JUSTICE TO WOMEN: MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) BILL, 2020
Updated: Aug 28, 2020
By- Rohit Arya, 4th Year B.A. L.LB Student at Amity Law School, Delhi
For the very first time in 1971, India legalized abortion. Prior to that, abortion was criminalized under the Indian Penal Code, 1860 calling it ‘causing of intentional miscarriage.’ However, with the enactment of The Medical Termination of Pregnancy (MTP) Act, 1971, passed by Parliament in 1972, the medical termination no longer remained a criminalized act. The MTP Act, 1971 devised for abortion and legalized medical termination for up to 20 weeks of pregnancy and try to protect women's right to life through its provisions.
Where the length of the pregnancy has extended up to 12 weeks gestation period, on the counsel of one ‘Registered Medical Practitioner,’ pregnancy can be terminated.
Where the length pregnancy goes beyond 12 weeks but within 20 weeks of the gestation period, on the medical opinion of two such ‘Registered Medical Practitioner’ in good faith, pregnancy can be terminated only in the following grounds:-
That continuation of pregnancy risks the life of the pregnant lady or cause injury either to her corporeal or cerebral well-being, or
That there exists a peril to the child if born, can be firmly disabled due to corporeal, or cerebral abnormalities,
That the cause of gestation is rape (believed to have a grave injury on the psychological well-being),
That the cause of gestation is defective in any device or method used by any married woman, or her husband so as to restrict the number of offspring (such undesirable pregnancy supposed to have a grave injury on the psychological fitness).
Note: The pregnancy has to be terminated only by a Registered Medical Practitioner and if the pregnancy has been terminated by a non-Registered Medical Practitioner, the person is guilty of the offense punishable under the Code.
The MTP Act, 1971, allows the pregnant women to terminate her pregnancy beyond 20 weeks, if it is necessary to save her life, provided that the opinion of the medical practitioner is in good faith. The Court constitutes a Medical Board (an expert committee of medical professionals that produce a report which specifies whether pregnancy shall be terminated or not) in all the cases of terminating pregnancy beyond 20 weeks.
THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) BILL, 2020
Proposed Features of the (Amendment) Bill
Introduced the term, “Termination of pregnancy," where a pregnancy can be terminated by using medical, or surgical ways and means.
Replaced the term, “married woman or her husband” with “woman or her partner” where the cause of pregnancy is due to defectiveness in any device or technique used by any woman or her partner so as to restrict the number of offspring (such undesirable pregnancy supposed to have serious damage on the psychological healthiness).
The (Amended) Bill increases the upper gestation limit to 24 weeks.
The pregnancy up to 20 weeks can be terminated on the opinion of one Registered Medical Practitioner.
The pregnancy between 20 weeks to 24 weeks can be terminated on the opinion of two Registered Medical Practitioners.
The pregnancy up to 24 weeks can be terminated only for special categories of vulnerable women which include; rape victims, victims of incest, and other handicapped women or minors.
Note: However, the upper gestation limit will not apply in the cases of substantial fetal abnormalities, under section 3(2B).
It is indispensable for every state government to form a Medical Board, comprising of members, under section 3(2D):-
A gynecologist, a medical practitioner who specializes in women's reproductive health.
A pediatrician, a medical practitioner who specializes in children and their diseases.
A radiologist or sonologist, a medical practitioner who specializes in diagnosing, treating injuries and diseases using medical imaging radiology.
Or any other number of members, as may be notified by the state government.
Under the (Amendment) Bill, Each and every Registered Medical Practitioner has to keep confidential the identity and other information of a pregnant woman who has undergone an abortion, under section 4(5A)(1).
Note: The information and identity of the women can be disclosed to a person authorized by any law.
Any person who discloses the identity and other information to any other person not authorized by any law for the time being in force will be punishable, under section 4(5A)(2).
NEED FOR THE (AMENDMENT) BILL
Law is of dynamic nature, which means with the change in society law has to be changed along with it. The existing Medical Termination of Pregnancy Act, 1971, has not kept pace with the changing times, requirements, and developments in medical science. India is changing swiftly and the lives of the individuals are no longer similar to what was back then in the1970s which led to bringing an amendment to the 49 years old Law by the way of, The Medical Termination of Pregnancy (Amendment) Bill, 2020.
For the undergoing abortion over 20 weeks, women have to face the cumbersome legal recourse. There exists a need to expand this gestational period beyond 20 weeks as it is a health issue and not a legal issue. Whereas, maximum of the pleas seek termination of pregnancy due to fetal anomalies that are detected late, or the pregnant individual falls under the case of sexual assault and rape; above all minors, where the medial practitioners are not ready to perform abortions, irrespective of gestational period.
The (Amendment) Bill will surely ease the burden on Courts, assured confidentiality to the identity of mothers (where social stigma relating to abortion can cause chaos in the life of aborting individual). It aims, to expand women’s access to safe and legal medical termination of pregnancy services on social and humanitarian grounds as abortion is one of the chief aspects of the reproductive health of women.
