Self-determination and individual autonomy are intrinsic elements of reproductive rights. However, it is a contentious topic all over the world whether the mother has a right to abortion or the foetus has a right to life. Across the globe, nations set different conditions and time limits for permitting abortions in light of foetal wellbeing, woman autonomy and risk to the pregnant woman. However, the World Health Organization doesn’t provide any maximum time limit for the termination of pregnancy.
It is well-recognized that the right to life is the most fundamental of all the rights and Article 21 of the Indian constitution guarantees this right to every person. Additionally, Women exercise various specific rights and the right to abortion is one of them. It stems from the right to privacy, the right to live with dignity and the right to choice which are the essential facets of the right to life. The issue of termination of pregnancy revolves around unriddling the conundrum of foetus right to life and women reproductive right.
This article deals with the brief history of Indian abortion law, the recent 2021 MTP Amendment Act, the existing lacunae in the legislation and a path ahead.
A GLIMPSE OF THE
HISTORY OF INDIAN ABORTION LAW:
The Indian Penal Code, 1860 prohibits illegal abortion from sections 312 to 316 and willfully aborting a pregnancy is made a criminal offence. After the independence, adopting a progressive approach towards the reproductive right of a woman, the government set up the Shantilal Shah committee to analyze the need for abortion law in the country. The committee reviewed the legal, medical and socio-cultural aspects of abortion and recommended legalized abortion and a legislation on comprehensive abortion care. Consequently, the Medical Termination of Pregnancy Act, 1971 was enacted which allows only medical termination of pregnancies and prevents unsafe abortion in the country.
Under the 1971 Act, The pregnancy can be terminated on the opinion of one doctor if it is done within 12 weeks of conception and two doctors if it is done between 12 and 20 weeks. Abortion is permitted only when the continuance of the pregnancy would involve a risk to the life of the pregnant woman, the discovery of foetal abnormalities, immediate necessity to save the woman’s life and cause grave injury to the woman mental or physical health (including rape and failure of birth control measures).
Till this date, the law, government and judicial approach have been full of inconsistencies and incongruities. During May 1, 2019 and August 15, 2020, 243 women went to different High Court to seek permission for termination of unwanted pregnancy as per the data gathered by Pratigya Campaign. Every so often, the legal framework has failed to recognize the autonomy of women over their bodies. In 2017, the Supreme Court refused to allow a woman to terminate her 26 weeks old foetus having Down syndrome. In Komal Hiwale v. State of Maharashtra, the Supreme Court allowed for the abortion of a foetus which had been diagnosed with Down syndrome reversing the decision of the Bombay High Court. The Delhi High Court in 2017 permitted to abort a 22-week foetus despite warnings from the medical board that it might be hazardous for the pregnant woman. In May 2017, the Patna High Court and the Supreme Court rejected the plea of an HIV positive woman to abort her 22 weeks old foetus. Moreover, due to lack of clarity, the MTP act often clashes with the Pre-Conception & Pre-Natal Diagnostic Techniques Act, 1994, though both the laws are fundamentally very different.
A CRITICAL
ANALYSIS OF THE MTP (AMENDMENT) Act 2021:
The amendments
to the MTP act are the result of the continuous advocacy of health
professionals, women’s rights activists, and multiple petitions in the High
Court’s/the Supreme Court by different stakeholders. They argue that the
existing MTP act has failed to meet the demands of the developments that have
arisen in the fields of medicine and technology.
The Health & Family Welfare Minister Dr. Harsh Vardhan proposed the Medical Termination of Pregnancy (Amendment) Bill in Lok Sabha which was passed by the house on 17 March, 2020 and The bill was supposed to be discussed in the Rajya Sabha, but it got delayed due to the COVID-19 pandemic. Finally, the Bill was passed by both the houses with certain modifications and it was come into force on 24th September 2021. The Statement of Objects and Reasons of the Bill states that women’s access to legal and safe abortion should be ensured to reduce maternal mortality and morbidity caused by unsafe abortions.
The amendment permits abortion with the assent of one medical practitioner, within 20 weeks. The assent of two medical practitioners will be needed for termination of pregnancy within 20-24 weeks for certain classes of women which will be defined in the MTP Rules. Moreover, the recent Amendment replaces the word ‘by any married woman or her husband’ with the words ‘any woman or her partner.’ This certainly delineates the changing social norms and effectively destigmatise pregnancies outside marriage institutions. Significantly, the Amendment Act also includes unwanted pregnancies due to the failure of contraceptives as a ground for abortion.
