THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971
In 1960, around 15 countries liberalized their abortion laws which actuated deliberations on induced abortion in India. Consequently, a committee headed by Shantilal Shah was formed to give suggestions on legalizing abortion in India. The Medical Termination of Pregnancy Act, 1971 was thus enacted which allowed abortion up to 20 weeks of gestation where there is:
- risk to life of the pregnant woman or grave injury physical or mental
- physical, or mental abnormalities if the child were born.
The Act mandates opinion formed in good faith of two registered medical practitioners if pregnancy exceeds 12 weeks. Section 3 would not apply when it is immediately necessary to save life of the pregnant woman.Victims of rape and contraception failure are also protected under mental injury. The apex court upheld the validity of the Act in Nand Kishore Sharma v. UOI.[1]
Although the act was a remarkable achievement for women’s health when it was enacted, it does not legalize abortion from a women’s rights perspective rather aims at protecting medical providers under the Indian Penal Code (Section 312-316).
WHY RIGHT TO ABORTION?
The entire debate revolving around abortion is pro-life versus pro-choice. Under various statutes[2], an unborn is recognized as a legal person by fiction and acquires interest only after birth. Bombay HC echoes primacy of women’s rights declaring that according to international law, a person is vested with human rights only at birth; an unborn fetus is not an entity with human rights.[3]The Supreme Court has recognized woman’s freedom of choice whether to bear a child or abort her pregnancy as a facet of one’s privacy under Article 21 of the Constitution.[4]
Approximately 50% of abortions in India are illegal[5] and it accounts for 9%-20% of all maternal deaths.[6] This percentage is similar to the incidence in countries where abortion is illegal.[7]When women are denied abortions under safe conditions, they go for clandestine or unsafe abortion, which is one of the top causes of maternal mortality, particularly in developing countries. Reduced access to family planning services, poor knowledge about abortion laws, weak health systems, and stigmatization of abortion and sexuality are few factors which contribute to high rate of mortality due to induced abortion.[8]Addressing these problems along with liberalized abortion laws is imperative in reducing mortality.
A study by Royal Colleges of Obstetricians and Gynaecologists in the UK shows that women whose unintended pregnancy was carried to term were at higher risk of subsequent mental health problems than those who had an abortion following an unintended pregnancy.[9]Although India’s abortion laws are progressive, poor quality of care, lack of effectual legislation, failure in implementation and misguidedness impede access to safe abortion.[10]
DRAWBACKS OF THE MTP ACT, 1971
The object of the MTP Act is to eliminate illegal abortions and confer on women the sacrosanct right to have her bodily integrity.[11]Paradoxically, it is solely accredited to the doctor whether a woman may undergo abortion or not. Someone else taking a decision for a woman contravenes the very essence of women’s right. The provider cannot ask for anyone’s consent but the pregnant woman’s. In cases of minor and lunatic, written consent of the guardian is necessary thereby giving guardian complete autonomy.
The Act as it stands today puts a ceiling at 20 weeks of gestation. Research shows that ban on abortion after 20 weeks disproportionately affects women with limited financial resources[12] and carrying an unwanted pregnancy to term is more harmful than abortion.[13]In certain cases, health complications come to light only after second trimester or there are procedural barriers before a woman can seek abortion. In Ms. Z v State of Bihar[14], the rape victim missed the upper limit due to laxity and red-tape of government and was eventually denied termination.
Misconception and confusion about law contributes to delay in abortions such as when providers ask for spousal consent or judicial authorization even before 20 weeks contrary to what is mentioned in the Act. Case laws show that delay in pregnancy may be augmented when authorities fail to properly investigate; fail to offer pregnancy testing kits to rape victims; question petitioners’ rape allegations;[15] or confusion about the PCPNDT Act and POCSO Act.The World Health Organization has stated that induced abortion later in pregnancy is safe if performed with medical standards.[16]Some states add non-essential requirements for abortion services. For Example, Maharashtra requires a blood bank within 5 kms of the abortion facility which is impractical and controls rather than facilitate abortion.[17]
COMPARING ABORTION LAWS WORLDWIDE
Although India was one of the first countries to have legislation allowing abortion, Indian women are denied rights that are otherwise protected worldwide. Countries like Vietnam, Switzerlandand Chinaallow abortion without gestational limit. The Canadian Supreme Court has allowed abortion as women’s right throughout pregnancy stating that forcing a woman, by threat of criminal sanction, to carry a fetus to term is a breach of women’s right to security.[18]
In US, the states of Alaska, Colorado, DC, New Hampshire, New Jersey, Oregon and Vermont, there are no restrictions on the point at which a woman can obtain abortion.[19]In The Netherlands and Norway, women have the final say in decision to terminate the pregnancy and no interference of third parties is allowed.[20]Austria, Sweden and Korea have higher gestational limits. Most European countries’ legislation use specific language to uphold women’s right to autonomous decision-making and aim at protecting both the woman and the provider unlike the MTP Act.
