By Shashank Shekhar
Published On: October 4, 2021 at 12:00 IST
Introduction
The Medical Termination of Pregnancy (Amendment) Act, 2021 was passed by the Rajya Sabha on March 16, 2021 and came into force on September 24, 2021. The purpose of the Act is to regulate the conditions under which a pregnancy may be aborted with the opinion of one or two medical practitioners, which may vary according to the case.
This Act amends the original Act of Medical Termination of Pregnancy Act, 1971 and lays down a progressive path for the termination of pregnancies in India. The MTP Act makes an exception to Section 312 of the Indian Penal Code, 1860 which makes it a crime to cause a woman’s foetus to miscarry.
Abortion was prohibited in India until the MTP Act of 1971 was enacted; nevertheless, despite the 1971 Act, it is still not a woman’s right but a mere exception under the prescribed conditions of the Act.
Revisions to the Original Legislation
The MTP Act, 2021 is praiseworthy and commendable in itself and takes into consideration certain aspects which were not addressed in the original act. The Act lays down the definition of “termination of pregnancy”, which means a procedure to terminate a pregnancy by using medical or surgical methods.
The Act increases the upper gestation limit of 20 weeks to 24 weeks for survivors of rape, victims of incest and other vulnerable women (like differently-abled women, minors) etc. Earlier, the opinion of one medical practitioner was required for abortion up to 12 weeks and two medical practitioners for abortion from 12-20 weeks and after 20 weeks, the pregnant woman had to knock the doors of the court for termination of her pregnancy.
These archaic provisions have been done away with in the amendment Act and now the opinion of one medical practitioner is required for termination of pregnancy up to 20 weeks[i] and two medical practitioners for 20-24 weeks.[ii]
The Bill also requires the State Government or Union Territory to constitute a Medical Board to determine whether a pregnancy may be terminated beyond 24 weeks if there are significant foetal abnormalities.[iii] The Medical Board will consist of a Gynaecologist, a Paediatrician, a Radiologist or Sonologist, and other members as per the notification of the respective governments.[iv]
With the Amendment Act, the term “any married woman or her husband” is replaced with the term “by any woman or her partner.” This part of the provision is laudable since it becomes more inclusive than the original act; however, it does not address the termination of pregnancy of transgenders, which was recognised as a third gender by the Supreme Court in the landmark case of National Legal Services Authority Vs Union of India.[v]
Lastly, the privacy aspect of the woman undergoing abortion is also addressed in the newly inserted Section 5A of the Act, which states that:
“No registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force.” [vi]
Anyone who violates this provision shall be imprisoned, or fined, or both. In a judgement by the Supreme Court, the bench said that:
“A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall within the realm of privacy”.[vii]
This further strengthens and respects the choice of a woman who is undergoing an abortion in India.
Limitations of the Amendment Act
No woman can call herself free who does not control her own body.
Margaret Sanger
This quote by Margaret Sanger aptly describes the downsides of the MTP Act, 2021. The Act, however, progressed from the original legislation but still does not match with the contemporary viewpoints of the landmark judgements. The Act requires the opinion of a medical practitioner for the termination of a pregnancy and does not leave it solely to the woman, which is a major drawback.
In other words, this Act does not give the woman the right to an abortion, but it is a mere exception under some conditions which may or may not be denied by the medical practitioner, thereby enabling the woman to depend on the doctor’s discretion rather than her own freewill.
The MTP, 2014 Bill was more forward-looking and aligned with current Indian situations; however, it was unable to become an Act due to opposing proposals submitted in relation to the original act. The 2014 Bill required the termination of a pregnancy within 12 weeks at the request of the woman and did not require the opinion of a medical practitioner,[viii] unlike the original act.
Another significant limitation of the amendment Act is that it does not specify the categories of women who can go through a termination of pregnancy within 20-24 weeks. This creates a lacuna with respect to the categories of women and leaves its ambit open to interpretations by the respective states or union territories, which should not be the case and must be specified by the Central Government.
Lastly, one more significant drawback of this amendment is that it allows only “pregnant woman” to terminate pregnancies and leaves “pregnant transgenders” out of its ambit. With changing times and scenarios, transgender people should also have the equal right to terminate pregnancies similar to women. The government should further fill this gap which covers only one gender and must take certain measures to include transgenders as well.
Conclusion
The Amendment Act is a significant step forward in India’s efforts to reform the country’s abortion laws, although it might have been more in line with contemporary times if it had been able to overcome its constraints. These reforms in abortion laws could have been better if they could have provided the woman the right to an abortion on her own free will and not let the opinion of a medical practitioner hamper her decision.
Terminating a pregnancy after 24 weeks would also be fraught with legal pitfalls for those who are poor, disadvantaged, disabled, or rape victims. The decision to terminate a pregnancy beyond 24 weeks could only be made if the woman filed a writ petition, which might entail expensive legal expenses and might not be possible.
The government also requires the opinion of doctors for abortions but fails to consider the shortage of doctors in India, which could slow the process of abortion and the very essence of the Act may be defeated if this issue is not resolved.
Despite these challenges, it is not an exaggeration to claim that this amendment will almost certainly have good results, and that the nation is on the path to progress, tackling women’s issues more forcefully than ever before.
ABOUT THE AUTHOR
Shashank Shekhar is a first year student pursuing B.A.LL.B. from Hidayatullah National Law University, Raipur.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
To read the Act:
[embeddoc url=”https://egazette.nic.in/WriteReadData/2021/226130.pdf”][i] Section 3 (2) (a), Medical Termination of Pregnancy Act, 2021.
[ii] Section 3 (2) (b), Medical Termination of Pregnancy Act, 2021.
[iii] Section 2 (c), Medical Termination of Pregnancy Act, 2021
[iv] Section 2 (d), Medical Termination of Pregnancy Act, 2021
[v] National Legal Services Authority Vs Union of India Writ Petition (civil) No. 604 of 2013
[vi] Section 5 (a), Medical Termination of Pregnancy Act, 2021
[vii] K.S. Puttaswamy Vs Union of India, (2017) 10 SC 1 (India).
[viii] Section 4 (2) (a), Medical Termination of Pregnancy Bill, 2014