Following its passage by both Houses of the Parliament, the Medical Termination of Pregnancy (Amendment) Bill, 2020 (‘Bill’) received the assent of the President on 25th March 2021 and was officially notified in the Gazette of India as the Medical Termination of Pregnancy (Amendment) Act, 2021 (‘Amendment Act’). The Amendment Act inserts some monumental changes in the Medical Termination of Pregnancy Act, 1971 (‘Act’) and while some amendments have received unanimous praise, many others have been the subject of severe criticism and opposition.
Although the Statement of Objects and Reasons of the Bill claims that the Bill “will enlarge the ambit and access of women to safe and legal abortion without compromising on safety and quality of care”, several of its provisions do not align with this overarching objective. Resultantly, there still remains a lack of favourable laws for persons seeking an abortion. Given that one in three pregnancies in India end in an abortion, the enactment of liberal abortion laws is a pressing issue, which unfortunately remains unaddressed by the Amendment Act.
The Progressive reforms
At the outset, the Amendment Act brings about three key improvements.
First, it increases the maximum gestational limit for pregnancies that may be aborted on the advice of one registered medical practitioner from 12 weeks to 20 weeks. For pregnancies that may be aborted on the advice of two registered medical practitioners, the limit has been increased from 20 weeks to 24 weeks. These changes are reflective of the advancements in medical technology, which now allow safe abortions beyond the first trimester of pregnancy (i.e. 12 weeks).
Second, in cases of abortion of pregnancies resulting from the failure of birth control or contraceptive methods, the Amendment Act replaces the words “by any married woman or her husband” in the Act, with the words “any woman or her partner”, thereby providing much-needed legal recognition to abortions outside of marriage.
Third, the Amendment Act introduces a new privacy clause whereby the registered medical practitioners are prohibited from revealing the name and other particulars of the woman whose pregnancy has been terminated, except to authorised persons under any law. It also provides for strict penalty for violation of this privacy clause.
The not-so progressive overlooks
The foremost issue with the amendments is that it fails to recognise the right to abortion at will of the pregnant individual. Under the Act, abortion is a conditional right that is only available based on the opinion of the medical practitioner. In other words, even if a pregnant woman wants to have an abortion, her consent is irrelevant if it is not accompanied by the consent of the medical practitioner. By vesting the power of primary consent with the doctor and not the woman, the Act retains a regressive legal position vis-à-vis reproductive autonomy for women. Today, 67 countries guarantee the right to abortion (for up to 12 weeks of pregnancy) on the request of the woman without requiring any third-party authorisation.
The Amendment Act also fails to address the demand for expansion of provider base for abortions. Currently, in India, abortions can be legally performed only by Obstetrics and Gynaecology (OB-GYN) specialists. This is because when the Act was first introduced 50 years ago, abortions were done via Dilation and Curettage (D&C), a complex surgical method that has now been replaced by Manual Vacuum Aspirations (MVAs) and Electric Vacuum Aspirations (EVAs), which are simpler, less invasive and require basic training that could be given to any registered medical practitioner.
Moreover, a popular method for early abortions is Medical Method of Abortion (MMA), which involves the prescription of two medicines that are taken orally. According to the Handbook on Medical Methods of Abortion published by the Ministry of Health & Family Welfare (MOH&FW), these methods have an effectiveness rate of 95-99% for termination of early pregnancy. However, currently, these methods can be legally given only by registered medical practitioners, even though mid-level and non-allopathic healthcare providers such as staff nurses, AYUSH practitioners and auxiliary nurses/midwives could be trained to do the same.
The World Health Organisation has recognised that such task-shifting has high rates of success in addressing health system shortages and is particularly useful in rural and inaccessible areas where OB-GYN specialists are scarce. Although the expansion of the provider base for abortions was proposed earlier by the MOH&FW in the Draft Medical Termination of Pregnancy (Amendment) Bill, 2014, it has not been replicated in the Amendment Act.
With respect to expanding the availability of abortion for persons other than women, the Amendment Act is glaringly deficient. Throughout the Act, the term ‘pregnant woman’ is used, implying that only women can seek abortions. This overlooks already overlooked groups like transgenders, inter-sex & gender-diverse individuals who might require an abortion. The Amendment Act makes no attempt to alter the terminology from ‘pregnant woman’ to ‘pregnant person’ and hence, fails to ensure equal access to abortions to all individuals, irrespective of their gender identity.
For abortion of a pregnancy beyond the 24-week limit, the Amendment Act constitutes a Medical Board, which is tasked with deciding whether there is sufficient ground for permitting such an abortion. However, there are two problems with this provision. First, the Amendment Act does not provide any time frame within which the Medical Board must render its decision. This is becomes extremely concerning because abortions are highly time-sensitive and the lack of statutory time limits can result in complications for the pregnant woman. Second, abortions beyond 24 weeks are only allowed for pregnancies involving “substantial foetal abnormalities” and are not permitted for pregnancies resulting from rape which have exceeded the 24-week limit. In such cases, the pregnant woman is forced to pursue judicial intervention to obtain permission for abortion, which is often a lengthy and cumbersome process. By failing to include rape victims within the ambit of this provision, the Amendment Act aggravates the plight of rape victims seeking abortions beyond 24 weeks.
The pending case before the Supreme Court
Recently, in Swati Agarwal v. Union of India [WP (C) No. 825/2019], a PIL was filed in the Supreme Court, challenging the validity of certain provisions of the Act. The petitioners argued that these provisions violated women’s right to health, reproductive choice and privacy under Article 21 of the Constitution.
The PIL stated that “the provisions imposed severe restrictions on the exercise of the reproductive choice of the woman by providing for a precondition of an opinion by the medical practitioner about there being a risk to the life of the lady or of grave physical or mental injury or risk of serious foetal abnormalities if the pregnancy is continued,” and that such restrictions “puts an undue burden on the exercise of free reproductive choice and renders it meaningless”.
While the Supreme Court has agreed to examine the constitutional validity of the impugned provisions and has issued a notice to the Centre in this regard, it remains to be seen whether the Supreme Court will also analyse the changes introduced through the Amendment Act. It will also be interesting to see whether or not the Supreme Court will use this litigation as an opportunity to adopt a liberal judicial stance on the right to reproductive autonomy.
Conditional provision, not an absolute right
In landmark cases such as Suchita Srivastava v. Chandigarh Admin [(2009) 14 SCR 989] and Devika Biswas v. Union of India [(2016) 10 SCC 726], the Supreme Court has held that a woman’s reproductive autonomy is a part of her fundamental right to privacy, and that the decision to have or not have a child should be hers alone, devoid of any state intervention. Evidently, the Amendment Act does not meet this judicial standard.
Although it brings about some progressive reforms in the law of abortion, it does little to change the strict paternalistic doctor-centric framework of the Act whereby the decision of abortion vests with the doctor and not the pregnant person. Consequently, abortion remains a conditional provision and not an absolute right. The Bill fails to give women the reproductive autonomy they deserve and continues to provide abortion using a needs-based approach rather than a rights-based approach. In addition to this, the Bill remains deficient, unclear, restrictive and impractical in many respects.
Notably, the last government sanctioned research on abortion was in 1966, when an eleven-member Committee (headed by Shantilal H. Shah) was appointed by the Government of India to examine the medical, social, legal and moral aspects of legalisation of abortion. More than five decades later, there has been no official government study on the issues regarding abortion laws in India. Even the Bill was passed by both Houses of the Parliament without referring it to a Parliamentary Committee for further deliberation and detailed scrutiny. It is therefore not surprising that the Amendment Act is replete with lacunae that have the effect of encumbering reproductive autonomy in India.
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