The Medical Termination of Pregnancy Amendment Act 2021 which was approved by Rajya Sabha initially for amending the pre-existing Medical Termination of Pregnancy Act 1971 on 16th March 2021 and the Amendment Bill was further approved in the Lok Sabha on 17th March 2021 granting further rights to women with regard to their abortion policies. The main aim of the Act was to increase the accessibility of women to safe and legal abortion facilities on multiple grounds such as humanitarian, social, therapeutic and many more. The amendment Act includes certain sub-sections and clauses within the previous Act of 1971 majorly with respect to exploding the upper gestation limit for termination of pregnancy under specific conditions in order to fortify the comprehensive abortion care.
But this facility shall be made available under strict terms so as to avoid its misuse and without compromising the service and quality of abortion services of such women who are going through abortion in their later trimesters. This amendment shall act as step towards the safety and welfare of many categories of women, including the unmarried ones.
Lately, there were many petitions received by the Supreme Court and High Courts seeking abortion at certain gestational age which was beyond the permissible limit of the MTP Act 1971 on the grounds that there were foetal abnormalities or pregnancies due to sexual violence faced by the victim (women). Thus, the Parliament was of the opinion that there was dire need of amending the MTP Act 1971 as per the current status quo of the nation. Thus, the amendments were approved by both the houses to ensure respect, independence, confidentiality and justice for women who have legitimate reasons to terminate their pregnancy.
These new changes have taken many factors into consideration such as the technological advancements in medical field, simplifying the requirement of providers (doctors), increasing the gestation limit in certain specified cases to unburden the women. The main purpose of these amendments is to strengthen the abortion services provided to women in the best possible way. Some of the common features of the Medical Termination of Pregnancy Act 2021 are given below.
Salient Features of Amendment Act 2021
The Medical Termination of Pregnancy Amendment Act received the assent from President and was notified by the Central government on 25th March 2021 bringing forward the conditions under which the pregnancy may be aborted and the striking feature of Amendment Act 2021 was that the upper gestation limit for abortion was increased by the government for certain specified women under the supervision of doctor. The salient characteristics of the Amendment Act are-
- Before the amendment, the Act required only 1 doctor’s opinion if the abortion was done within the 12 weeks of conception and 2 doctors’ supervision if it was to be done within 12 to 20 weeks of conception. The amendment Act now permits the pregnant women to conduct abortion with 1 doctor’s opinion within 20 weeks of conception and in case where there is 20 to 24 weeks of conception, advice of 2 doctors will be required for conducting a legal abortion for specified category of women like survivors of rape, victims of incest, differently abled women etc. But this act excludes the victims of Marital rape.
- The Bill further directs the States and Union Territories to set up Medical Boards for making decisions with regard to this matter that whether a pregnancy may be terminated after 24 weeks of conception in case of foetal abnormalities. The functions and composition of the Medical Boards shall be provided under the Rules of the Act later.
- The amendment further changes Section 3 of the Act which earlier didn’t extend to unmarried women, but now even unmarried women are included in the category. The new Amendment Bill rather than using the term “married woman and her husband”, the new amendment replaces that term with “woman and her partner”. Hence, it can be inferred that even unmarried women can terminate pregnancies within the gestational limit as prescribed in the Act.
- The Act has another addition of section 5A which penalises medical practitioners who fail to secure the privacy and confidentiality of the pregnant women coming for termination of their pregnancy.
Thus, these were some of the major features of the MTP Act 2021, but even though these amendments are brought in favour of women’s reproductive rights, the topic of “abortion” has always generated powerful political, ethical, moral and legal debates and discussions. This is because abortion is not just a medical and health-based issue but it is the hinge of much wider ideological conflicts wherein many other factors come within its ambit such as the meaning of family, motherhood, mental and emotional state of women and women’s sexuality.
There are many nations who till date, have not legalised abortion, whereas India is one of those countries which legalised abortion around 4 decades ago, in order to control the population of the state. There have been repetitive attempts to liberalise abortion, but this subject is often criticised and observed differently from various perspectives. The common points of conflict are ranging from access to safe abortion facilities to the MTP Act’s overlapping with the other Statutes like Pre-conception and Prenatal Diagnostic Techniques (PCPNDT) Act 1994 and the recent Act of Protection of Children from Sexual Offences (POCSO) Act 2012.