Questions related to the disability of the fetus, the reproductive rights of the woman, and disability rights. These issues are complex and cannot be addressed based on Medical Board’s findings whether to continue or terminate the pregnancy, which turns out to be the decisive factor for the Court, rather than considering the woman’s reproductive rights. Therefore, Whether the Court’s decision shall solely be based on Medical Board Reports? If the reproductive rights of the woman are to be protected, Shouldn’t the right to terminate her pregnancy shall be her decision?
No doubt, the Medical Board may determine the physical well-being, but, The Board cannot ascertain the mental well-being and conditions of the woman. Thus, the right to terminate a pregnancy cannot be denied merely because the gestation period is beyond 20 weeks.
Geeta Devi v. State of Himachal Pradesh, Civil Writ Petition No. 2250 of 2017.
The High Court of Himachal Pradesh allowed the abortion of a 32 week developed fetus. The petitioner was 19 years old. The Court approached the Medical Board which was of the opinion that the development of the fetus in her womb would cause peril to the life of the petitioner along with the life of an infant. Also, vaginal delivery would be perilous.
The Court was of the view that there were major difficulties in the continuation of pregnancy, as reported by the medical board. Perhaps, it will wreak havoc in the Mental as well as the physical well-being of the petitioner and the abortion was the safest option.
Thus, the continuation of pregnancy jeopardizes the life of the petitioner and based on expert opinion that the fetus might not survive for long. The Court directions were given to the petitioner to terminate the pregnancy.
Anusha Ravindra v. Union of India, Writ Petition (Civil) No. 934/2017.
In the above case, the Court refused:-
The petitioner’s request for terminating pregnancy which was beyond 20 weeks, and
To amend the given Section 3 of the Medical Termination of Pregnancy Act, 1971.
However, a notice was issued to the Central Government to amend the Medical Termination of Pregnancy Act, 1971 in force. The petition seeks for the composition of a committee that should frame suitable guiding principles for an exigent and harmless way of terminating pregnancy under cautious medical facilities and to set up a permanent mechanism for abortion beyond 20 weeks in the cases of exception. Chiefly rape survivors, women with disabilities, Victims of incest.
In this case, the victim is a 10-year-old rape survivor who had been raped frequently by her maternal uncle due to which she got pregnant. At the time case reached Chandigarh court for termination of pregnancy, the minor was already 26 weeks pregnant and the court terminating her pregnancy as the law does allow abortion beyond 20 weeks.
Despite the Medical team was of the opinion that vaginal delivery is perilous to the life of both the victim and the infant as the pressure while delivering would not be supported by her pelvic bones. In a dilemma, the court was referred to the Supreme Court. In the end, the victim had a Cesarean- section delivery, and the minor was told that she had a kidney stone operation. The infant was given for adoption.
The Supreme Court ordered the Chandigarh administration to award compensation to the rape victim of rupees ten lac out of which one lac has to be paid straightaway to the victim, and her family for medical expenses and the remaining nine lac has to be kept as a fixed deposit in the name of the victim, for her future needs.
Also, the victim and her family’s identity to be kept confidential, and if not, it shall be taken as a contempt of court.
The proposed Medical Termination of Pregnancy (Amendment) Bill, 2020 ensures the safety and welfare of the women as it is pondered upon there empowerment. It aims to provide considerable reproductive rights to women which will prove to be beneficial, but, there is a long road ahead for liberal terminations of pregnancy laws. It is the job of the government to make sure that all standards and procedures in clinical practice are followed in health care institutions with advanced technology to ease the termination of pregnancy across the country. Also, the termination of pregnancy shall be decided on a human rights basis. The recommended increase in the gestation period from 20 weeks to 24 weeks can ensure justice for women who need to undergo an abortion without the court’s intervention.
Indeed, it is a significant step and would have assisted a lot of women who were left with no other option but, to approach the court, and went through all that pain to get there pregnancy terminated which were beyond the gestation period of 20 weeks. So, the changes made by the (Amendment) Bill, which is yet to be passed by the upper house will safeguard such women from- the burden to visit court, delay in pregnancy termination, mental agony, and enormous expenditure. The Supreme Court acknowledged the women’s reproductive rights, and the decision to terminate the pregnancy as their right to personal liberty.
Again, rules and regulations, for the Medical Board are yet to be passed by the Parliament to protect pregnant women from superfluous postponements which put the pregnancy at a perilous stage. It is due to the current Medical Termination of Pregnancy Act, 1971 that prompts the forlorn women to opt for unsafe pregnancy termination when they came to know about a fetal abnormality beyond the 20th week, that too from an inexperienced medical authority. The reason illegal abortions constitute to be the third foremost origin of maternal death in India. The lesser the intervention of courts, the less unsafe abortions become the cause of maternal deaths in India. “Needless to say, Law cannot be interpreted in such a manner that is unsuited to life.”
The gender equality movement in India has come a long way, Indian women are today enjoying at par with men in various sectors and spheres. Yet, no one discusses pregnancy termination, or want to acknowledge women’s freedom over her body. Indian society is of the opinion that women’s wallowing in sex before marriage is unchaste or immoral. All in all, which prompts women to alternative methods of terminating the pregnancy. Therefore, a step ahead would be acknowledging every woman’s right to abortion, and thus, spread awareness on the necessity for a harmless and medically safe atmosphere for the termination of pregnancy.
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)