This article has been authored by Sanya Shukla, a fourth-year student at Amity Law School, Delhi.
The Medical Termination of Pregnancy (Amendment) Bill 2020 was passed by the Union Cabinet, to amend the Medical Termination of Pregnancy Act (MTP), 1971. The Bill was passed in the Lok Sabha in March 2020, and is due to be discussed in the Rajya Sabha before it becomes an Act, however this has been delayed owing to the Covid-19 pandemic.
While the proposed amendments as they currently stand are steps in the direction of a more progressive law, they have a selective focus and lack intersectionality.
As explained in a Tusharika Mattoo’s article on The Wire, the women's bodily autonomy when it comes to reproductive health is wholly absent and fails to provide women with the independence over their body as one deserves.
The ‘right to abortion’ of women is an extension of Article 21(Right to Life) of the Indian Constitution and denial of such right is a direct and clear violation of the said Article. As stated by the Hon’ble Supreme Court in Suchita Srivastava judgement , ‘There is no doubt that a woman’s right to make a reproductive choice is also dimension of ‘personal liberty’ within the ambit of Article 21 of the constitution. It is imperative to understand that while reproductive choices can be exercised to procreate, they can be equally exercised to abstain from procreating. Though the Bill aims at safeguarding the ‘right to privacy’ of women who have terminated their pregnancies, it falls short of achieving the core aspects of this right.
The Supreme Court, in Puttaswamy judgement declared that “privacy safeguards ‘individual autonomy’ and recognizes the ability of the individual to control vital aspects of her life.” Therefore, if women are denied a say in deciding what happens with her body when she is pregnant, her bodily integrity is violated.
Extension of period of termination of pregnancy
By amending Section 3(2)(a) & (b),the Bill seeks to extend the period of termination of pregnancy from 12-20 weeks to 20-24 weeks. For this purpose, the consent of one medical practitioner would be required to terminate the pregnancy until 20 weeks and the consent of 2 medical practitioners is needed for the period between 20-24 weeks. It is a necessary change that would now bring within its ambit those persons that fell into the exceptional circumstances of terminating pregnancy beyond the 20 week mark and required the woman to approach the High Court or Supreme Court under Articles 226 or 32 of the Constitution of India as per the current law, making the process lengthy and cumbersome.
In Kalpana Singh v. Government of NCT of Delhi & Ors, while permitting the petitioner to medically terminate her pregnancy, the Court stated that it was not violating Section 3 or Section 5 of the MTP Act. “ In a case where the condition of the foetus is, as in the present case, incompatible with life, the rigour of Section 3(2) deserves to be relaxed, and the right to terminate the pregnancy cannot be denied merely because gestation has continued beyond 20 weeks.”
This decision derives support from various judgements decided by the Supreme Court, and includes Tapasya Umesh Pisal vs Union Of India, Mrs. X And Ors vs Union Of India And Ors and Sarmishtha Chakrabortty vs Union Of India Secretary to name a few which dealt with common issues revolving around danger to the lives of the mother and child and termination of pregnancy beyond the upper limit of gestation.
Though it is a positive change in increasing the upper limit of termination of pregnancy, the issue with this remains that the woman would still not have complete autonomy in terminating the pregnancy if she wants to and fails to ignore the rights of the person who doesn’t want to continue the pregnancy.
Permission from medical board needed beyond 24 weeks
The Bill requires the constitution of a medical board as per S.3(2C) consisting of a gynecologist, a pediatrician and a radiologist for termination of pregnancies beyond 24 weeks provided under S.3(2D).
Even in an urban setting, the practicality of constituting a Medical Board in respective states/UTs is debatable. It is far from reasonable to expect that in a remote set up like rural areas where access to even basic healthcare is extremely sporadic, a pregnant woman would have to go out of her way to seek permission for surgery from a state board.
This complicated and tedious procedure of approval is sure to lead to more delays -which, especially during the third term, can increase the risks for the person seeking the abortion. There is also no clarity as to who would ensure access to the medical board and no mention of financial support that might be needed to contact the medical board.
Special categories of women
As per the Bill, the upper limit of termination of pregnancy is proposed to be increased from 20 to 24 weeks. However, upon reading sub-section 2(b) of S.3 of the Bill, it can be concluded that this extension of the limit will only apply to special categories of women. The “special categories of women” mean to include rape survivors, victims of incest, the differently-abled and minors.
