Representative photo: A pregnant woman waits for a checkup at the maternity ward of a hospital in Honduras, January 2016. Photo: Reuters/Jorge Cabrera
In May 2017, we wrote for The Wire about the then-proposed Medical Termination of Pregnancy (Amendment) Bill 2014. The much-needed amendments to the Medical Termination of Pregnancy (MTP) Act 1971 was finally passed on March 25, 2021.
The amendment made four changes to the MTP Act 1971.
Firstly, it extended the permissible cap for abortion from 20 to 24 weeks in such a case when a minimum of two registered medical practitioner believes that the pregnancy involves a substantial risk to the mother or the child. The amendment also allows an exception to the time limit for pregnancies to be terminated where any pregnancy is alleged by the pregnant woman to have been caused by rape or if it is necessitated by a diagnosis of any of the substantial foetal abnormalities.
This increase in the permissible cap for abortion from twenty weeks to twenty-four weeks was much awaited and has been appreciated across all corners as it is considered to be an important step in recognition of the rights of women. Before this amendment, the pregnant women seeking an abortion, had to run to the courts, adding to the trauma, and putting their mental and physical health at peril. However, here also the decision is dependent upon the medical board formed by the state for this purpose. In addition, the limitation period of abortion is increased only for a special category of women.
Second, the most appreciated step is that the amendment has well taken into consideration the unmarried women or women in a live-in relationship, who may get pregnant either due to failure of contraception or otherwise. The new amendment uses the term ‘woman and her partner’ in the place of ‘married woman and her husband’. Apart from this, the new amendment act does not put any time restrictions within which the decision should be made by the medical board. This loophole can give rise to a situation that arose in Ms Z v. State of Bihar, where the upper limit for the termination was missed by the rape victim due to the delay in permission on the part of the medical board.
Third, another major amendment made by the act is the insertion of section 5A which deals with the privacy of the women. It provides that the name and other particulars of a woman whose pregnancy has been terminated shall not be revealed except to a person authorized under any law for the time being in force. The statement of object and reason of the ‘bill’ further provides this amendment will also ensure dignity, autonomy, confidentiality and justice for women who need to terminate the pregnancy which has been translated in the act.
Fourth, the limitation concerning the time period of pregnancy will not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a prescribed Medical Board. This is a much-welcomed provision which irrespective of gestation period allows termination of pregnancy in the cases of substantial fetal abnormalities. It also has the similar loophole which we discussed earlier, as no provision for a time bound decision of the medical board has been added. However, it is expected that this is the gap where judicial activism will come into play.
There is no doubt that the 2020 amendment to the MTP Act 1971 has not taken into consideration the women’s choice of abortion instead has left open the debate regarding the need-based approach over the right-based approach as well pro-choice over pro-life. The question here is, without giving a choice of abortion to the women are we really following it in spirit or just in letter. Also, as defined by various judgements privacy is a multidimensional and multifaceted concept beyond disclosing the name, and includes the privacy of choice. Thus, the right to privacy needs to be defined and reflected with such approach along with the exceptions, and balancing other existing fundamental rights.
The defence that the right to abortion should be women choice, as in Roe v. Wade (1973) in the US, is that it is the women who suffer. The most conservative state of the US ie. Texas and Catholic European countries like Poland and Portugal have comparatively liberal law on abortion. In the Netherlands, abortion is permitted virtually on request at any time between implantation and viability if performed by a physician in a licensed hospital or clinic. Even a developing country like South Africa explicitly provides for ‘the right to bodily integrity, and reproductive rights’ and for ‘health care services, including reproductive healthcare‘.
We shouldn’t forget that it is the woman’s womb that carries the foetus. It is her body that releases the hormones. It affects her mental as well as physical health. Therefore, it should be her decision whether she wants to stay with the pregnancy or terminate the same. The choice of abortion is the exercise of women’s sexual and reproductive rights.
The autonomous decision of women’s sexual and reproductive health need to be recognised and respected to its core. Considering that there is no upfront support given by the government in taking proper care of the persons with abnormalities, the right to life of foetus proposition needs to be rethought. The States’ control should be minimal as it is the woman and her family who has to take care of the child, and the socioeconomic conditions in India does not leave a conducive environment of ‘dignified life’ for that child, making it a distant dream. Such a situation paves way for illegal abortions, raising maternal infections and deaths. Also, the trauma the mother suffers knowing that the child will be born with abnormalities or the child may die upon birth should be snipped.
Saumya Rai is an academician based at Toronto. Sajid Sheikh is an assistant professor at the Maharashtra National Law University, Mumbai.