Is India’s New Liberal Abortion Law Truly “Liberal”?

Abstract:

In India, the Medical Termination of Pregnancy Act, 1971 came in a time when discussions about women’s reproductive health were still in a nascent stage across the world, but the law has gotten quite obsolete in the present times. With 15.6 million abortions taking place in India per year of which 78 per cent were outside health facilities, it had become inexorable for the MTP Act, 1971 to survive in the papers without being amended. 

Nevertheless, the MTP Bill, 2020 has come and it not only seems to be addressing all the lacunae of the previous Act, but is also being hailed as outright progressive and having a liberal outlook towards Abortion. This article aims to analyze and answer, whether the law is truly worthy of the “liberal” title it is being honoured with, and if not then what are the suggested measures to make it so.   

Keywords: MTP Act/Bill, abortion, pregnant women rights, healthcare providers, liberal, privacy. 

HISTORY:

Forty-nine years ago, India framed its first abortion law on the recommendation of the Shantilal Shah Committee. At that time, Section 312 of the Indian Penal Code, 1860 deemed abortion strictly illegal. A woman was held liable for punishment for “causing miscarriage” under this Act and abortion was out of the question. The committee evaluated the socio-legal and medical aspects of abortion and decided on legalizing only medical termination of pregnancies under the MTP Act, 1971.

However, a question that arises on seeing the Act is why the term “Medical Termination of Pregnancy” was used instead of “Abortion”?

While some attribute this peculiar choice of words to the post-colonial hangover of using technical jargon in law, the actual reason is quite different. The law has been doctor-centric from the day it was framed. The term ‘medical termination of pregnancy”, was not used with an aim of ensuring that women enjoy it as a right to undergo safe abortions or protect her reproductive health, rather it ensured that the doctors performing abortions do not face prosecution. Such systematic use of words only gave women the illusion that their rights were being protected, but on closer inspection, it becomes conspicuous that the law barely did any of it.

MTP (AMENDMENT) BILL, 2020:

The MTP Act, 2020 was celebrated as reformist and liberal since this is only the second time that the archaic law has been passed for amendment since its formation. The law, rightly so, tends to do away with the majority of the lacunae that persisted in the earlier Act. 

The issues that prevailed in the MTP Act, 1971 have been addressed in the new Act to some extent, as such:

  • Accessibility- Earlier the law required nod of two registered medical practitioners for termination of pregnancy up to 20 weeks. This was a major shortcoming as many hospitals in India, especially in rural areas, do not have two doctors who can provide their opinion. Thus the facility gets limited to a great extent and these women are deprived of their rights.

This was addressed in the MTP Bill in such a way that now the opinion of one medical practitioner will be enough instead of two, in instances of abortions up to 20 weeks. Now more hospitals can facilitate abortion which will be especially beneficial for women from backward/rural regions, living with minimal facilities.

  • Obsolete 20-week bar- The law came into existence five decades ago when medical science, diagnostics and healthcare were primitive. Two primary reasons for the 20-week bar were;Termination of pregnancy post 20 weeks was not safe owing to the technology in those times.Sex-determination of the fetus was only possible after 20 weeks, thus preventing sex-selective abortions. 

However, in the 21st century owing to scientific advancement, doctors opine that abortions can be safely performed till as late as 24 weeks. In contradiction to the second reason, today sex-determination of a fetus can be done as early as in 10-12th week through Chronic Villus Sampling (CVS) method. Thus the whole purpose of this bar is defeated in the present age and time.

The Bill aims at increasing the time ceiling for termination of pregnancy from 20 to 24 weeks. This would be extremely beneficial for rape victims, minors and differently-abled women.

  • Legal procedures- The earlier Act deprived women of any bodily autonomy once she crosses 20-weeks of pregnancy. Whether she can abort a baby, even in extreme circumstances, was no more her choice. It required the women to file a case in the Court and the whole matter was to be decided by the Judiciary. Meanwhile, the women already suffering physically had to go through mental agony too.

With the Amendment, however, the upper gestational limit has been increased from 20-weeks to 24-weeks. Due to which now a woman may safely opt for abortion if she has crossed 20 weeks of pregnancy, on the recommendation of two medical professionals. This provision focuses on vulnerable women i.e., minors who suffered from incest and/or are physically or mentally challenged women, etc. Moreover, now the opinion of a 2nd registered practitioner will not be needed to terminate pregnancies up to 20 weeks.

  • Confidentiality- Section 3, Explanation 1 of the MTP (Amendment) Bill, 2020 provides replacing the word “husband” with “partner”. Though the aspect of “anonymity” or “confidentially” has not been fully protected, this change will go a long way in saving single women from facing social stigma and discrimination while they seek an abortion. This is a welcome change especially for women in live-in relationships and/or unmarried women who want to abort on grounds of contraceptive-failure.

In addition to this, lack of clear guidelines as to the status of Right to Life of a fetus has resulted in courts coming up with non-uniform judgments across the nation, which has created an air of uncertainty and skepticism among women.  

NEGLECTED ISSUES IN THE MTP (AMENDMENT) BILL, 2020 AND SUGGESTED REMEDIAL MEASURES:

While the amendment sure does address some issues, it can be safely contended that these are only the tip of the iceberg. The situation of maternal mortality and morbidity as a result of unsafe abortions is improbable to see any remarkable change, as the new Bill continues to focus on eugenics over women’s health.