In the case of Murugan Nayakkar vs Union Of India, the Hon’ble Supreme Court permitted the medical termination of pregnancy of a 13 year old girl who was allegedly raped and sexually assaulted. The Court stated that, “the victim has already suffered trauma and it cannot further traumatize the victim.”
It is ignorant towards the experiences of other marginalized people such as migrant workers, displaced persons, trans and non-binary people, people who experience intimate partner violence, among others. Further, it fails to take into account factors such as insufficient means to get a timely diagnosis and information.
The Bill contains an addition of a privacy clause (Section 5A)which states that revealing the name and other details of a woman wanting to terminate a pregnancy is punishable, and may only be revealed to a “person authorised by law”. In simple words, it means that the woman’s confidentiality is preserved – and breaching this confidentiality will result in imprisonment and/or fining.
The language of the Bill indicates that the details can be shared with a person ‘authorised by law’. This could compromise the confidentiality of the individual, thus defeating the purpose of the privacy clause.
Moreover, this is conditional– it doesn’t apply to minors. Though not clearly stated, it stands in contradiction to the Bill based on two legal discrepancies.
Firstly, in consonance with the current law, a female under the age of 18 cannot consent to an abortion. Instead, it requires the consent – and hence prior knowledge – of a parent/guardian. This makes the system unapproachable to a teenage girl seeking a safe abortion who wants to keep such information confidential.
The second discrepancy is derived from Section 375 of the IPC which makes sexual intercourse with a minor (regardless of consent) statutory rape. According to the Protection of Children from Sexual Offences Act, 2012, by virtue of sections 19 & 21, if a person has knowledge that a sexual offence has been committed against a minor, they are bound to report it to the police and if they fail to do so, can be imprisoned for upto 6 months or fined or both.
So, in the case where an underage girl goes to the doctor for procuring an abortion, the doctor would be legally bound to report it as penetrative sexual assault – something the girl might not want. The information that the girl would have wanted to keep confidential suddenly becomes a matter of the state.
Wording of the Bill and certain terms
Both the MTP Act, 1971 and the Amendment Bill allow ‘pregnant women’ to terminate a pregnancy. This reinforces the concept of gender-binary which continues to be a long-standing battle in terms of recognition and fails to extend the same rights to trans, intersex, and non-binary people. This can be corrected by replacing the term ‘pregnant woman’ to ‘pregnant person’.
Apart from the more prominent issues within the law, there continue to be some smaller but crucial details that the current legal framework turns a blind eye to. For example, a more compassionate and holistic legal framework which includes provisions for individuals who are victims of adverse domestic circumstances, abuse and disabilities can be added and granting them access to procure late abortions within the 20-24 week gestational period (a provision that in the proposed amendment Bill is reserved for ‘special categories’).
As scrupulous as it sounds, importance should also be given to the language the law uses – the term ‘pregnant person’ could replace ‘pregnant woman’, or ‘foetal anomaly’ could be used rather than ‘foetal abnormality’ as have been done in the past – the MTP Act (Amendment) 2002 had changed the word ‘lunatic’ to ‘mentally ill person’, and the 2020 Bill has changed the word ‘husband’ to ‘partner’ in Section 3 so that the marital status of the woman is no longer an issue, which is a positive change, however, such changes are a negligible effort towards an equal society, especially considering the fact that we have had decades to develop the law.
While this Bill is no doubt an upgrade from the legislation that is currently in place, there’s still a lacuna for improvement – and the people of India deserve as much. It is of utmost importance to formulate a legal support structure that eases the process instead of complicating it further
At the grass root level social legislations need to be incorporated into medical curriculums and school education. There is a need for better communication and awareness about abortion and its related Acts and systematic breakdown of associated stereotypes, which can be achieved through repeated and unrelenting emphasis on the need to uphold women’s autonomy and bodily integrity.
India as a country continues to provide abortion using a needs-based approach rather than a rights-based approach. It is the need of the hour to adopt a rights-based approach towards abortion and reproductive health. Now is the time for our legal system to show that it is not a barrier, but a facilitator.