Broadly speaking: Medical Termination of Abortion (Amendment) Bill 2020: An Analysis
Aug. 10, 2020 • Madri Chandak
Profile of the author: Shriya Ojha is a second-year student at the Faculty of Law, University of Delhi.
Introduction
Medical termination of pregnancy globally has been recognised as an essential aspect of reproductive rights and although not recognised exclusively, the Indian judiciary has read it implicitly under the Right to Life [1] and Right to Privacy [2]. Despite the long existence of The Medical Termination of Pregnancy Act 1971 [3] for regulating and promoting safe abortion practices, illegal and unsafe abortions have been a leading cause of maternal mortality in India. A 2015 study in the Indian Journal of Medical Ethics has observed that 10-13% of maternal deaths in India can be attributed to unsafe abortions. [4] The State, by means of policies and laws, has been in pursuance of a safer and more accessible abortion infrastructure but even then, women have been increasingly resorting to unsafe abortion practices outside regulated health facilities. A study by Lancet Global Health indicates that out of the 15.6 million abortions in India in 2015, 78% were outside health facilities. [5]
Before the 1971 act, abortion as a practice was considered illegal per se under Sections 312- 316 of the IPC in light of the conservative religious, social background of the community, Therefore, the MTP Act of 1971, which aimed to regulate and decriminalise abortion was considered way ahead of its time. 49 years post-formation, the Act is under scrutiny and an attempt to amend the act was sought through The Medical Termination of Pregnancy (Amendment) Bill, 2020. [6] It was introduced in Lok Sabha by the Minister of Health and Family Welfare, Dr Harsh Vardhan on March 2, 2020, and stands passed in the Lok Sabha.
Key Features of the Bill
- Termination of pregnancy- Under the original Act, a pregnancy may be terminated within 12 weeks, if a registered medical practitioner is of the opinion that: (i) continuation of the pregnancy may risk the life of the mother, or cause grave injury to her health, or (ii) there is a substantial risk that the child if born, would suffer physical or mental abnormalities. For termination of pregnancy between 12 to 20 weeks, two medical practitioners are required to give their opinion. [7] The Bill seeks to increase the lower gestation period to 20 weeks and the termination within 20 weeks will require the opinion of one medical practitioner and the upper gestation limit has been set to 24 weeks and will require opinions of two registered medical practitioners. However, the termination of pregnancy between 20-24 weeks will be allowed only in specific cases as may be prescribed by the Central Government. The Central Government will also lay down the norms for the registered medical practitioners, whose opinion is required.
- Setting up of a Medical Board - Every State Government is required to constitute a Medical Board, consisting of the following members: (i) a gynaecologist, (ii) a paediatrician, (iii) a radiologist or sonologist, and (iv) any other number of members, as may be notified by the state government. Upper gestation limit is not to apply in cases of substantial foetal abnormalities diagnosed by the Medical Board.
- Increased Inclusivity- The original act covered only married women in case of unwanted pregnancies due to contraceptive failures. The bill amends this provision to include “woman or her partner”
- Protection of privacy of a woman: The Bill seeks to protect the privacy of women restricting medical practitioners from revealing the name and other particulars of a woman whose pregnancy has been terminated, except to a person authorised by any law. Contravention will be punishable with imprisonment of up to one year or fine or both.
Problems of the Bill
- Right to Abortion is conditional, and not absolute - The requirement of multiple authorizations from practitioners and the medical board in certain cases withholds right of self-determination and bodily sovereignty of the woman. The woman should be the sole deciding authority in matters relating to her body. The intervention of State or any external factor dilutes these rights. Abortion has been considered murderous whilst recognising the rights of the foetus as in the case of Sarita. On September 11th 2019, Ministry of Health and Family Welfare issued a reply to the petition seeking an increase of gestation window stating, “Pregnant woman’s right to abort her pregnancy is not an absolute right, and the right to abortion must be balanced against the compelling State interest of protecting the mother’s health and the life of the foetus/unborn child.” On the contrary, international law enshrines human rights on living beings and not unborn beings. At the heart of this question lies the debate between Libertarian and Utilitarian schools of thought. While the former promotes that personal autonomy cannot be restricted by the State except to the extent that an exercise thereof limits the liberty of other individuals [9], the latter school is founded on the principle that any State action should be for "the greatest good of the greatest number", and therefore gives primacy to the interests of the State. [10] The essential question here is should the rights of the foetus prevail over the rights of women? The same was highlighted in the landmark judgement of Roe v. Wade [11] which protected a pregnant woman's liberty to choose to have an abortion without excessive government restrictions. The Indian legal system has recognised reproductive rights but is still far from recognising reproductive autonomy which is an essential aspect of personal liberty and right to privacy.
- Fear of incrimination in medics- MTP Act protects the rights of medics performing abortion. But the confusion arising out of conflation of various laws (such as PCPNDT Act, POCSO Act and even the Drugs and Cosmetics Act) that criminalise certain abortion practices, leads to a decline of abortion requests by several medics leaving the women with no choice but to approach the courts or resort to illegal and unsafe abortion techniques. The courts in such matters have had a case by case approach, and often resort to a conservative approach by declining abortion requests upholding the rights of the foetus against the right to life, self-determination, liberty etc. of women.
- Vacuums – The bill remains silent on the government’s strategy to increase accessibility and availability of abortion clinics, increasing registered medical practitioners, training mechanisms etc. which form essential aspects of developing a safe environment for women seeking adoption. Various aspects of execution such as powers of the Medical Board, norms for RMPs etc, are not covered in the bill and have been left to be dealt with by the government under rules and regulations.
Conclusion
The bill is a positive step in the protection of reproductive rights of women but cannot be called a landmark step as barriers in the process of abortion still exist. There exist countries with higher gestational period (Austria, Sweden etc.) or have no gestational period (Canada, China, Switzerland) etc. Should Indian women wait for another amendment to exercise full control over their bodies?
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FAQs
Q. What sort of procedures does an abortion entail?
Ans. In the early stages of pregnancy, a woman can opt for a medical abortion where you can simply consume pills orally. Tablets containing Mifepristone and Misoprostol need to be taken in two stages for expelling the pregnancy.
The other option is suction aspiration. It’s a surgical procedure that uses gentle suction to remove the pregnancy.
References
[1] Constitution of India, Article 21
[2] K Puttaswamy v. Union of India
[3] The Medical Termination of Pregnancy Act, 1971
[4] S. G . Kabra, Unsafe abortions and experimental excesses, https://ijme.in/articles/unsafe-abortions-and-experimental-excesses/?galley=html
[5] The Incidence of Abortion and unintended pregnancy in India, 2015, The Lancet Global Health, DOI:https://doi.org/10.1016/S2214-109X(17)30453-9
[7] MTP Act, 1971, Section 3 (2)
[8] Amendments We Should Be Asking For in the Medical Termination of Pregnancy Bill, https://thewire.in/women/medical-termination-of-pregnancy-bill-amendments
[9] 1 Thoreau conveyed the essence of the philosophy best when he said, "the government that governs best, governs least." Henry David Thoreau, On the Duty of Civil Disobedience, available at http://www.panarchy.org/thoreaudisobedience. 1848.html (last visited March 17, 2006)
[10] Andrew Heywood, Political Theory: An Introduction 358 (200)
[11] Roe v. Wade, 410 U.S. 113 (1973)