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Recently Medical Termination of Pregnancy (Amendment) Bill 2020 is scheduled to be tabled in Rajya Sabha. The MTP bill was passed in Lok Sabha last year. The bill aims to strengthen the abortion rights of women from the earlier Medical Termination of Pregnancy Act 1971. But the bill has certain important challenges associated with it, preventing it to become a comprehensive legislation.
The Act defines the conditions on which the termination of pregnancy can be made, and the qualified persons to perform the same. The Act aims to reduce the maternal mortality ratio due to unsafe abortions in India.
The act allows a woman to terminate her pregnancy within the first 12 weeks of pregnancy. After consulting an RMP (registered medical practitioner) woman can terminate her pregnancy.
If the women want to terminate her pregnancy between 12-20 weeks, she needs to get an opinion from 2 RMPs. The Medical practitioners have to ascertain that continuance of the pregnancy would risk the life of the pregnant woman or substantial risk (Physical or mental abnormalities) to the child if it is born.
First, the present abortion law is five decades old. The law permits abortion up to a maximum foetal gestation period of 20 weeks only. This denies reproductive rights to women. (Abortion is one of the important aspects of women’s reproductive health).
Second, currently, if a woman wants to terminate the pregnancy beyond 20 weeks, she has to follow legal procedure. The slow judicial process in India force woman to take illegal means to terminate the pregnancy. India Journal of Medical Ethics report in 2015 mentioned unsafe abortions were leading to 10-13% of maternal deaths in India. This makes unsafe abortions as the third-highest cause of maternal death.
Third, the advancement of science. After the 20th week, many foetal abnormalities can be detected using techniques like Ultrasonography. As the current law limit the time to 20 weeks, it can cause trouble to the mother as well as children in the near future. Hence, its extension is much needed.
Fourth, International practice: 52 % of global countries including the UK, Ethiopia, Austria, Spain, Italy, France allow termination of pregnancy beyond 20 weeks if there are any foetal abnormalities. 23 countries including Germany, Canada, Vietnam allow termination of pregnancy at any time based on the request of the mother.
First, the Bill extends the upper limit for permitting abortions from the current 20 weeks to 24 under special circumstances. This is applicable to a “special category of women”. Victims of abuse, rape survivors, the differently-abled, and minors fall under this category.
Second, the Bill proposes the requirement of the opinion of one registered medical practitioner (RMP) for termination of pregnancy up to 20 weeks of gestation.
Third, the Bill provides for two RMPs opinions for termination of pregnancy between 20 and 24 weeks.
Fourth, Bill constitutes a Medical Board. Every state government has to constitute a medical board. These medical boards will diagnose pregnant women for substantial foetal abnormalities. If any such substantial foetal abnormalities get detected then the termination of pregnancy can be done even after 24 weeks of gestation (no upper limit for the termination of pregnency in this case).
The Medical Boards will consist of the following members:
- a gynecologist,
- a pediatrician,
- a radiologist or sonologist,
- any other number of members, as may be notified by the state government.
Fifth, Bill protects the privacy of a woman. No RMP can reveal the name and other particulars of a woman who performs the abortion. However, RMP can reveal the identity to a person authorised by law. The violation of this provision is punishable with imprisonment up to one year, or a fine, or both.
First, the Bill raises the foetal gestation period for termination of pregnancy beyond 20 weeks. The MTP Bill also includes a special category of women. In short, the bill enables access to safe abortion and curb illegal abortion practices.
Second, the 1971 MTP Act states that, if a minor wants to terminate her pregnancy, the guardian has to provide written consent. The proposed bill has excluded this provision.
Third, the Bill will strengthen the reproductive rights of women. The Supreme Court in Mrs X v. Union of India, 2017 case has recognised women’s right to make reproductive choices and their decision to abort as a dimension of their personal liberty. The court also mentioned abortion primarily fall within the Right to Privacy.
Fourth, the Bill will reduce the burden on the Judiciary. At present, there are many cases registered in court seeking permission for abortion beyond 20 weeks. Meanwhile, with the establishment of the Medical Board, the burden on the judiciary will reduce.
First, the constitution of the Medical board. The constitution of the medical board presents a variety of challenges such as
- The present healthcare budgetary allocation (1.5% of GDP) makes setting up a board across the country, both financially and practically impossible.
- Apart from that, even if it is set up, access to the board by pregnant women in remote areas of the state is a matter of concern.
- No time limit is set for the board to respond to the requests.
- The board subject women to multiple examinations before allowing her to terminate her pregnancy. This is a violation of rights to privacy and dignity.
- Personal beliefs could impact the medical board’s opinion. For example, Madhya Pradesh High Court denied terminating the pregnancy of 13-year-old rape survivor only because a psychiatrist on the medical board had not supported her abortion.
Second, the amendments continue the patriarchal population control legacy. The bill does not give women control over their own bodies. It requires the medical practitioner’s opinion and not the request or will of pregnant women alone.
Third, the current bill does not consider a few important things in the termination of pregnancy. Such as personal choice, a sudden change in circumstances (due to separation from or death of a partner), and domestic violence.
Fourth, the amendment also fails to consider the abortion rights of intersex, transgender, and gender diverse persons.
First, the government needs to amend the bill to include a few changes in the Medical Board.
- The government has to specify a time limit for the board.
- The government have to consider the majority of opinion of the board members to avoid personal belief’s interfering with the board opinions.
Second, the government has to introduce personal choice, a sudden change in circumstances, and domestic violence as a criterion. Apart from that, the bill must include abortion among intersex, transgender, and gender diverse persons.
Third, the government might include a provision of will to terminate the pregnancy at an early stage within 20 weeks without the opinion of RMP. On the other hand, the government also have to release clear guidelines to restrict,
- Women performing abortions to prefer a male child
- Women performing abortions due to family pressures etc.
In conclusion, the MTP bill 2020 is a step in the right direction to ensure access to safe and legal abortion. But, it falls a few steps behind in terms of ensuring dignity, autonomy and justice for women. This can be done by including the necessary suggestions under the Act.