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MTP (Amendment) Bill 2020 : Still A Long Way To Go In Recognizing Women's Autonomy

Setu Gupta
30 March 2020 4:19 AM GMT
MTP (Amendment) Bill 2020 : Still A Long Way To Go In Recognizing Women
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The Lok Sabha passed the Medical Termination of Pregnancy (MTP) Bill, 2020 on 17th March 2020 to amend section 3 of MTP Act, 1971. In its Statement of Objects and Reasons, the Bill identifies that with the advancement of medical technology there is a scope to increase the upper gestational limit for terminating pregnancies, which up till now stood at twenty weeks, but with the passing of the Bill, would stand at twenty-four weeks. The Bill does away with the anachronistic lower limit of twelve weeks and upper limit of twenty weeks as threshold for termination of pregnancies.

That being said, there are certain riders to these thresholds. First, even up till the increased twenty-weeks lower-limit, the decision to continue or terminate the pregnancy is still not at the discretion of the pregnant woman. If the pregnancy is within twenty weeks, one registered medical practitioner should be of the opinion formed in good faith that the pregnancy, if continued would result entail a risk to the life of the pregnant woman or a grave injury to her physical or mental health; or a substantial risk that if the child is born, it would suffer from a serious physical or mental abnormality.

Now, while injury to physical health is quite straightforward to determine, this raises the question as to what would constitute a grave injury to a pregnant woman's mental health as it more subjective in nature?

The section answers this question by way of explanation that if the pregnancy was a result of a failed device or method used by the woman or her partner (note the word 'partner' in place of 'husband' used in the 1971 Act) to prevent the pregnancy or limiting the number of children, then it would be considered that the resulting pregnancy would constitute grave mental injury to the pregnant woman. This is a remarkable and a welcome amendment as it would include pregnancies resulting from live-in relationships or even casual sexual relations as opposed to pregnancies resulting from the institution of marriage only.

Additionally, if the pregnant woman alleges that the pregnancy is the result of rape then that would be sufficient to constitute a grave mental injury. Notably, if the pregnancy resulting from rape has crossed the twenty-four week threshold then the termination is impermissible. The amendment Bill misses the chance to address the kind of situation that arose in Ms. Z v. State of Bihar (2017) where the rape victim missed the upper limit for termination owing to the laxity of the government hospital and subsequent delays due to procedural red-tape. The Supreme Court was compelled to render the termination impermissible but imposed hefty fine on the State.

Another welcome change brought by the Bill is that in cases where the termination of pregnancy is deemed necessary on the diagnosis of 'substantial' foetal abnormalities by a Medical Board, the upper limit of termination provided under section 3 would not apply. In recent times Supreme Court of India in several cases has permitted the termination of pregnancies due to substantial foetal abnormalities and not just when the life of the woman was in substantial danger, despite the fact that nowhere in the principal Act such a ground is provided (Refer Miss X v. Union of India (2016), Tapasya Umesh v. Union of India (2017), Meera Santosh Pal v. Union of India (2017). At least now, the interpretation of law, which was up to the creativity and wisdom of the judges till now, would be more uniform across all tiers of the judiciary of the country.

Also what would have been desirable was an interpretation of the word 'substantial' not leaving it just to untrammelled interpretative discretion of courts. If not an exhaustive list of substantial foetal abnormalities (which would be counterintuitive) some abnormalities should be mentioned such Down syndrome or severe cases of autism or where extra uterine life would be impossible without artificial sustenance, so that the courts may be able to apply ejusdem generis while determining whether a case should fall in the 'substantial' category.

The Bill also misses out on the opportunity to make termination of pregnancies more accessible by not replacing 'registered medical practitioners' with trained and qualified 'registered healthcare providers' as was envisaged by the MTP (Amendment) Bill, 2014. Such a change would have included doctors trained in Ayurveda and Homeopathy, auxiliary nurse midwives, general nurse midwives etc. The government can carry out training programmes for such healthcare providers to enable them to carry out medical terminations in non 'high-risk' pregnancies. In a country where the health-care system is already constrained and resources are limited, this move could have been a viable option.

The new amendment Bill demonstrates that the 'pro-life v. pro-choice' debate is still not on the horizon in India and State interest (in preserving the foetal life) though diluted to some extent still supersedes the reproductive autonomy of women. 'Abortion on demand', within the upper gestational limit, without providing the registered medical practitioners any reasons whatsoever, is still conspicuous by its absence in the amendment Bill. From an international human rights perspective, the Human Rights Committee has recognised the threat that hurdles to access to safe abortion present to rights of the women. Criminalisation and other hurdles in access to abortions compel women to seek perilous and unsafe abortions, thus causing a violation of the right to life under Article 6 of ICCPR. The Committee on Economic, Social and Cultural Rights has consistently called on States that limit access to abortion, to review and amend their municipal laws to ensure their compatibility with other rights such as that of health and life. General Comment 28 calls upon States reporting on women's enjoyment of Article 6 of ICCPR, to "give information on any measures taken by the State to help women prevent unwanted pregnancies, and to ensure that they do not have to undergo life-threatening clandestine abortions." Clearly, barriers to safe abortions are a violation of human right to life of women. Domestically, in K.S. Puttaswamy v. Union of India (2017) it was held by the Supreme Court of India that the statutory recognition of a woman's right to terminate her pregnancy is interlinked with her constitutional right to make reproductive choices, which in turn has been held to be an essential ingredient of personal liberty under Article 21 of the Constitution. The Apex Court further added that, a woman's freedom of choice whether to bear a child or not falls in the realm of privacy.

To sum up, indeed the MTP (Amendment) Bill, 2020 substantially improves upon the principal Act of 1971, by raising the upper gestational limit for termination of pregnancy, however, one would be remiss in not pointing out that it leaves a lot to be desired when it comes to building a nation's narrative of reproductive autonomy of women in the twenty-first century.

(The author is  Ph.D. Research Fellow (JRF) at Indian Law Institute, New Delhi. Views are personal)

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