A WELCOMING MOVE BUT A LONG WAY TO GO
In March 2020, the Union Cabinet passed the MTP (Amendment) Bill, 2020 with a view to expand women’s rights and improve the principal Act. The bill increases gestational limit to 24 weeks for “certain category of women.”The upper gestational limit would not apply on diagnosis of ‘substantial’ fetal abnormalities. Section 3(2) Explanation II has been broadened to encompass unmarried women in contrast to only married women.A confidentiality clause has been inserted which entails punishment for violation. The bill mandates set up of a medical board thereby facilitating third party intervention.
It retrogressed from what was mentioned in the draft Amendment Bill, 2014 which proposed termination of pregnancy up to 12 weeks on woman’s request. The decision to abort still rests with the provider and termination is impermissible beyond 24 weeks. Abortion on demand within gestational limit is proscribed and woman’s right to choice appears secondary.
CONCLUSION
While states may have a legitimate interest in protecting prenatal life, such interests cannot be prioritized over the legal rights granted to women.The fetal interest debate though diluted still supersedes women’s rights. Abortion is not a choice rather continues to be a conditional right in India. The sanctity attached with motherhood and recognizing women as child-bearers is evident in the law. Reproductive health has not received the attention it deserves from the state. Reform is needed by policymakers and legislators to spread awareness, safe abortion clinics and guidelines for providers for opinions in abortion cases and to ensure that right to abortion is not made a mockery.
[1]Nand Kishore Sharma v. Union of India, AIR 200 Raj 166.
[2]Transfer of Property Act, 1882, § 13.
[3]High Court on its Own Motion v. State of Maharashtra, 2016 SCC Online Bom 8426.
[4]K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1; Suchita Srivastava v.Chandigarh Administration, (2009) 9 SCC 1.
[5]Center for Reproductive Rights, Ensuring Reproductive Rights, (Apr. 5, 2020, 6:30PM), https://reproductiverights.org/sites/default/files/documents/Post-20-Week-Access-to-Abortion-India-0218.pdf.
[6]Mary Philip Sebastian, M.E. Khan & Daliya Sebastian, Unintended Pregnancy and Abortion in India: Country Profile Report, STEP UP (Apr. 8, 2020, 12:40AM), https://www.popcouncil.org/uploads/pdfs/2014STEPUP_IndiaCountryProfile.pdf.
[7] World Health Organization, Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2008, (Apr. 5, 2020, 4:40PM), https://apps.who.int/iris/bitstream/handle/10665/44529/9789241501118_eng.pdf?sequence=1&isAllowed=y.
[8]Friday Okonofua, Contribution of Anti-Abortion Laws to Maternal Mortality in Developing Countries, 3 Expert Rev. Obstet. Gynecol., 147,149 (2008).
[9]Susan Cohen, Abortion and Mental Health, Guttmacher Institute (Apr. 8, 2020, 10:10PM), https://www.guttmacher.org/gpr/2006/08/abortion-and-mental-health-myths-and-realities.
[10]ShreyaShruti, Abortion Law, Policy and Services in India: A Critical Review, 40 UGC Care Journal, 919, 929 (2020).
[11]SarmishthaChakrabortty v. Union of India, (2018) 13 SCC 339.
[12] Diana Greene Foster & Katrina Kimport,Who Seeks Abortions at or After 20 Weeks?,Guttmacher Institute (Apr. 6, 2020, 11:25AM), https://www.guttmacher.org/journals/psrh/2013/11/who-seeks-abortions-or-after-20-weeks.
[13]Bixby Center for Global Reproductive Health, Abortion Restrictions Put Women’s Health, Safety and Wellbeing at Risk, UCSF (Apr. 6, 2020, 3:50PM), https://bixbycenter.ucsf.edu/sites/bixbycenter.ucsf.edu/files/Abortion%20restrictions%20risk%20women%27s%20health.pdf.
[14]Ms. Z v. State of Bihar, (2018) 11 SCC 572.
[15]JamanaSuthar v. State of Rajasthan, 2019 SCC Online Raj 3468; Indu Devi v. State of Bihar, (2017) 14 SCC 525.
[16]World Health Organization, Safe Pregnancy: Technical and Policy Guidance for Health Systems, (Apr. 9, 2020, 12:30AM), https://apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf?sequence=1.
[17]SiddhivinayakHirve,Abortion Policy in India: Lacunae and Future Challenges, (Apr. 7, 2020, 2:30AM), http://www.cehat.org/go/uploads/AapIndia/hirve.pdf.
[18]R. v. Morgentaler, (1988) 1 SCR 30 (Can.).
[19]Kaiser Family Foundation, States with Gestational Limits for Abortion, (Apr. 9, 2020, 01:10AM), https://www.kff.org/womens-health-policy/state-indicator/gestational-limit-.
[20]Center for Reproductive Rights, Ensuring Reproductive Rights, (Apr. 5, 2020, 6:30PM), https://reproductiverights.org/sites/default/files/documents/Post-20-Week-Access-to-Abortion-India-0218.pdf.
By-
Parnika Mishra
(RMLNLU)
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