Author: Saumya Sakshi, IV year of B.A., LL.B. from Amity Law School, Noida, Uttar Pradesh
INTRODUCTION
Reproductive rights are one such right that is very personal, and it is deeply associated with the fundamental and the human rights of the person concerned. This right is a mix of the civil, political, social and economic right, and stretches from right to life, too, right to health and also includes the right to privacy, information, equality, non-discrimination and free from any force or ill-treatment. Reproduction rights also include abortion right.
India is one of the first nations in the world to develop and regulate legal and policy guidelines assuring access to abortion and contraception. The Medical Termination of Pregnancy Act is such an act that provides provision for legal abortion. This act, permit abortion after taking the opinion of the authorized medical practitioner who is having experience in gynaecology or obstetrics.
MEDICAL TERMINATION OF PREGNANCY ACT 1971
The medical termination of pregnancy act was passed in August 1971 and before that abortion was illegal and punishable under section 312 of the Indian Penal Code, 1860. This section criminalizes abortion and also prescribe punishment for doing the same. The act is an exception to IPC, as it permits the termination of pregnancy by a registered medical practitioner. The act was a gift to women, which uphold their right to reproduction. The act provides termination of pregnancy being legally permitted under a broad range of conditions up to 20 weeks of gestation period.
Conditions under which the abortion was made allowed by the act as given below:
•Where there is a risk to the women’s life if the pregnancy will be continued or such continuation will cause grave risk to her mental or physical health.
•Where there is a substantial risk to the child if born alive or dead, if alive he/she will be seriously handicapped due to physical or mental infirmity.
•Where the pregnancy is a result of rape and continuation of such pregnancy is causing grave injury to the mental health of the women.
•In a case where the pregnancy is the result of the failure of contraceptives used by the married woman or her husband. In such a case, it is presumed that such pregnancy is causing injury to her mental health.
In all the above cases, the termination of pregnancy was allowed till 20 weeks of gestation period.
The whole Medical Termination of Pregnancy Act revolves around these three points-
1. Period till when the pregnancy will be terminated.
2. Pregnancy can be terminated by whom.
3. Where pregnancy can be terminated.
This law was a reformative act on its own but doesn’t provide much benefit to women as it provides only conditional rights. That is abortion was made possible only after the consent of the authorized medical practitioner. Due to this, many women continued to face hurdles to the full enjoyment of their reproductive rights, which also includes poor health services and denial of women’s decision-making authority. The time limit which is provided under this act is not adequate, which resulted in opening the back door which leads to unsafe abortions. Therefore, there was a need for a new bill because there were several petitions laid before the courts seeking to terminate a pregnancy after 20 weeks of gestation period reason being cited that such pregnancy is the result of sexual violence or abnormalities of the fetal and 20 weeks is very less to determine to keep or to terminate the pregnancy. In many cases, women got to know their pregnancy after 20 weeks. During the period of lockdown 243 cases were filed in High courts all over India out of which 112 cases were related to seeking permission for termination of pregnancy after 20 weeks of gestation period. This situation depicts the hurdles faced by women which can be prevented by introducing a new law.
MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) BILL, 2020
According to the World Health Organization report, between 2015-2019, there are on average 73.3 million both safe and unsafe abortion occurred worldwide. In which over half of the world’s global unsafe abortion were in Asia, mostly in the south and Central Asia. To prevent the evil of unsafe abortion and insuring women right over their reproductive choices, The Union Cabinet on 29th January 2020 approves the medical termination of pregnancy termination bill 2020. The bill will amend the medical termination of pregnancy act 1971.
The bill was introduced in Lok Sabha in March 2020 and passed on March 17, 2020. The act provides many reforms in the Medical Termination of Pregnancy Act 1971. The proposed bill aims to ensure dignity, privacy and somewhere justice to women who want to terminate their pregnancy.
HIGHLIGHTS OF THE NEW ACT
1. The act increases the maximum week limit for the termination of pregnancy. Earlier it was up to 20 weeks, but now pregnancy can be terminated till 24 weeks for certain categories of women. Categories include – rape survivors, victims of incest, minor girls and differently-abled women etc.
2. For termination of pregnancy up to 20 weeks only one opinion of one medical practitioner is required and in case of termination of pregnancy up to 20-24 weeks opinion of the two registered medical practitioners is required.
3. The week limit is now not applicable in the case of substantial fetal abnormality diagnosed by the Medical Board.
4. Name and other personal information of the women who terminate her pregnancy shall not be shared with anyone except to a person authorized in any law for the time being in force.
5. The bill also proposed to set up a state-level medical board to deal with the cases related to the termination of pregnancy after 24 weeks of gestation period in case of substantial fetal abnormalities.
LACUNA’S IN THE PROPOSED BILL
Although the new bill is the needed step in the right direction it still has many lacunae, it is unclear in many issues and impractical in many parts.
Like in case of termination of pregnancy after 24 weeks is permitted only after the permission given by the medical board set up in every state, the bill is silent about the period within which the board must make its decision. This issue is very serious as the termination of pregnancy after 24 weeks is itself very dangerous for the women’s health, if the decision is not taken in time it will further complicate the life of the woman.
The bill is unclear whether it would include transgenders, intersex and non-binary persons under the provision of the act or not. Transgender is now been given the status of additional gender in India, and they can also get pregnant after receiving hormonal therapy. The bill only considers women for termination of pregnancy, it is silent about the transgender, non-binary or intersex person issue. Instead of using women, the bill should include the term pregnant person.
The bill still didn’t provide an absolute right to terminate the pregnancy to the women who don’t want to continue their pregnancy. Women are not permitted to terminate the pregnancy of their own will; they still need the consent of the medical practitioner and in case of termination after 24 weeks permission of the medical board.
CONCLUSION
The bill is a progressive piece of legislation that not only aims to reduce the maternal mortality rate due to unsafe abortions but also ‘’expanding excess of women to safe and legal abortion services for therapeutic, eugenic, humanitarian and social grounds’’. This bill is not yet passed by the Upper house of the Parliament due to the Covid-19 pandemic. The new bill is deemed as “Progressive” and “liberal” by the government. Unsafe abortions are the major reason behind the high rate of mortality rate of pregnant women. The bill is a ray of hope for many women, who were seeking to abort after 20 weeks of their gestation period, as they were not allowed to do so.
The actual amendment which was needed by this bill was women autonomy concerning their reproductive choices. Under the bill, women still need the opinion of doctors and have to justify their termination of pregnancy under the clauses of the law. What is needed is the decision of the woman, to keep or not to keep her pregnancy as it is a matter of personal autonomy, and the law should only provide a safeguard against unsafe abortion and the rest of the decision should be left on the pregnant women only.
REFERENCES
[1] Preventing unsafe abortion, World Health Organisation, (Sept 25,2020), https://www.who.int/en/news-room/fact-sheets/detail/preventing-unsafe-abortion.
[2] The Medical Termination of Pregnancy (Amendment) Bill, 2020, PRS LEGISLATIVE RESEARCH, https://prsindia.org/billtrack/the-medical-termination-of-pregnancy-amendment-bill-2020#_edn1.
[3] Bindu ShajanPerappadan, Pregnancy termination bill gets Cabinet nod, (JAN 29, 2020), https://www.thehindu.com/news/national/cabinet-approves-raising-of-upper-limit-for-permitting-abortions-to-24-weeks/article30683013.ece.
[4] Jagriti Chandra, Despite MTP Act, women forced to seek legal nod for abortion, (SEPT 28, 2020), https://www.thehindu.com/news/national/despite-mtp-act-women-forced-to-seek-legal-nod-for-abortion/article32710296.ece/amp.