  • Overlapping of Acts:
  • POSCO Act & MTP Act- The Protection of Children from Sexual Offences Act (POSCO), 2012 aims at preventing child sexual abuse. It makes it obligatory for the medical practitioner to register a complaint with the police prior to attending abortion of a minor who has suffered sexual assault. In the event that a doctor proceeds with such an abortion without informing enforcement authorities, he risks facing prosecution. As a result, minors shy away from going to registered doctors, and rather opt for abortions outside of registered faculties. Given that 47% of girls in India get married before 18 years of age, the whole purpose of MTP gets defeated which seeksanonymity and aims at protecting the identity of the women.

The Justice Verma committee in their 2012 report cited amending India’s law regarding rapes. They countered the POSCO Act on grounds of Article 34 of the Convention on Rights of Child (CRC) that prohibited any consensual sexual activity among minors. In lines of this, it is suggested that amendments should be made to laws related to consensual sex among minors while maintaining the requisite level of anonymity in terminating teenage pregnancies and putting them through the least legal complexities possible.

  • PCPNDT Act & MTP Act- The Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 prohibits disclosure of the sex of the fetus and subsequently gender-biased abortions. This becomes an issue when service providers abstain from performing an abortion in the dread of prosecution under the PCPNDT Act. Also, due to lack of complete knowledge of the Act, seekers fear reaching out for abortion in the presumption that abortion is the same as sex-determination procedure and therefore, unlawful. There are also increasing instances of law enforcement officers wrongly cracking down upon registered gynecologists and MTP centers while carrying out operations to curb sex-selective abortions.

The purposes of these two acts are utterly varied. However, nescience of the provisions of this Act and some unscrupulous elements of the society, the PCPNDT Act is being widely misused to prohibit legal medical terminations altogether. Thus the law enforcement officials should be well acquainted with the law and should apply the same in genuine situations only.

  • Expensive Medicines:

Medically, abortion can be performed either via surgical tools or with medicines. These medicines are either endorsed orally or through the vagina for termination of an unborn fetus. Oftentimes, doctors exploit desperate women by selling them birth control pills at exorbitant prices. This, however, is not illegal, as the MTP gives protection and power to these doctors in order to ensure birth-control, thus the power of misusing the law. Given the penurious condition of people and lack of sexual-literacy in rural India, it becomes unfeasible for these women to access exorbitant medicines.

It is suggested that the oral and vaginal pills used for termination of pregnancies should be mandatorily added in the National List of essential medicines. This should be sold at an affordable price approved by the government, which shall be uniform throughout India and conveniently available. 

  •  Availability of Providers:

According to the Bill, only gynecologists and obstetricians and MBBS doctors who have undergone a special two-weeks training can offer abortion services. These exclusive degrees and long training periods diminish the provider base and make it much less accessible for women to avail services. 

It is suggested that the training requirements suggested in the Bill should be different for “surgical” and “medical” methods of termination. A short training period (of 2-3 days) ought to be included as a prerequisite for MBBS doctors using the “medical” method. This would dramatically increase the provider base, since India has approximately 6,10,000 MBBS doctors, out of which merely 90,000 are trained to provide abortion. It is further suggested that mid-level healthcare staff, in addition to nurses and AYUSH doctors should be considered to provide medical abortion services for up to 9 weeks. Having been entrusted with providing facilities and health care services that are way more complex than medical abortion, their contribution might prove to be unparalleled.

  • Privacy & Upper-Gestational Limit:

While increasing of Upper-Gestational limit was hailed by the populace and was a welcome change from the restriction, on a finer read the Bill seems rather disappointing to say the least. Provisions have been made to increase the ceiling to 24 weeks for only a “special category” of women. This category incorporates rape survivors, vulnerable women and minors. This implies that women with Substantial Foetal Abnormalities would not enjoy this provision. Rather, for abortion on these grounds, the woman has to get approval from a Medical Board consisting of multiple members, which again puts her privacy in jeopardy. This provision openly legitimizes third-party authorization which defeats the provision of anonymity in the original MTP Act. Not only has certain provisions of the POSCO Act, but also the new Bill itself failed to keep the best interest of women at the centre.

CONCLUSION:

The above issues clearly signify how the essence of “liberal” abortion law gets lost in the labyrinth of improper executions and procedural loopholes. Forty-nine years have passed since the first Act came into existence, the societal structure and mindset has witnessed a dramatic shift since then. Therefore the time has come that a woman is considered a “human” first and a “child bearer” second. 

In this era, when women’s health and rights are suffering, reproductive rights, in particular, India has the opportunity to take over leadership and set the global agenda again, as it did back in 1971. We can only be hopeful that the Government reviews the proposed Bill before enacting it, as it’s high time that this law is made truly “women-centric” It is pertinent that women who need abortion will get it done some way or the other. The question is, whether we are there to aid them with the rights they rightfully deserve.

Author: Jyoti Rout, ICFAI Law School

Source:  https://i.pinimg.com/236x/19/22/90/192290e0b377de8cee3d8d64a5f41255.jpg

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