7PM |Seeking a more progressive abortion law|10th February 2020

Context: Medical Termination of Pregnancy (Amendment) Bill, 2020

More in News:

  • The Union Cabinet has approved the Medical Termination of Pregnancy (Amendment) Bill, 2020 to amend the Medical Termination of Pregnancy Act, 1971. 

Background:

  • The Indian Penal Code, enacted in 1860 based on British law, declared induced abortion illegal (Section 312), describing it as intentionally ‘causing miscarriage’.
  • The penalty for abortion practitioners was either three years in prison, or a fine, or both; for the woman availing of an abortion, the penalty was either seven years in prison, or a fine, or both. The only exception was when abortion was induced in order to save the life of the woman.
  • The Abortion Study Committee, headed by Mr. Shantilal submitted its report in December 1966.
  • Medical Termination of Pregnancy (MTP) Act, which was enacted by the Indian Parliament in the year 1971 with the intention of reducing the incidence of illegal abortion and consequent maternal mortality.

Medical Termination of Pregnancy Act, 1971:

  • The Medical Termination of Pregnancy (MTP) Act, 1971 provides for termination of pregnancy only up to 20 weeks. If an unwanted pregnancy has proceeded beyond 20 weeks, women have to approach a medical board and Courts to seek permission for termination, which is extremely difficult and cumbersome process.
  • According to Section 3 (2) of the MTP Act, 1971 a pregnancy may be terminated by a registered medical practitioner:
  • Where the length of the pregnancy does not exceed twelve weeks. In this case, only one medical practitioner’s opinion is required that the continuance of the pregnancy would involve a risk to the life of the pregnant woman (her physical or mental health); or there is a substantial risk that if the child were born, it would suffer from some physical or mental abnormalities to be seriously handicapped.
  • If the foetus is between 12 and 20 weeks old, then the procedure requires permission from two medical practitioners.
  • Beyond 20 weeks, Section 5 of the act applies, which permits abortion only in situations where the medical practitioner believes that abortion is immediately necessary to save the woman’s life. 
  • The Medical Termination of Pregnancy (MTP) Act clearly states the conditions under which a pregnancy can be ended or aborted, the persons who are qualified to conduct the abortion and the place of implementation. Some of these qualifications are as follows:
  • Women whose physical and/or mental-health were endangered by the pregnancy.
  • Women facing the birth of a potentially handicapped or malformed child
  • Pregnancies in unmarried girls under the age of eighteen with the consent of a guardian.
  • Pregnancies in “lunatics” with the consent of a guardian.
  • Pregnancies that are a result of failure in sterilisation.

Issues with the Act:

  • The Act thrusts the power of decision-making on medical practitioners, expropriating women’s right to autonomy and self-determination.
  • When a woman is beyond 20 weeks pregnant, the pregnancy may be terminated only if it’s immediately necessary to save her life. The Medical Termination of Pregnancy (MTP) Act of 1971 only makes abortion legal till 20 weeks.
  • The baby’s physical and mental health, which is a ground to terminate pregnancy prior to 20 weeks, is no ground to terminate pregnancy post 20 weeks.
  • This artificial distinction is not rational, for, medical opinions suggest that several foetal faculties develop much later than the 20 week period. Several foetal abnormalities become conspicuous only during late-term pregnancy.
  • Section 3(2) of the Act, which explains that when a pregnancy occurs due to failure of any birth control device or method used by any “married woman or her husband”, the anguish caused is presumed to constitute a “grave injury” to the mental health of the pregnant woman and thereby can opt for abortion. However, the applicability of this provision to unmarried women is contested.
  • There are also psychological factors like living in denial, until a time when it’s too late when they finally gather the courage to even think of abortion.

Salient features of proposed amendments:

  • Increased gestation limit: The bill has enhanced the upper gestation limit from 20 to 24 weeks for special categories of women. It would include vulnerable women including survivors of rape, victims of incest and other vulnerable women (like differently-abled women, minors) etc.
  • Opinion of professional: Bill has proposed requirement of the opinion of one doctor for termination of pregnancy, up to 20 weeks of gestation and introducing the requirement of opinion of two doctors for termination of pregnancy for 20-24 weeks of gestation.
  • Medical board: Upper gestation limit will not apply in cases of substantial foetal abnormalities diagnosed by Medical Board. The composition, functions and other details of the Medical Board to be prescribed subsequently in Rules under the Act.
  • Identity protection: Name and other particulars of a woman whose pregnancy has been terminated shall not be revealed except to a person authorised in any law for the time being in force.
  • For unmarried women, the Bill seeks to relax the contraceptive-failure condition. Earlier “only married woman or her husband” were allowed to medically terminate the pregnancy, but the Bill proposes the same for “any woman or her partner”.
Women’s right to make reproductive choices: The Bombay High Court (2016) and Supreme Court (in K.S. Puttaswamy v. Union of India, 2017) have both emphasised women’s autonomy to take informed decisions regarding their own bodies, fertility, and reproduction. Even when the judiciary has allowed abortions beyond 20 weeks, the fact that women have had to move the courts highlights a further restriction on their access to safe and legal abortions. In a country where 9–20% of maternal deaths are caused by unsafe abortions (an article for Sebastian et al 2014), there is an urgent need to align the provisions of the MTP Act with these judgments.  

 

Abortion laws across the world:

Abortion laws vary across the world. It is learnt that about 67 countries prescribe gestational limits.

  • 52 % of countries including France, the UK, Austria, Ethiopia, Italy, Spain, Iceland, Finland, Sweden, Norway, Switzerland and even Nepal, allow for termination beyond 20 weeks on the diagnosis of foetal abnormalities.
  • Some countries go beyond even these limits with laws in 23 countries-Canada, Germany, Vietnam, Denmark, Ghana, and Zambia-allowing for abortion at any time during the pregnancy on the request of the mother.
  • In UK, abortions are allowed at up to 24 weeks, with abortion guidelines including procedures for termination of pregnancies older than 20 weeks. It also states that, in pregnancy older than 21 weeks and 6 days, an injection to cause foetal death is given before the foetus is evacuated.

Conclusion:

  • The Medical Termination of Pregnancy (Amendment) Bill, 2020 is for expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarianor social grounds. It is a step towards safety and well-being of the women.
  • Recently several petitions were received by the Courts seeking permission for aborting pregnancies at a gestational age beyond the present permissible limit on grounds of foetal abnormalities or pregnancies due to sexual violence faced by women.
  • The proposed increase in gestational age will ensure dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy.
  • Though Medical Termination of Pregnancy (Amendment) Bill, 2020 is a step in the right direction, the government needs to ensure that all norms and standardised protocols in clinical practice to facilitate abortions are followed in health care institutions across the country.

Source: https://www.thehindu.com/opinion/op-ed/seeking-a-more-progressive-abortion-law/article30777394.ece

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