India’s amended abortion law still gives doctors, not women, the final say in terminating pregnancy. India’s move comes at a time when the landmark Roe v. Wade in the Supreme Court of the United States (US) is under scrutiny. That 1973 judgment protects a pregnant woman’s liberty to decide whether or not to have an abortion without needless government restrictions. A historic piece of legislation, it served as a beacon of hope for women around the world.
The amended MTP ACT & its rules expand access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds. After several petitions were received by the Courts seeking permission for aborting pregnancies at a gestational age beyond the present permissible limit on grounds of foetal abnormalities or pregnancies due to sexual violence faced by women. The amendment will increase the ambit and access of women to safe abortion services and will ensure dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy.
THE MTP (AMENDEMENT) ACT 2021
India’s amended abortion law was passed 50 years after the first law on the subject was brought in, the MTP Act, 1971. The MTP Bill 2020 was passed by the Lok Sabha in March 2020 . A year later, on March 16, it was passed by the upper house of Parliament and got the President’s assent as the Medical Termination of Pregnancy (Amendment) Act, 2021. The Government has notified new rules under MTP Act, 2021. These rules have been enacted under Section 6 of the Medical Termination of Pregnancy Act, 1971 (MTP Act).
Prior to this, on September 24, the Medical Termination of Pregnancy (Amendment) Act, 2021 came into force
These are the key points that MTP (Amendment) Act, 2021, has brought in:
- The bill most significantly raises the upper gestational limits for the two categories of permissible abortions envisioned in Section 3(2) of the 1971 Act. The gestation limit for abortions has been raised from the earlier ceiling of 20 weeks to 24 weeks, but only for special categories of pregnant women requiring approval of two registered doctors.All pregnancies up to 20 weeks require one doctor’s approval.
- This Amendment Act modified Section 3 of the MTP Act to extend the upper limit for medical termination of pregnancy to 24 weeks, from the present stipulation of 20 weeks, for certain categories of women who are defined under these newly enacted Rules .Under Rule 3-B of the Medical Termination of Pregnancy (Amendment) Rules, 2021, the following categories of women are eligible for termination of pregnancy up to 24 Weeks:
- Survivors of sexual assault or rape or incest;
- Change of marital status during the ongoing pregnancy (widowhood and divorce);
- Women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];
- Mentally ill women including mental retardation;
- The foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and
- Women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the government.
- “Pregnant Women” can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status.
- There is also no upper gestation limit for abortion in case of foetal disability if so decided by a medical board of specialist doctors, which state governments and union territories’ administrations would set up.
- The rules state that such a decision can be taken by the medical board only after due consideration and ensuring that the procedure would be safe for the woman or rejection of a request for termination within three days of receiving the request.
- The Amendment Act inserts the following definitions in the 1971 Act:“Medical Board” means the Medical Board constituted under sub-section (2C) of section 3 of the Act;’&“termination of pregnancy” means a procedure to terminate a pregnancy by using medical or surgical methods.’
- The Amendment Act inserts new section 5A which provides that –“No registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force. Whoever contravenes the provisions shall be punishable with imprisonment which may extend to one year, or with fine, or with both.”
BACKGROUND OF LAW ON ABORTION
The law on abortion in India is primarly governed by sections 312-316 of IPC and provisions of MTP Act 1971 which is an exception to the section 312 of IPC which criminalised “voluntary causing a woman to miscarry” and punishment of 3 years but MTP act laid down permissible grounds under which woman could take medical termination . The Act provided that abortion required the opinion of one doctor if done within 12 weeks of conception and two doctors if done between 12 and 20 weeks. The act laid down the relief only for pregnant married women along with the condition to get consent from husband and if not married then family member must accompany.
REASONS THAT LED TO AMENDMENT IN OLD MTP ACT 1971-
- Unsafe abortions which are among the most common causes of maternal deaths in India. In 2015, 1.56 crore abortions were accessed annually in India, according to a study in The Lancet. Of these, 78% or 1.23 crore were conducted outside health facilities due to restrictions .some cases around this in past year included a case in which A doctor denied an abortion when a minor was found to be 19 weeks pregnant as a result of rape. Till the case was taken to court, the 20-weeks marked surpassed, and she was forced to give birth to the rapist’s child.