Highlighting the importance of the amendment, the health minister Harsh Vardhan remarked that, “Medical Termination of Pregnancy (Amendment) Bill, is for expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian and social grounds”. The government also claimed that the amendment Bill was introduced after consulting with various NGOs, academician, legal professionals, academic institutions and professional bodies like Indian Medical Association etc.
While the
Amendment Act is a progressive step, it still appears unclear, faulty and
impractical on several grounds. It fails to represent all the sections of
society, increases layers of bureaucracy, endorses eugenic and ablest attitudes
and embraces doctor-centric approach. The Amendment Act modified various provisions,
however it failed to grant autonomy or agency to women over their own bodies in
terms of making their decision to terminate the pregnancy.
The Act seeks to establish state-level Medical Boards to decide the termination of pregnancy after 24 weeks on the ground of substantial foetal abnormalities. Additionally, it is prescribed that professionals like gynecologists, pediatricians, radiologists and sinologist will be the members of the medical board. In spite of removing the barriers for pregnant women and providing them with more facilities, the amendment has only added further layers of bureaucracy which will be responsible for deciding the fate of pregnant women. As per the recent Amendment Act, there is no prescribed time limit for the medical board to give its decision. Needless to emphasize, abortion is a time-sensitive matter and delay on the part of the medical board will create further complications for the pregnant woman. Also, there is no clarity related to the accessibility of the board, the financial support that might be needed to approach it and how can the presence of so many medical specialists be assured in areas where access to even basic healthcare facilities continues to be an issue? It would be pertinent to note that The All-India Rural Health Statistics (2018-19) reveals that there are 1,351 gynecologists and obstetricians in community health clinics in rural areas and the shortfall is 4,002 (approximately 75%). Besides, According to National Health and Family Survey (2015-16), only 53% of abortions are performed by a registered medical doctor in the country and the equalization is made with the involvement of a nurse, auxiliary nurse midwife, and family member. It clearly depicts that the country has a huge shortage of medical professionals and the amendment has further increased their involvement which would push pregnant women to opt for unsafe abortion practices.
Additionally, disability rights activists criticize the MTP amendment for several reasons. The act has a very eugenic rational approach. It is necessary to understand that there is a clear distinction between desirable and undesirable foetus, and abled and disabled bodies. The statute contains the provision for terminating an ‘abnormal’ foetus. The expression abnormalities itself has very ablest connotations. It connotes that those who do not fit into the norms of the society will be labeled as abnormal. The easiest way to deal with them is to completely eliminate them from society. It would be apt to highlight that Disabled right activists across the globe are fighting against such unfair legislations of the states. In the United Kingdom, 90 percent foetuses are being terminated those tested positive with Down syndrome. In recent years, many protests have been organized by the families and parents of children with Down syndrome against such practices.
As a matter of fact, to terminate any pregnancy is a right of pregnant women, but legally endorsing selective abortion practices is very objectionable and a violation of human rights. It is contended that it should be completely up to women whether they want to continue or terminate their pregnancy having disabled foetus. But, Endorsing selective abortion practices will definitely reduce the value of the lives of persons with disabilities and make society less empathetic towards them.
Moreover, women with disabilities, who desire to go
through abortion post-20 weeks, would have to face the same existing problems
and prejudices due to the involvement of medical practitioners. As a matter of
fact, they are usually not treated supportively and safely by medical
practitioners. In Indian social setting, it is very difficult to find even a
disabled-friendly medical personnel. Eventually, the medical board will
increase their vulnerability and abuse. The recent
amendment might push them to go through unwanted medical surveillance and
examination. It is very likely that they might be
forced to undergo screening or terminate their pregnancy due to the
misconception that they would carry their disability forward as in the form of
transference of genes and they are not believed capable enough to bear
children.
Besides, the amendment does not seem to remove numerous lacunae in the existing framework. Even after more than 40 years of the enforcement of the MTP Act, unsafe abortions contribute to 8% of maternal mortality and also continue to be the third largest cause of maternal mortality in India. The data of the National Family Health Survey reveals that only 47.8 percent of the women in the country use modern contraceptive methods and 53 percent do not use any method at all. A study involving 1007 women aged 15-24 years in Assam and Madhya Pradesh (November 2018) revealed that only 20 percent of young women knew about contraceptive methods and only 22 percent were aware that abortion is illegal in India. Not a single woman amidst the group was aware of the gestation period of 20 weeks. In a survey which gathered the data related to the attitudes towards abortion, it was found that 62 percent of women believed abortion to be a sin and 33 percent of them said they would disown friends who had an abortion. Additionally, according to Lancet Global Health, approximately 15.6 million abortions took place in India in 2015. Out of this number, 22% (about 3.4 million abortions) were done in health facilities; 73% (11.5 million) abortions) were medication abortions which took place outside of the health facilities and 5% (0.8 million abortions) were done outside of health facilities using methods other than medication abortion. As per this data, abortions accounted for 33% of total pregnancies, nearly half of which (pregnancies) were unintended. These statistics highlight the fragility of our health system, lack of awareness regarding the law, the lackadaisical approach of the governments, and lack of proper implementation of the Act. Prima-facie, the amendment does not address any of these issues.
