On 16th March 2021 the Medical Termination of Pregnancy Act, 2020 was passed in the Rajya Sabha after over a year of having been passed in the Lok Sabha. The Act introduced certain progressive amendments to the Medical Termination of Pregnancy Act, 1971. Under the Indian Penal Code, 1860, still the official criminal code of India, voluntary termination of a pregnancy is a criminal offence. The MTP Act, 1971 was introduced as an exception to the offence, expanding the right to safe abortion to women.
The Medical Termination of Pregnancy, Act 1971 delineated provisions under which women could seek an abortion. However, the outdated and regressive law forced women, who did not have access to safe abortion methods, into seeking unsafe and possibly illegal options to terminate a pregnancy.
In the following analysis, we shall break down the provisions amended and the subsequent impact it seeks to create, the ambiguities and criticisms on certain sections of the bill, and a comparative framework in which relative provisions from laws around the world shall be discussed.
The Medical Termination of Pregnancy Act, 1971 allowed for the termination of pregnancy through surgeries performed by registered medical practitioners with specified specialisation on need-based grounds. According to the gestational age of a foetus, the act provides that to terminate a pregnancy of up to 12 weeks, the opinion of only one medical practitioner is required. The grounds of termination shall be limited to if the continuance of such pregnancy would:
pose risk to the life of the pregnant woman or grave injury to her physical and mental health
involve a substantial risk of physical and mental abnormalities to the child so born.
Under the same circumstances, in situations where the length of the pregnancy exceeds 12 weeks but not 20 weeks, the opinion of two doctors is required to consent to the termination process.
The recent amendment increased the duration of termination of pregnancy from 20 weeks to 24 weeks by altering the previous limit. Hence, with the enforcement of the new Act, any pregnancy up to 20 weeks can be terminated with the advice of just one doctor. Further, for the termination of any pregnancy up to 24 weeks has to be advised by two doctors. For cases seeking termination beyond 24 weeks, a special state Medical Board has to be consulted only if there is a risk of substantial foetal abnormality.
Further, the formation and constitution of a Medical Board shall be carried out on a state level to decides on cases where pregnancy shall have to be terminated post 24 weeks due to substantial foetal abnormality. Each Board shall mandatorily consist of a gynaecologist, paediatrician, radiologist and other members who shall be notified by the state government.
The Amendment Act also discusses the provision to apply for the termination in case of failure of a contraceptive device or method. Pregnancy can be terminated up to 20 weeks in case a method of contraception fails. This provision is both applicable to married and unmarried women.
The law has placed an unmarried woman and her partner at par with a married couple when it comes to seeking abortion in cases of contraceptive failure. This recognition of a woman’s sexual agency outside the ambit of marriage has been hailed as progressive.
To guarantee confidentiality and maintain the privacy of the woman involved, a registered medical practitioner is only allowed to reveal the details of the case to a person authorised by law. Any violation of the said provision is punishable by law.
The Act, even though it forwards corrections in the previous law, is still regressive in spirit. The primary reason being, it still disrespects women’s autonomy of taking decisions regarding their own bodies. Even with the newly passed amendment, termination of pregnancy is still provided in a needs-based approach than a rights-based approach. Hence, instead of awarding full agency to women to decide if she wants to continue the pregnancy or abort it, she will have to justify the termination on pre-conceived limited grounds and the decision shall be left at the mercy of the doctor.
The act also points out several ambiguities in context to the provisions delineated in them, which make it either unclear whether the act promotes inclusivity or still has some scope for criticism and correction.
Firstly, The Statement of Objection and Reasons of the Bill mentions the need to promote access to legal and safe abortion services to bring about a reduction in maternal mortality and morbidity rate which is often caused by unsafe, illegal abortions and their associated complications. However, if we go by the All-India Rural Health Statistics for the year 2018-2019, it can be found that in health clinics across India while there is a need for over 4,002 medical professionals, gynaecologists and obstetricians, only 1,351 are present, presenting a massive shortfall of over 75%. This shortage of qualified medical professionals will continue to restrict access to safe termination procedures.
The National Health and Family Survey data propounds that registered medical professionals only perform 53% of the total abortions and the rest are conducted by either nurse, midwives, dai, family members or self.
Safe abortions rights should go hand in hand with technological advancements in the field of medical research. When the MTP Act, 1971 was first introduced, the standard technology used to terminate pregnancies was a D&C (Dilation and Curettage) surgical method that should only be performed by trained medical professionals.