- Restrictive abortion laws are associated with higher levels of maternal mortality.
- Global examples show that easier access to abortion encourages women to seek pregnancy termination in the earlier weeks of gestation, resulting in better-managed abortions.
- The earlier act of 1971 provided gestation period o upto 20 weeks only in which lot of couples suffered like in one case a couple caring for a child with special needs was determined with a foetus having DownSyndrome . The court, however, denied their request of termination due to exceeding 20 weeks of gestation period.
- During pandemic abortion rate enhanced as lot of doctors were attending emergency cases , restrictions to travel due to which women had to struggle to access reproductive health which further pave the way to domestic violence .
THE WORTHY POINTS OF AMENDMENT
- Increase in gestation period from 20 to 24 weeks
- Recognition of pregnancies outside traditional marriages : by changing the definition from “pregnant married woman “ to “pregnant woman” and from “ her husband” to ‘her partner’, hence putting an end to statutory discrimination between married and unmarried woman .
- Inclusion of unwarranted pregnancies due to failure of contraceptives , result of rape finally ending the litigations that are pursued by rape survivors seeking medical termination upto pregnancy of 20 weeks.
- Setting up of medical boards by State or UT concerned decreasing the burden on pregnant women of moving to courts to get relief leading to physical and mental anguish.
LIMITATION OF THE AMENDED ACT
This quote by Margaret Sanger aptly describes the downsides of the MTP Act, 2021. The Act, however, progressed from the original legislation but still does not match with the contemporary viewpoints of the landmark judgments. The Act requires the opinion of a medical practitioner for the termination of a pregnancy and does not leave it solely to the woman, which is a major drawback.
In other words, this Act does not give the woman the right to an abortion, but it is a mere exception under some conditions which may or may not be denied by the medical practitioner, thereby enabling the woman to depend on the doctor’s discretion rather than her own freewill.
The MTP, 2014 Bill was more forward-looking and aligned with current Indian situations; however, it was unable to become an Act due to opposing proposals submitted in relation to the original act. The 2014 Bill required the termination of a pregnancy within 12 weeks at the request of the woman and did not require the opinion of a medical practitioner, unlike the original act.
Section 312 of the Indian Penal Code that labels “causing miscarriage” as an offence has not been scrapped yet. The MTP Act is seen as an exception to IPC; that is, abortion is available only under the conditions specified in it.
The removal of the gestation limit in the case of “substantial foetal abnormality” and counting “differently-abled women” as vulnerable – both these intents of the amended law encroach on the rights of persons with disability, said activists
The law also makes no mention of providing financial and logistical aid to pregnant women who want to access medical boards. Making a woman who is pregnant with a disabled foetus run to medical boards where doctors and officials will decide for her “is an invasion of her privacy, invasion of her .
The MTP Act 2021 also contradicts the Supreme Court’s 2017 privacy judgement (Justice KS Puttaswamy versus Union of India and others), which ruled that a woman’s right to make reproductive choices is a dimension of personal liberty as understood under Article 21 of the Constitution.
Similarly, medical abortion pills are classified as Schedule H drugs for which a pharmacist must maintain a record of sales under the Drugs and Cosmetics Act. This violates the confidentiality promised by MTP Act 2021, abortion advocates say.
Abortion remains stigmatised in India, even within the medical fraternity, as India Spend reported in September 2020. There have been several reports of women being denied abortions on “moral” grounds by doctors or being asked to bring partners or parents along for the procedure. Hence even after amendment it still has doctor centric approach. So the need of hour requires law to give the right to women to exercise abortion as safe and accessible method on their own choice as it is about their own body and mental health. The fact that a woman’s right to abortion is exercisable only in the face of such compelling circumstances renders motherhood the norm, and abortion the exception. As such, the bill seeks to cater to women “who need to terminate pregnancy” as against “women who want to terminate pregnancy.” This ableism becomes stark when the said 24-week limit, which is purportedly dictated by scientific and legislative wisdom, is completely lifted where the termination of a pregnancy involves “substantial foetal abnormalities”. Thus, while the revised upper gestational limit is by itself laudable, when read together with Section 3(2B) of the bill, a strange dichotomy emerges.
This article is written by Punyata Kakar, she is final year student at Department of Laws, Panjab University Chandigarh.