarily hailed for its universal access to comprehensive care to women and its contribution in meeting the SDGs, less attention has been given to the “positive nudge” it intends to create for women and their families.

In a big move, the amendment has relaxed various provisions of the original law by increasing the upper time limit to terminate pregnancy from 20 to 24 weeks and making the requirement of consulting from two to one practitioner in cases of upto 20 weeks of conception. Further, in an attempt to move with the advancement in the society, the law even provides rights to unmarried women to abort their pregnancy within the specified time period. While such relaxations in the provisions along with the additional institutional and ethical improvements in the procedure provide an incentive towards the safe abortion practices, it is highly doubtful that such incentives will lead to an efficient outcome, given the lack of awareness and institutional support at the ground level.

In this regard, a “positive nudge” has to be established by subtle policies rather than comprehensive legal reforms which may be substantially beneficial but are practically unachievable. The “nudge” in this sense, can therefore be established by local level policies like free check-ups sponsored by the government, relaxing the ground of failure of contraceptives in rural and backward areas where awareness needs to be established in this aspect and establishing more awareness programs and client-centred counselling sessions. Further, serious regard has to be given to the confidentiality factor to remove the fears of privacy violation in the minds of families while going for safe abortions. Furthermore, to improve the institutional support, the practitioners can be given monetary or other benefits as incentives to efficiently work in these areas.   

Conclusion

The unfilled gaps of the Act of 1971 have long led the women deprived of their reproductive rights and have instead led them in making an irrational decision towards unsafe abortions. With the enactment of the 2021 amendment, the government undertook to relax the stringent provisions of the law so as to provide a “positive nudge” in the direction of safe abortions. However, little attention was given to the actual problem of institutions and impractical grounds of termination in the vulnerable areas where such problems led to increase in unsafe abortions and higher mortality rate among pregnant women, thereby creating a ‘negative nudge’.

In this regard, the Netherlands stands as a shining example for the whole world where not only liberal laws are in place, but also infrastructural and institutional support has made it an epitome of abortion laws safeguarding reproductive rights. Therefore the need of the hour is to create a “positive nudge” towards safer abortions through institutional support and relaxing certain conditions of such termination. However, at present, the law has given a wonderful opportunity away to make reparations to the defects of the original law. Certainly, there is a huge gap to be covered to achieve the intended consequences and behavioural actions.

Pranay Agarwal is a law student at Gujarat National Law University