Work Still In Progress: Delayed Implementation Of Women's Reproductive Rights

Reflecting on the legislative backdrop of the MTP Amendment in 2021, the Act sought to extend the gestational age limit to 24 weeks for rape survivors. Additionally, the requisite of a Medical Practitioner's (RMP) opinion for 20 weeks, and the opinion of two RMPs' was extended to 20-24 weeks. The amendment extended the purview of termination due to contraceptive failures to unmarried women, representing a significant step towards recognizing the reproductive autonomy of women irrespective of marital status. The amendment also necessitates adjustments in three forms- Form I, Form II & Form III, replacing the terms “married woman” and “husband” with the more inclusive term “partner”, this linguistic amendment reflects the commitment to inclusivity.

Operating within the Constitutional framework where “health” falls within the State List, as per the Seventh Schedule of the Constitution of India, it becomes imperative for the states to notify the amendments made under the parent act, to ensure the broader goal of providing affordable and quality healthcare to all the citizens, especially women.

The disparity in nationwide implementation of the MTP Amendment exposes the deferred progressive reproductive rights for women. Orissa and Delhi are the only states/UT who are leading the pack, the rest of the states are strolling as if the reproductive rights of women are the Sunday afternoon naps. This delay serves as a glaring example of realizing progressive reproductive rights for women through legislation when encountered with administrative procrastination. It reflects upon the seriousness of the executive to prioritize women-centric agendas over other developmental goals. Women, who should have benefitted from the extended gestational time limit for the termination of pregnancy and the eased regulations, find themselves in the limbo of administrative hurdles and uncertainty.

Beyond the overarching delay in the implementation of the MTP Amendment, 2021, a sub-narrative emerges that Rule 3(2)(b) of the MTP Rules, 2021 denies single women the right to terminate their pregnancy after 20 weeks, creating a formidable barrier. Only “special categories” of women, rape survivors, sexual assault, widows, divorcees, and women struck in humanitarian emergencies, can terminate the pregnancy post 20 weeks, which further creates a barrier for single women to terminate the pregnancy after 20 weeks. The Supreme Court has recognized this but unfortunately, no change has been made in the legislation. This is the topic for another op-ed, but drawing the conclusions that though the legislation has been made to protect the reproductive rights of women somehow even after the laws and progressive judgments are made in the courts, the beneficiaries of the laws, the women, somehow suffer either because of state's executive lethargy or people not being aware of the recent amendments in the laws.

Regrettably, no direct punitive measures or penalties have been specified in the Act to curb such delays in implementation on the part of states nor there are retrospective guidelines prescribed for the intended transition period. In the absence of which, it is organic for states to play a passive role by seeking to delay their political obligations in lieu of other states not initiating any notification. Such tendencies are detrimental to the spirit of intergovernmental cooperation as exemplified in the case of Right to Education wherein Kerala's success in achieving positive outcomes in primary education triggered a domino effect, compelling the rest of the states to prioritize its steady implementation. Unfortunately, the same can't be achieved for the MTP Act.

Such a status of dormancy also has ethical implications. It results in ambiguity on the part of healthcare professionals who are caught in this federal maze to realize their professional duties. This hesitation among healthcare professionals directly affects women's autonomy and access to safe abortion. The exacerbation of reproductive health disparities in India, rooted in one's geographical location is consequential to such progressive acts being put on ice by the states.

Administrative lethargy has led to the delayed implementation of the MTP Amendment, 2021, notably in Union Territory Delhi, the blame game between the L-G & the Government of NCT Delhi, has impacted the implementation of the progressive laws that were intended to protect women. It hampers India's commitment to not one but 3 SDGS namely, SDG 3 on Good Health and Well-being, SDG 5 on Gender Equality, and SDG 10 on Reduced Inequalities. India exhibits a shifting landscape regarding equitable access to reproductive rights and pro-choice interventions. This trivia of the delayed implementation of the MTP Amendment, 2021 raises an important and broader question of whether any law, no matter how progressive, can see the light of the day if the Government machinery keeps on delaying the execution of the Act.

Both Authors are pursuing Pratham-Ti Fellowship: An initiative by the Office of Priyanka Chaturvedi. Views are personal.