It is also contended that the law ignores intersectionality. The Act and the recent amendment use the expression “pregnant women” who have the right to abortion subject to certain restrictions. However, with the passage of the Transgender Persons (Protections and Rights) Act, 2019, Transgender Persons are also recognized as an additional gender in India. Few medical studies have discovered that persons who identify as transgender (and not women) can conceive after receiving hormone therapy, and may require termination services. As the Act and the amendment use the expression ‘pregnant women’, it is unclear whether transgender persons will be covered under the Act or not.
WAY FORWARD:
There is a dire need to make the system more focused on the rights and needs of women. Detailed guidelines on the post-20 weeks termination, establishing adequate infrastructure, making the medical board inclusive, promoting awareness about reproductive rights, making gender-neutral law, destigmatizing abortion are some of the key issues that should be addressed to improve the law and its implementation. Besides, Extensive awareness programs related to the MTP Act should be launched across the country. Health professional should also be sensitized. Additionally, there is also a need to promote awareness regarding modern contraceptive methods. Moreover, the best way to improve the functioning of the medical board is by increasing its diversity. To make it more effective, it should be made accessible and include experts from the field of disability as well. It is very significant to train health professionals on a large scale so that the dearth of medical practitioners can be minimized. Impinging on the rights and autonomy of certain sections of society and imposing laws that have an exclusionary approach are no less than abjuration of human rights. The decision of the women about their own bodies should remain central in the laws formulated to serve and protect them. It is also necessary to ensure that they will become capable of asserting their agency, exercise their reproductive rights, and make inform choices.
The Author is a 5th year student at the Faculty of Law, Jamia Millia Islamia and Co- Author is a student of B.Ed. of the University of Delhi
Disclaimer:
The views, thoughts, and opinions expressed in the text belong solely to the
author and not to the Jurisedge Academy.
Readers may submit his/her blog for publication. Click Here or Scan the QR Code to submit your Manuscript.
Saurabh Kumar
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Author- Masoom Reza & Divya Pandey*
Self-determination and individual autonomy are intrinsic elements of reproductive rights. However, it is a contentious topic all over the world whether the mother has a right to abortion or the foetus has a right to life. Across the globe, nations set different conditions and time limits for permitting abortions in light of foetal wellbeing, woman autonomy and risk to the pregnant woman. However, the World Health Organization doesn’t provide any maximum time limit for the termination of pregnancy.
It is well-recognized that the right to life is the most fundamental of all the rights and Article 21 of the Indian constitution guarantees this right to every person. Additionally, Women exercise various specific rights and the right to abortion is one of them. It stems from the right to privacy, the right to live with dignity and the right to choice which are the essential facets of the right to life. The issue of termination of pregnancy revolves around unriddling the conundrum of foetus right to life and women reproductive right.
This article deals with the brief history of Indian abortion law, the recent 2021 MTP Amendment Act, the existing lacunae in the legislation and a path ahead.
A GLIMPSE OF THE HISTORY OF INDIAN ABORTION LAW:
The Indian Penal Code, 1860 prohibits illegal abortion from sections 312 to 316 and willfully aborting a pregnancy is made a criminal offence. After the independence, adopting a progressive approach towards the reproductive right of a woman, the government set up the Shantilal Shah committee to analyze the need for abortion law in the country. The committee reviewed the legal, medical and socio-cultural aspects of abortion and recommended legalized abortion and a legislation on comprehensive abortion care. Consequently, the Medical Termination of Pregnancy Act, 1971 was enacted which allows only medical termination of pregnancies and prevents unsafe abortion in the country.
Under the 1971 Act, The pregnancy can be terminated on the opinion of one doctor if it is done within 12 weeks of conception and two doctors if it is done between 12 and 20 weeks. Abortion is permitted only when the continuance of the pregnancy would involve a risk to the life of the pregnant woman, the discovery of foetal abnormalities, immediate necessity to save the woman’s life and cause grave injury to the woman mental or physical health (including rape and failure of birth control measures).
