The recent overturn of Roe v. Wade has not only left Americans in a shock but has also sparked a debate across the globe. The five-decade-old decision provided a constitutional right to abortion which was considered both a boon and a bane in the society. However, a woman’s right to choose should always be respected. Many believe that such choices should not be mandated by the State.
Women are an integral part of society. Protecting their rights should be of utmost priority and hence issues revolving around women should be addressed more fiercely now than ever. The laws vary across the globe with varied intensity. Countries like Iraq, Egypt, Senegal, etc., have prohibited abortion altogether whereas in India, Zambia, Japan, etc., the practice is permitted based on broad social and economic grounds.
The reproductive rights of women of India are safeguarded by the MTP Act, also known as the Medical Termination of Pregnancy Act, which was enacted in 1971. Recently the Upper House passed the Medical Termination of Pregnancy (Amendment) Bill, 2021 in March intending to amend the Act. Abortion is an integral part of the 1971 Act because earlier it was prohibited under Section 312 of the Indian Penal Code, 1860. The 1971 Act was revolutionary for Indian women but it still held some rigidity in its various aspects. A pregnancy could only be ‘medically’ terminated by a registered medical practitioner-
If the length of the pregnancy does not exceed twelve weeks. In this case the opinion of one Registered Medical Practitioner (RMP) is required.
If the length of the pregnancy exceeds twelve weeks but does not exceed 20 weeks. In this case, the opinion of two RMPs is required. They both must be of the opinion that the continuation of the pregnancy would impair the mental and/or physical health of the mother, and/or that if the child were to be born, it would suffer from serious physical or mental abnormalities causing it to be handicapped.
In the case of a minor pregnant woman, the law requires written consent from the parent/guardian.
The Amended Bill was passed in the Lower House in 2020. The new Medical Termination of Pregnancy (Amendment) Act 2021 expands the access to safe and legal abortion services on therapeutic, eugenic, humanitarian, and social grounds to ensure universal access to comprehensive care. It was required because the MTP Act was too hard and fast in its approach. Advancements in our medical science are fast-moving and hence it was felt that the Act should also be on the same page with the latest developments. Technology is so advanced now that abortions can even take place at advanced stages of pregnancy. The Amended Act now only allows doctors with specializations in gynecology/obstetrics to perform abortions. Earlier illegal abortion clinics were running in nooks and corners headed by unqualified professionals. Such places were a hub spot for crimes where the lives of women were endangered and their integral right to privacy was also threatened. Now the new Bill makes sure that even the name and other particulars of a woman whose pregnancy has been terminated are not revealed (except to a person authorized by law). In case of a breach of the woman’s confidentiality, a fine of up to Rs. 1000 or/and imprisonment of 1 year is imposed.
The Amended Act now permits abortion up to 20 weeks with the opinion of just one Registered Medical Practitioner (RMP). It even gives an extended period of up to 24 weeks for a special category of women such as minors, rape/incest victims, and differently-abled women. Minors now don’t require written consent from their parents/guardians for an MTP (Medical Termination of Pregnancy). This opens a safer channel for minors to get an abortion and lowers the risk of infertility and other health-related complications. However, to terminate a pregnancy between 20 to 24 weeks, the opinion of two RMPs is mandatory. In case an abortion is needed after the stipulated period of 24 weeks, permission from a state-level Medical Board is required. This Board consists of a gynecologist, a pediatrician, a radiologist or a sonographer, and other members who are notified by the state government. It only occurs in case of substantial fetal abnormalities. But cases, where pregnancies arising out of rape need to be terminated after the gestational period of 24 weeks, are exceeded, then a writ petition needs to be filed. Earlier unmarried women were not given the right to legally terminate their pregnancy on grounds of contraceptive failure. Now, this regressive clause of the 1971 Act is demarcated and women irrespective of their marital status can access safe and legal MTPs.
The new law aids the nation to meet the Sustainable Development Goals (SDGs) 3.1, 3.7, and 5.6. SDG 3.1 aims at reducing the maternal mortality ratio whereas SDGs 3.7 and 5.6 pertains to universal access to sexual and reproductive health and rights. The law also aims to end preventable maternal mortality. India’s Maternal Mortality Ratio (MMR) has also declined by 10 points in the last half-decade as per a special bulletin released by the Registrar General of India. With such figures, the Nation is on the track to achieving the Sustainable Development Goal (SDG) target of 70/lakh live births by 2030. Not only that but the new amendments will increase the ‘ambit and access of women to safe abortion services. This will ensure confidentiality, dignity, autonomy, and justice for women who need to terminate their pregnancy.
Even though the Act is revolutionary in its aspect but it has divided the society into two factions. One believes that terminating a pregnancy should be the choice of a pregnant woman only meanwhile the other preaches about how it’s the responsibility of the State to protect life and this also includes the life of a fetus. In Justice K.S. Puttaswamy (Retd.) vs. the Union Of India And Others (2017), the court recognized the constitutional right of women to make reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution however, the ball still lies in the medical practitioner’s court. But the fact remains the same, abortion is a medical conversation, and such difficult conversations should not be a part of political ones.
This article is written by Anoushka Singh Songara of Parul Institute of Law.