Other Controversies Related to Medical Termination of Pregnancy Act
Some of the related arguments made against the Medical Termination of Pregnancy Act was by group of feminists that the main purpose of enacting this legislation was to use it as tool for population control rather give a feminist push for the legislators as the Act didn’t focus on the rights-based framework of pregnant women. In the “A Bibliography of Abortion Studies in India” by Malini Karkal, it was noted that the main agenda of the research was to consider and understand abortions with respect to different factors like duration, socio-economic status, abortion as taboo, contraceptive histories etc.
And as per the recent amendments passed by the Parliament, the termination process needs to be performed only by doctors with gynaecology or obstetrics specialization. As per the World Health Organization recommendation that for every 1000 there should be 1 doctor, India has the ratio of 1:10,189 people. Moreover, the All-India Rural Health Statistics (2018-19) showcases that there are around only 1,351 gynaecologists and obstetricians in the community of health clinics in the remote areas of India.
India has distinct shortage of doctors and qualified medical practitioners which can be evidently seen in women’s access to safe abortion facilities which also got reflected in the National Health and Family Survey (2015-16), where it was observed that 47% of the abortion were carried out by the nurses or Auxiliary Nurse Midwife (ANM) or any Lady Health Visitor also known as “Dai” or even the female family members. Thus, these numbers come as a shock as against such legislation.
Dilemma Regarding Sex Selective Abortion
The complex relation between abortion and practise of selective abortion of female foetuses has been the basis of resent towards such legislations, as the numbers of female child has fallen with the enactment of the MTP Act 1971. This issue rises from the situations where the mother themselves decide to have sex-selective abortions and kill the female foetuses which goes against the ideas of ethics and agency as per the context of women’s control over their bodies.
Many women are subjected to other pressures due to which they have to undergo sex selective abortions like pressure from husband’s families or it is not an informed choice of the mother due to other factors like illegitimacy of the child, lack of social facilities for child care, economic constraints and lack of awareness of contraceptives etc.
In order to put a bar on such sex selective abortion, the PCPNDT Act was enacted in 1994 after the intense and successful campaigning against sex selective abortions and there was category of Indian feminists who were playing an active role for bringing up the legislation putting a restriction over the testing of biological sex of the foetus. Even though there were mass campaigns against the unlawful sex determination of foetus, the sex ratio of females at birth continued to fall indicating that sex determination was still being carried out and abortions of foetus was done in cases of female foetuses.
The MTP Act and PCPNDT Act if seen together, project an interesting apposition stating that right to abortion involves women’s right to have control over their bodies, but at the same time they are restricted by law from choosing specifically when they can abort their foetuses. It is often seen that women in India have no control over their sex and contraceptive methods, as they are not well aware of them or they have no other alternative but to opt for abortion as only form of birth control.
Women often have abortions because of the taboo of illegitimacy of the child, or because they are not economically stable enough to afford another child or the new day mothers are so career oriented that they don’t want to risk their jobs with untimely pregnancies or new found responsibilities of mother. But the question lies that while we liberalise abortions via the MTP Act 1971 or penalise the sex selective abortions through the PCPNDT Act, woman don’t have the independence towards their bodies and the autonomy somewhere lies more in the hands of state than with them.
In the case of Justice KS Puttaswamy (Retd.) v. Union of India and Ors, Justice Chandrachud remarked that, reproductive choice is personal choice guaranteed under Article 21 of the Indian Constitution, and despite having a vigorous jurisprudence on reproductive rights and privacy of woman, this doesn’t render a striking shift in the power beheld with the doctors to the woman seeking an abortion. Hence, it can be witnessed that abortion ultimately remains in the hands of state-sanctioned conditionalities rather than with the mother.
Thus, from the above it can be inferred that the Medical Termination of Pregnancy Act 1971 was enacted to legalise safe and secure abortions within India, but due to our social stigmas and other factors the Act has been misused often. The recent amendments made in the Medical Termination of Pregnancy Amendment Act 2021 increased the gestation limit of termination for specified categories of women under the prescribed number of doctors. The amendments also speak of composition of Medical Boards within every state for taking decisions regarding abortions where the gestation periods have surpassed 24 weeks from conception. But all these amendments need to be implemented cautiously, or it can have a serious impact on the health of pregnant women and also lead to other social issues such as fall in female sex ratio, sterility among women etc.
Termination of foetus is a grave issue not just medically but also morally and ethically, as one is basically killing a living organism, but under some circumstances it needs to be done to save the mother from further trauma and issues, thus this right should be used carefully.
This article is authored by Rhea Banerjee, BA.LLB graduate.