Till this date, the law, government and judicial approach have been full of inconsistencies and incongruities. During May 1, 2019 and August 15, 2020, 243 women went to different High Court to seek permission for termination of unwanted pregnancy as per the data gathered by Pratigya Campaign. Every so often, the legal framework has failed to recognize the autonomy of women over their bodies. In 2017, the Supreme Court refused to allow a woman to terminate her 26 weeks old foetus having Down syndrome. In Komal Hiwale v. State of Maharashtra, the Supreme Court allowed for the abortion of a foetus which had been diagnosed with Down syndrome reversing the decision of the Bombay High Court. The Delhi High Court in 2017 permitted to abort a 22-week foetus despite warnings from the medical board that it might be hazardous for the pregnant woman. In May 2017, the Patna High Court and the Supreme Court rejected the plea of an HIV positive woman to abort her 22 weeks old foetus. Moreover, due to lack of clarity, the MTP act often clashes with the Pre-Conception & Pre-Natal Diagnostic Techniques Act, 1994, though both the laws are fundamentally very different.
A CRITICAL ANALYSIS OF THE MTP (AMENDMENT) Act 2021:
The amendments to the MTP act are the result of the continuous advocacy of health professionals, women’s rights activists, and multiple petitions in the High Court’s/the Supreme Court by different stakeholders. They argue that the existing MTP act has failed to meet the demands of the developments that have arisen in the fields of medicine and technology.
The Health & Family Welfare Minister Dr. Harsh Vardhan proposed the Medical Termination of Pregnancy (Amendment) Bill in Lok Sabha which was passed by the house on 17 March, 2020 and The bill was supposed to be discussed in the Rajya Sabha, but it got delayed due to the COVID-19 pandemic. Finally, the Bill was passed by both the houses with certain modifications and it was come into force on 24th September 2021. The Statement of Objects and Reasons of the Bill states that women’s access to legal and safe abortion should be ensured to reduce maternal mortality and morbidity caused by unsafe abortions.
The amendment permits abortion with the assent of one medical practitioner, within 20 weeks. The assent of two medical practitioners will be needed for termination of pregnancy within 20-24 weeks for certain classes of women which will be defined in the MTP Rules. Moreover, the recent Amendment replaces the word ‘by any married woman or her husband’ with the words ‘any woman or her partner.’ This certainly delineates the changing social norms and effectively destigmatise pregnancies outside marriage institutions. Significantly, the Amendment Act also includes unwanted pregnancies due to the failure of contraceptives as a ground for abortion.
Highlighting the importance of the amendment, the health minister Harsh Vardhan remarked that, “Medical Termination of Pregnancy (Amendment) Bill, is for expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian and social grounds”. The government also claimed that the amendment Bill was introduced after consulting with various NGOs, academician, legal professionals, academic institutions and professional bodies like Indian Medical Association etc.
While the Amendment Act is a progressive step, it still appears unclear, faulty and impractical on several grounds. It fails to represent all the sections of society, increases layers of bureaucracy, endorses eugenic and ablest attitudes and embraces doctor-centric approach. The Amendment Act modified various provisions, however it failed to grant autonomy or agency to women over their own bodies in terms of making their decision to terminate the pregnancy.
The Act seeks to establish state-level Medical Boards to decide the termination of pregnancy after 24 weeks on the ground of substantial foetal abnormalities. Additionally, it is prescribed that professionals like gynecologists, pediatricians, radiologists and sinologist will be the members of the medical board. In spite of removing the barriers for pregnant women and providing them with more facilities, the amendment has only added further layers of bureaucracy which will be responsible for deciding the fate of pregnant women. As per the recent Amendment Act, there is no prescribed time limit for the medical board to give its decision. Needless to emphasize, abortion is a time-sensitive matter and delay on the part of the medical board will create further complications for the pregnant woman. Also, there is no clarity related to the accessibility of the board, the financial support that might be needed to approach it and how can the presence of so many medical specialists be assured in areas where access to even basic healthcare facilities continues to be an issue? It would be pertinent to note that The All-India Rural Health Statistics (2018-19) reveals that there are 1,351 gynecologists and obstetricians in community health clinics in rural areas and the shortfall is 4,002 (approximately 75%). Besides, According to National Health and Family Survey (2015-16), only 53% of abortions are performed by a registered medical doctor in the country and the equalization is made with the involvement of a nurse, auxiliary nurse midwife, and family member. It clearly depicts that the country has a huge shortage of medical professionals and the amendment has further increased their involvement which would push pregnant women to opt for unsafe abortion practices.
