Abortion or the medical termination of pregnancy as it is referred to in legal parlance, was illegal in India until 1971, as Section 312-316 of the Indian Penal code,1861 made it a criminal offence.
Abortion can be spontaneous or induced. Spontaneous abortion is when a pregnancy comes to an end on its own, commonly known as miscarriage; whereas an induced abortion is when a pregnancy is terminated by intervention using medical or surgical procedures.
The Medical Termination of Pregnancy Act 1971 is the sole legislation governing induced abortions in India. The act regulates three aspects of termination of pregnancy, namely; when pregnancies may be terminated, by whom can it be terminated and where can they be terminated.
Medical Termination of Pregnancy (Amendment) Bill, 2021 Provisions
The Bill seeks to amend the Medical Termination of Pregnancy (MTP) Act, 1971. This Act covers abortions in India. It had been amended in 1975 and 2002. Before the enactment of this legislation, abortion was prohibited under Section 312 of the Indian Penal Code.
According to this Medical Termination of Pregnancy Act, 1971, a pregnancy may be medically terminated by a registered medical practitioner :
- Where the length of the pregnancy does not exceed twelve weeks (for this, the opinion of one doctor was required).
- Where the length of the pregnancy has exceeded twelve weeks but does not exceed 20 weeks. In this case, for the abortion to take place, two doctors must be of the opinion that the continuation of the pregnancy would impair the mental and/or physical health of the mother, and/or that if the child were to be born, it would suffer from serious physical or mental abnormalities causing it to be handicapped.
- The law also required minor pregnant women to get written consent from the guardian for the abortion to be allowed.
Proposed Features of the New Bill
- The Bill permits abortion to be allowed up to 20 weeks in the opinion of just one medical practitioner.
- To terminate pregnancies between 20 and 24 weeks, the opinion of two doctors is required. This extension of the gestation period up to 24 weeks is given for special categories of women such as rape/incest victims, differently-abled women, and minors
- For abortions beyond 24 weeks, a state-level Medical Board will decide if it can be permitted, in case of substantial fetal abnormalities
- The Board will consist of a gynecologist, a pediatrician, a radiologist or sonographer, and any other number of members as notified by the state government.
- Only doctors with specialization in gynecology/obstetrics can perform abortions.
- According to the Bill, the “name and other particulars of a woman whose pregnancy has been terminated shall not be revealed”, except to a person authorized by law.
- In cases where abortions are desired to terminate pregnancies arising out of rape, where the gestation period exceeds 24 weeks, the only manner would be through a writ petition.
Need for Medical Termination of Pregnancy Amendment Bill
The Medical Termination of Pregnancy Act required amendments because it was outdated in many aspects and had failed to take cognizance of the latest developments in the field of medical science. Current medical technology allows abortions at advanced stages of pregnancy.
Also, the provision that minors requiring abortions should get written consent from parents/guardians was regressive in some respects. The new bill has removed this requirement.
The older enactments led to many quacks and unqualified persons running illegal abortion clinics endangering the lives of many women. It is expected that the new amendments will help tackle these issues and bring more abortions into the organized domain, wherein qualified medical practitioners can take decisions and perform safe abortions.
Medical Termination of Pregnancy (Amendment) Bill, 2021 Benefits
The intended benefits of passing the amendments are discussed below :
- Many fetal abnormalities are detected only after the twentieth week of pregnancy. The new provisions would cater to such cases.
- The amended law would allow rape victims, disabled and minor women to abort unwanted pregnancies safely and legally.
- The Bill also applies to unmarried women, thus removing a regressive clause of the 1971 Act which said that unmarried women could not ask for an abortion citing contraceptive failure as a reason.
- Allowing unmarried women the right to legally terminate an unwanted pregnancy with a provision to protect their identity will confer reproductive rights to women.
MTP Amendment Bill Concerns
A few concerns have also been raised with regard to the new amendments. Some of them are:
- Society in general still prefers the male child and there are a number of illegal clinics that provide sex determination facility which is banned. There is a concern that a more liberal law for abortion might add to the problem of female foeticide.
- Late termination of pregnancy may get in conflict with the viability of the fetus. Viability is the period from which the fetus can live outside the mother’s womb. Viability improves with upgrades in medical technology.
- There is a shortage of qualified doctors and despite the new law, the access for women to safe abortions may still be impaired.
- Another concern with the Bill is that the 20-week cap on abortions is arbitrary. Many fetal abnormalities are detected in the 18 – 22 weeks window when the fetus is said to be substantially developed.
- There is an ethical perspective to the issue of abortion as well. People opine that the state has to protect all life including the life of the unborn fetus.
The decision to not bring a child to life is a tough call for a mother. Pregnancy is not just physically consuming but involves a lot of emotions. However, if a woman makes the hard choice of terminating her pregnancy, she must not be left vulnerable to an unfavorable third-party opinion.
That the right to make reproductive choices is a component of the personal liberty of women has been well recognized by the Supreme Court of India.
The legislators must strive to make induced abortion less conditional and more dependent on the will of the pregnant woman.
The role of a medical practitioner must be limited to recording consent and adopting a safe procedure. It’s time to restore autonomy to a woman so that she can be an independent arbiter on matters relating to her bodily integrity.