Medical Termination of Pregnancy (Amendment) Act, 2021

In News

Recently, the Delhi High Court has allowed the medical termination of pregnancy of a woman who had completed 22 weeks of gestation as the foetus was suffering from multiple abnormalities.

Background

• As per the Indian Penal Code, 1860 voluntarily terminating a pregnancy was considered a criminal offence. 
• The Medical Termination of Pregnancy (MTP) Act 1971 in India stipulates a ceiling of 20 weeks for termination of pregnancy on certain grounds, beyond which abortion of a foetus is statutorily impermissible.
• The Medical Termination of Pregnancy (Amendment) Act, 2021 amended the Medical Termination of Pregnancy Act, 1971 (MTP Act) and follows the earlier MTP Bills of 2014, 2017 and 2018, all of which previously lapsed in Parliament.

Issues with the current MTP Act 1971

• Lack of autonomy to women bearing child: At all stages of the pregnancy, the healthcare providers, rather than the women seeking an abortion, have the final say on whether the abortion can be carried out.
• Biased against unmarried women: The applicability of this provision to unmarried women are contested and unclear.
  • The ‘grave injury’ clause includes pregnancy occurring due to failure of any birth control device or method used by any “married woman or her husband”.
• Foetal abnormalities: Usually, the foetal anomaly scan is done during the 20th-21st week of pregnancy & some women realise the need for abortion post 20 weeks.
  • 20 weeks is limited if there is a lethal anomaly in the foetus.
• Not considering economic choices: The law does not accommodate non-medical concerns over the economic costs of raising a child, effects on career decisions, or any other personal considerations.
• Recent reports have shown that more than 10 women die every day due to unsafe abortions in India, and backward abortion laws only contribute to women seeking illegal and unsafe options.

Key Provisions of the MTP (Amendment) Act 2021

• Extended length for termination of pregnancy: The Act increases the gestation period of women seeking abortion up from 20 weeks to 24 weeks. 
• Cases of special categories of women: It allows abortion to be done on the advice of one doctor up to 20 weeks, and two doctors in the case of certain special categories of women between 20 and 24 weeks.
  • The “special categories of women” include rape survivors, victims of incest, the differently-abled and minors.
  • In case of the gestational period beyond 24 weeks, pregnancy may be terminated only in cases of substantial foetal abnormalities diagnosed by the Medical Board or if there is a threat to the life of the mother.
  • Opinion of only one provider will be required up to 20 weeks of gestation and two providers for termination of pregnancy of 20-24 weeks of gestation.
• Failure of Contraceptive: It allows unmarried women also to terminate a pregnancy in case of failure of the contraceptive method or device.
  • The ground of failure of contraceptives can now be used for abortion up to 20 weeks.
• Setup of Medical Boards: All state and union territory governments will constitute a Medical Board.  
  • The Board will decide if pregnancy may be terminated after 24 weeks due to substantial foetal abnormalities.  
• Ensuring confidentiality/privacy of Pregnant Women: Name and other particulars of a woman whose pregnancy has been terminated shall not be disclosed other than to a person authorised in any law for the time being in force.
• Requirement of doctors: Opinion of only one doctor will be required up to 20 weeks of gestation and two doctors for termination of pregnancy of 20-24 weeks of gestation.

Significance

• Raising the upper limit: Often 20 weeks were spent in completing the legal procedures and formalities.
• Reproductive Rights of a Woman: It will provide greater reproductive rights and dignity to women as abortion is considered an important aspect of the reproductive health of women.
• Right to Privacy: Further, the rape victims and vulnerable victims will also be benefitted from Privacy Clause.
• Encourage Safe Abortion: Deaths and injuries from unsafe abortions are largely preventable provided services are performed legally by trained practitioners.
• Aligned to International Progressive Practices: In the UK abortion can be performed at any time.
  • In South Africa, abortions rules are already similar to India.
• Reduction in Legal Cases: Many cases which were filed in High Courts to seek permission for abortion beyond 20 weeks will go down.

Shortcomings/Criticisms

• Son-meta-Preferences: The preference for a male child keeps sex determination at an aggressive pace.
• Ethical Debates: Differing opinions came regarding abortions:
  • One opinion is that terminating a pregnancy is the choice of the pregnant woman and a part of her reproductive rights.
  • Another is that the state should protect life and hence should provide for the protection of the foetus.
• Increase in Gestational limit only in certain cases: It enhances the gestational limit for legal abortion from 20 to 24 weeks only for specific categories of women.
  • A woman who does not fall into these categories would not be able to seek an abortion beyond 20 weeks.
• No Time frame of Board’s decision: The Act does not provide a time frame within which the Board must make its decision. 
  • Also, the shortage of specialised doctors will further delay the case.
  • The Act provides in section 3(2C) for a single board for a State that is, it is impossible for one board to handle all cases. Even having multiple boards, human resources and finances are a challenge.
• Unclear if transgender persons will be covered: There may be cases where persons who identify as transgender (and not women) can become pregnant even after receiving hormone therapy to transition from female to male, and may require termination services.
  • The Act is silent over this.
• No Personal Choice: The boards are unnecessary and an invasion of privacy of the pregnant women which pushes the laborious process a woman had to undergo in order to get an abortion.
• Lack of Awareness of Rights: Many are still not aware of their reproductive rights.

Way Ahead

• Autonomy to women: Women should be given reproductive choice in abortions.
  • Even the Supreme Court has also recognised women’s right to make reproductive choices and their decision to abort as a dimension of their liberty (in Mrs X v. Union of India, 2017) and as falling within the realm of the fundamental right to privacy (in K.S. Puttaswamy v. Union of India, 2017).
• Strict vigilance over sex determinations: In India where sex-selective abortions are performed, the state needs to keep a watchful eye on anything that might allow the sex ratio to nosedive further.
• Progressive Legislation: It must be broadened to encompass Transgender.
• Specify the time frame for Medical Boards, and ensure trained medical staff including ASHA workers.
• Encouraging the role of men in family planning to ensure that women do not face the burden alone.

Conclusion

• Access to legal and safe abortion is an integral dimension of sexual and reproductive equality and must be a crucial element of conventional society.
• The proposed increase in gestational age will ensure dignity, autonomy, confidentiality and justice for women who need to terminate the pregnancy.

Source: TH