Additionally, disability rights activists criticize the MTP amendment for several reasons. The act has a very eugenic rational approach. It is necessary to understand that there is a clear distinction between desirable and undesirable foetus, and abled and disabled bodies. The statute contains the provision for terminating an ‘abnormal’ foetus. The expression abnormalities itself has very ablest connotations. It connotes that those who do not fit into the norms of the society will be labeled as abnormal. The easiest way to deal with them is to completely eliminate them from society. It would be apt to highlight that Disabled right activists across the globe are fighting against such unfair legislations of the states. In the United Kingdom, 90 percent foetuses are being terminated those tested positive with Down syndrome. In recent years, many protests have been organized by the families and parents of children with Down syndrome against such practices.
As a matter of fact, to terminate any pregnancy is a right of pregnant women, but legally endorsing selective abortion practices is very objectionable and a violation of human rights. It is contended that it should be completely up to women whether they want to continue or terminate their pregnancy having disabled foetus. But, Endorsing selective abortion practices will definitely reduce the value of the lives of persons with disabilities and make society less empathetic towards them.
Moreover, women with disabilities, who desire to go through abortion post-20 weeks, would have to face the same existing problems and prejudices due to the involvement of medical practitioners. As a matter of fact, they are usually not treated supportively and safely by medical practitioners. In Indian social setting, it is very difficult to find even a disabled-friendly medical personnel. Eventually, the medical board will increase their vulnerability and abuse. The recent amendment might push them to go through unwanted medical surveillance and examination. It is very likely that they might be forced to undergo screening or terminate their pregnancy due to the misconception that they would carry their disability forward as in the form of transference of genes and they are not believed capable enough to bear children.
Besides, the amendment does not seem to remove numerous lacunae in the existing framework. Even after more than 40 years of the enforcement of the MTP Act, unsafe abortions contribute to 8% of maternal mortality and also continue to be the third largest cause of maternal mortality in India. The data of the National Family Health Survey reveals that only 47.8 percent of the women in the country use modern contraceptive methods and 53 percent do not use any method at all. A study involving 1007 women aged 15-24 years in Assam and Madhya Pradesh (November 2018) revealed that only 20 percent of young women knew about contraceptive methods and only 22 percent were aware that abortion is illegal in India. Not a single woman amidst the group was aware of the gestation period of 20 weeks. In a survey which gathered the data related to the attitudes towards abortion, it was found that 62 percent of women believed abortion to be a sin and 33 percent of them said they would disown friends who had an abortion. Additionally, according to Lancet Global Health, approximately 15.6 million abortions took place in India in 2015. Out of this number, 22% (about 3.4 million abortions) were done in health facilities; 73% (11.5 million) abortions) were medication abortions which took place outside of the health facilities and 5% (0.8 million abortions) were done outside of health facilities using methods other than medication abortion. As per this data, abortions accounted for 33% of total pregnancies, nearly half of which (pregnancies) were unintended. These statistics highlight the fragility of our health system, lack of awareness regarding the law, the lackadaisical approach of the governments, and lack of proper implementation of the Act. Prima-facie, the amendment does not address any of these issues.
It is also contended that the law ignores intersectionality. The Act and the recent amendment use the expression “pregnant women” who have the right to abortion subject to certain restrictions. However, with the passage of the Transgender Persons (Protections and Rights) Act, 2019, Transgender Persons are also recognized as an additional gender in India. Few medical studies have discovered that persons who identify as transgender (and not women) can conceive after receiving hormone therapy, and may require termination services. As the Act and the amendment use the expression ‘pregnant women’, it is unclear whether transgender persons will be covered under the Act or not.
WAY FORWARD:
There is a dire need to make the system more focused on the rights and needs of women. Detailed guidelines on the post-20 weeks termination, establishing adequate infrastructure, making the medical board inclusive, promoting awareness about reproductive rights, making gender-neutral law, destigmatizing abortion are some of the key issues that should be addressed to improve the law and its implementation. Besides, Extensive awareness programs related to the MTP Act should be launched across the country. Health professional should also be sensitized. Additionally, there is also a need to promote awareness regarding modern contraceptive methods. Moreover, the best way to improve the functioning of the medical board is by increasing its diversity. To make it more effective, it should be made accessible and include experts from the field of disability as well. It is very significant to train health professionals on a large scale so that the dearth of medical practitioners can be minimized. Impinging on the rights and autonomy of certain sections of society and imposing laws that have an exclusionary approach are no less than abjuration of human rights. The decision of the women about their own bodies should remain central in the laws formulated to serve and protect them. It is also necessary to ensure that they will become capable of asserting their agency, exercise their reproductive rights, and make inform choices.
The Author is a 5th year student at the Faculty of Law, Jamia Millia Islamia and Co- Author is a student of B.Ed. of the University of Delhi
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
Readers may submit his/her blog for publication. Click Here or Scan the QR Code to submit your Manuscript.
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