That technique has now become outdated with the advent of MVAs (Manual Vacuum Aspirations) and EVAs (Electric Vacuum Aspirations), preferable for first trimester terminations. MVAs and EVAs are much simpler and less invasive procedurally and require only basic training that can be given to any Registered Medical Practitioner (RMP) and does not necessitate the requirement for a specialisation. Besides, MMA (Medical Methods of Abortion) which require a prescription of two medicines to be taken orally is much easier and cost-effective. This legislation provides for RMPs to administer this process but in areas with a deficiency in doctors, nurses, midwives and even AYUSH practitioners can be trained in it.
Secondly, in cases where women will seek to terminate pregnancies caused due to rape and incest, that have stretched beyond the 24-week limit, no recourse shall be made available to the women in the ambit of the said Act. The only way around shall be to file a Writ Petition to get permission, hence no amendments have been advanced in this regard.
Also, the Act leaves scope for further insertion of categories of women who can be allowed to terminate pregnancies between the 20–24-week limit. The task of notifying these categories has been delegated to the central government.
However, to ensure fair, equitable representation and to keep conservative, patriarchal biases from rendering the provision of the act inaccessible to some intersections, the specification should come from the Parliament instead of the government. There must also be adequate representation and reparations given to the transgender community within the Act.
Thirdly, the Act has not specified the time frame within which the constituted Medical Board has to make its decision. Beyond the gestational period of 24 weeks, any pregnancy can only be aborted in case of substantial foetal abnormalities. And since termination is a time-sensitive matter, deferral in medical judgements can further complications for the woman.
While the amendments advanced in the new Act reflect a rather liberal view adopted by the government in protecting women’s rights, it is important to understand that the amendments are just an expansion of the previous exception carved within the law.
The MTP Act, 1971 did not decriminalise abortion, rather acted as an exception to the same. The new amendments turn tone-deaf to the basic argument against the bill, that it fails to actualise the autonomy and reproductive rights of a woman. Women still do not have sovereign control over their body, and hence cannot seek a safe, accessible abortion within this act unless it fulfils the prerequisite conditions.
Globally, the abortion laws remain regressive in their approach. Legislations around the world deny a woman’s right to abort pregnancy as absolute and balances it against the state’s interest to protect the life of the foetus. It should be clear that as long as abortion laws do not look to advance freedom and reproductive rights as of vital importance, no legislation can fully uphold the dignity and autonomy of women because women are not central to the legislation.
There are about 24 countries globally, including Egypt, Nicaragua, Iraq etc., that have completely prohibited abortions, regardless of the threat, it carries to a women’s life and the child’s health.
Around 99 countries overlappingly permit abortion when the woman’s life is at risk (including Brazil, Mexico, Indonesia etc.), to preserve health (including Pakistan, Poland, Peru etc.) and also on broad social, economic grounds (including India, Japan, Finland etc).
Finally, 72 countries globally, including Canada, Russia, Argentina, Australia etc. allow abortion on request with various gestational limits and other perquisite factors.
Taking a myopic view of certain countries, in the United States of America for example, different states have different legislation governing abortion. In 1973, the USA legalised abortion across the country with states having varied prerequisites.
China had liberalised its abortion laws to control the population surge. It practised the One-Child policy (1979-2015) under which abortion services were made widely available. Severe coercive measures, like compulsory sterilizations and fines, were undertaken to deter unauthorized births.
Ireland which previously had one of the most restrictive abortion laws in Europe were overturned in 2018 by a country-wide referendum.
The societal pressure on women to bear and not bear children have continuously been challenged by the feminist narrative. Sex is still a taboo and access to resources that enable women to plan families and prevent unintended pregnancies have not trickled down to the most marginalised yet. The important question is, how does society force upon a woman the burden to carry an unintended pregnancy and look down on women who choose to terminate pregnancies?
The stigma around abortions stems from the patriarchal idea of “womanhood”, that an ideal woman is a birth giver, nurturer and sexually pure. The idea that women may engage in non-procreative sex and would refuse to bear the child conceived out of intended pregnancies are seen as violative of an “ideal” woman’s image. Abortions are also stigmatised because they are used as a powerful tool to further the oppression of women. The entire pro-life vs. pro-choice argument centre around the very idea that the life of a foetus matters much more than that of a woman and warrants state protection.
In India, true reproductive justice, however, shall only be achieved when the Sections under the IPC, which criminalises abortions irrespective of the women’s consent, are decriminalised. i.e., when abortion is an unconditional right rather than an exception.
While the 2020 amendments may be one good step, we still have a long way to go.
Tanishq Gupta is a law student of The Rajiv Gandhi National University of Law, Patiala, Punjab.
The Medical Termination of Pregnancy Act, 1971
The Medical Termination of Pregnancy Act, 2020