This article has been authored by Roopal Dhoot, a second year student at ILS Law College, Pune.
Medical Termination of Pregnancy (“MTP”) is the induced termination of a pregnancy (abortion) by a medical professional. Abortion in India is regulated by the Medical Termination of Pregnancy Act. This act was enacted in the year 1971 to reduce the instances of illegal abortions, which were a major reason for the rising mortality rate amongst mothers. It was also enacted by keeping in mind the purpose to encourage family planning and population control.
Before 1971, termination of pregnancy through induced abortion was declared as a crime by the Indian Penal Code 1860, and the women getting the pregnancy terminated were liable to be punished with imprisonment up to seven years or a fine or both. It was only allowed in the case where the life of the pregnant woman was in danger.
Medical Termination of Pregnancy Act, 1971
In the MTP Act 1971, abortion was allowed by medical practitioners (gynaecologists and obstetricians) on certain grounds. The termination of pregnancy is permitted only when:
1. The continuation of the pregnancy would involve a risk to the life of the pregnant woman,
2. Cause grave injury to her mental or physical health (including rape and failure of birth control measures for a married woman),
3. In the case of foetal abnormalities,
4. At any point during the pregnancy if there is an immediate necessity to save the woman’s life.
If any of the above-mentioned conditions are fulfilled, then pregnancy maybe terminated up to 12 weeks based on the opinion of one doctor and up to 20 weeks based on the opinion of two doctors and beyond 20 weeks the abortion is considered as illegal. Even if all these conditions are fulfilled, then also abortion must be conducted at a hospital established or maintained by the government or a place for the time being approved by the government. A pregnancy cannot be terminated without the consent of the pregnant woman.
Demands for Amendment
Several writ petitions have been filed by women seeking permission to abort pregnancies beyond 20-weeks due to foetal abnormalities or rape. In 2019, a brutally raped minor was forced to give birth to her rapist’s child after a High Court denied her request for an abortion. It was first examined by a doctor at 19 weeks of pregnancy but the doctor refused to perform an abortion as it was not detrimental to her health. It was solely at discretion of doctor that a woman may or may not undergo abortion. By the time her petition was heard by a court of law, her pregnancy had crossed the 20-week limit.
Scientists were also of the view that the 20-week limit on abortion is based on outdated medical concepts from the 1970s. New developments in medical science allow for safer abortions in advanced stages of pregnancy.
For pregnant women approaching the court for legal permission for termination after 20 weeks, the process is often stressful for a mother already distressed by the bad news regarding her baby. This has also spurred a cottage industry of places providing unsafe abortion services. In India, about 80% of abortions started taking place outside registered hospitals, and the extension of the time limit will ease the process and allow the legal system to take care of them. This will also allow women to access quality healthcare.
Medical Termination of Pregnancy (Amendment) Bill, 2020
On 17th March 2021, the lower house of the Indian Parliament passed the MTP Amendment Bill 2020, a new set of amendments to this nearly five decades-old law.
The amendments in the bill are as follows:
● The bill allows unmarried women also to terminate a pregnancy if it is due to the failure of a contraceptive method or device. Earlier only married women have this right.
● A registered medical practitioner may only reveal the details of a woman whose pregnancy has been terminated only to a person authorized by law.
● There is an extension of the time limit, now the pregnancy maybe terminated up to 20 weeks based on the opinion of one doctor and up to 24 weeks based on the opinion of two doctors. Only in the case when the foetus has abnormalities, abortion post 24 weeks will be allowed only with the approval of the medical board with at least five experts.
Analysis of how the amendments in the bill are flawed
The primary purpose of this law was population control and family planning and it lacks a rights-based framework. The law is doctor-centric and it over-medicalizes abortion by vesting the decision to abort with the doctor and stripping pregnant people of their right to bodily and decisional autonomy.
Firstly, the amendments do not recognize abortion by will at any stage of the pregnancy despite the evidence that medical abortion is safe and non-invasive. Instead, the bill continues to require a doctor’s approval for the abortion and limits the circumstance under which the approval can be given. Although the time limit has been increased but the pool of providers remains the same.
Secondly, the gestational limit extension beyond 24 weeks is available only to pregnant women with foetal abnormalities. The foregrounding of such a paternalistic and ableist framework within which to expand abortion access needs to be interrogated. Abortion access should be within the framework of autonomy and self-determination rather than focusing on some specific grounds. In cases of rape too, where the pregnancy exceeds 24-weeks, the only recourse remains through a writ petition.
Thirdly, the move to remove the upper gestation limit only in the case of foetal abnormalities is indeed welcome but here it comes with a rider as it mandates third-party authorization for abortions post 24 weeks through the constitution of the medical board with at least five experts. Now the board will decide if the women can have an abortion on this ground. It takes the decision-making power from women and her doctor to a “medical board” consisting of several members. In this way, it is legitimizing third-party authorization which was never the intention of the original MTP Act. Subjecting a pregnant woman to multiple medical check-ups and assessments by an unfamiliar board in no way advances their rights.
Fourthly, for any legislation to be hailed as progressive, it should benefit a vast majority of the target audience the policy is meant to serve. The proposed amendment fails this test miserably. For the overwhelming majority of the estimated 15.6 million women (over 99%) who seek to terminate their pregnancy every year, this amendment does not change anything. Even for the small number of women who will benefit, these amendments do not go far enough.
Fifthly, the act requires abortion to be performed only by doctors with a specialization in gynaecology or obstetrics. There is a 75% shortage of such doctors in community health centres in rural areas, making it difficult for many to access safe abortions.
Many countries both developed and under-developed have a much liberal abortion law. Seventeen countries including Bangladesh, Sweden allows nurses and non-physicians to provide first-trimester abortion (within 12 weeks of pregnancy), and over 90% of abortion in India is estimated to be first-trimester abortion. There are countries like Canada, China, Vietnam where there is no prescribed gestational limit, where abortion is a women’s right.
The law miserably fails to draw inspiration from 2017 the Supreme Court landmark judgment on Puttaswamy, while recognizing privacy as a fundamental right it held that, “Privacy includes at its core the preservation of personal intimacies, marriage, procreation, the sanctity of family life and sexual orientation.” Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. The amendments in this bill perpetuate the subordination of a woman’s determination of her reproductive freedom to the medical and legal regime.
In a country where unsafe abortion is one of the leading causes of maternal mortality, taking a toll of 13 lives each day, the health care system and the law will need to do much more than the proposed MTP Amendments Bill, 2020. This long journey of legislating access to safe abortion which was started in 1971 can truly be said to conclude only when India completely decriminalizes abortion. Meanwhile, there is a need to create a rights-based legal framework on abortion and this would require the government to review what it proposed and overhaul the amendments. The delay in this will force the women to go underground and seek help from unregistered and quack doctors which puts their lives at risk. Women should rely on the laws at the time of distress and not think of a way to evade them. Law should serve the needs of the people and not become a burden on them.