“No woman can call herself free who does not own and control her body.”
-Margaret Sanger
A study in the Indian Journal Medical Ethics of 2015 has observed that 10-13% of maternal deaths in India can be imputed to unsafe abortions. It severely translates into at least six to seven women losing their life due to unsafe abortions every day.
The Medical Termination of Pregnancy (MTP) Act, 1971 is the law that regulates medical termination of pregnancy or abortion in India, the legislation defines medical termination of pregnancy as an untimely termination of the foetus. The law enacted close to five decades ago has seen various amendments, however, the amendment bill of 2020 is termed by many groundbreakings. Prior to this bill, an adult woman could get an abortion until 20 weeks of gestation provided she had sought advice from 2 medical practitioners and complied with all other necessary condition set as per the MTP Rule. Any abortion beyond 20 weeks was only undertaken to either save the life of the mother or prevent a child with serious diseases and abnormalities from being born. The present amendment looks to increase that upper limit from 20 weeks to 22 weeks, the decision has gained widespread popularity due to great advancements in medical science ensuring safer abortions.
Recently in the case of Kottaichemy v. State of Madras, a brutally raped minor was forced to give birth to a child because the High Court denied the permission for abortion as the time had elapsed due to the limitations under MTP Act, 1971. Although she was examined by a doctor after 19 weeks of pregnancy, her doctor refused to perform an abortion even though it was permissible under the law. By the time her petition was heard by the court, her pregnancy had crossed the 20-week limit. This is not only the tragedy with this time limit.
MTP ACT, 1971 in Brief
The Shantilal Shah Committee in 1964 recommended a relaxation of abortion laws in 1966 to reduce maternal morbidity and mortality associated with illegal termination. On the basis of these recommendations, the Medical Termination Bill was passed by the Parliament in 1971.
The enactment of the Medical Termination of Pregnancy Act, 1971 heralded a new era in female healthcare by forming a new law that allowed women to exercise basic control over their bodies, as before this act voluntarily causing a miscarriage was a crime under IPC,1960 and also they were liable to be prosecuted under it. The act legalized abortion in 1971.
Under this Act, upto 20 weeks was specified legal time for abortion. However, various other restrictions were imposed. The termination of pregnancy until the first 12 weeks required the approval of one medical practitioner and after the first amendment, for abortion between 12-20 weeks of pregnancy, it required the approval of two medical practitioners.
As per the provisions of the Act, only the consent of the woman whose pregnancy is being terminated is required but in the case of a woman below the age of 18 years, or a mentally ill woman, the consent of a guardian is also required. As per the act guardian definition includes not only parents but also someone who has care of that woman.
The basic conditions under the Act under which a pregnancy may be terminated are-
Continuation of the pregnancy would involve a risk to the life of the pregnant woman or cause grave injury to her physical or psychological health.
When there is a risk to the child that if the child is born, the child would be seriously handicapped physically or mentally.
When pregnancy is caused by rape and pregnancy is due to failure of contraceptive in a married woman or her husband.
MTP Amendment Bill 2020 in brief
The Union Cabinet’s approval of the Amendments to the MTP Act 1971, in January 2020, sets the stage for a small step forward in enlarging reproductive rights of women. This is only the second time the Act has been amended in its 49 years of existence but it is a promising one. We can say it is a welcomed amendment.
The current amendment now places an unmarried woman and her partner at par with a married woman and her spouse as this amendment now allows unmarried women to seek safe abortion facilities on grounds of contraceptive failure.
Moreover, the amendment increases the upper gestational limit for abortion from 20 to 24 weeks for vulnerable sections of women including survivors of rape, victims of incest, etc. In conformity with the medical board, as it has been contended that with advances in medical technology, certain fetal abnormalities are mostly detected after 20 weeks of pregnancy.
The Amendment significantly reduces the required number to provide opinions (medical practitioners) from two to one for termination of 12 to 20 weeks of pregnancy. This will help in increasing the number of hospitals that can provide II trimester abortion as many facilities currently do not have two medical practitioners and therefore do not offer abortions up to 20 weeks.
The amendment has the potential to assist in a new era in women’s health.
Conclusion
The bill seeks to strengthen the provisions for protecting the dignity and privacy of women who seek the shelter of law when they meet with such a life-changing decision. But, the current amendment for a vast majority of women who need to terminate a pregnancy, the amendments will not make any big difference. It is unlikely to make any cut in maternal mortality and morbidity due to unsafe abortion.
Interestingly, the legislation on reproductive choice was supported by the Supreme Court a decade ago, in the case of Suchita Shrivastava vs Chandigarh Admin., in this case, where a woman was mentally challenged, had conceived as a result of rape in the State-run Institution, the court upheld her right to decide to reproduce and raise a child by stating that “There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choices can be exercised to procreate as well as abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected.”
Even after this judgement, the MTP Bill 2020 lacks in ensuring the personal liberty and freedom of women at full strength. The intention of the government seems to be right, but the implementation seems to fall short. Probably, some issues can be addressed when the Rules under the Act are framed.
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