The Medical Termination of Pregnancy (Amendment) Act, 2021- Progressive But Not Far Enough

Background of the Law on Abortion

The law on abortion in India is primarily governed by Sections 312-316 of the Indian Penal Code (IPC) and the provisions of the MTP Act, 1971. The Medical Termination of Pregnancy Act, 1971 is an exception to the law criminalising abortion laid down in S.312 of the Indian Penal Code, 1860. S.312 of the IPC criminalises the act of "voluntarily causing a woman to miscarry"^[2] and prescribes a punishment of 3 years for the offence.^[3] The MPT Act, by laying down certain permissible grounds under which a woman can undertake medical termination of pregnancy, creates an exception to the general law against abortion. Therefore, it neither creates a rights-based framework for women to seek abortion nor does it decriminalise medical termination of pregnancy in toto. It is doctor-centric legislation that prescribes specific circumstances for legal abortions. S.3 of the MTP Act lays down the conditions and grounds under which a medical practitioner may terminate a pregnancy without being guilty of any offence under the Indian Penal Code. S.4 of the MTP Act lays down the place where the pregnancy may be terminated.

MTP Amendment Act 2021

The Amendment Act increases the maximum gestational limit for pregnancies that may be aborted on the advice of one 'registered medical practitioner' from 12 weeks to 20 weeks.^[4] For pregnancies that may be aborted on the advice of two medical practitioners, the limit has been raised from 20 to 24 weeks.^[5] However, the Act uses the term "in case of such category of woman as may be prescribed by rules made under this Act,"^[6] and therefore, only categories of women prescribed by the MTP Rules will be able to avail this option. Significantly, the Amendment Act replaces the word "by any married woman or her husband" with the words "any woman or her partner." The Amendment also introduces the establishment of Medical Boards comprising of (i) a gynaecologist, (ii) a paediatrician, (iii) a radiologist or sonologist, and (iv) other members, as may be specified by the state government.^[7]Their functions and other details will be prescribed subsequently by the MTP Rules. Lastly, the Amendment Act mandates that 'the name and other particulars of the woman whose pregnancy is terminated shall not be revealed, except to a person authorized in any law which is in force'^[8]; and any person acting in contravention of this provision will be punished with imprisonment which may extend to one year, or with fine, or with both.^[9]

Laudable Changes Introduced

Increase in gestation periods

The increase in gestation periods during which women can seek medical termination of pregnancies is in line with the developments in medical technology which now facilitate safe abortions to take place even beyond the first trimester of pregnancy, i.e 12 weeks. This amendment also takes into consideration the fact that a number of "birth anomalies" can be detected only in the later stages of pregnancies after the first trimester. Under the un-amended version of the MTP Act, if the length of the pregnancy was over 20 weeks and a woman wished to undergo a termination, she would have to file a writ petition before the High Court concerned or the Supreme Court. Now with the increase in the gestation period, for up to 24 weeks of pregnancy, she can seek to undergo a termination of pregnancy having taken the advice of two medical practitioners.

Recognition of pregnancies outside of traditional marriages

The Amendment reflects the change in definition from "pregnant married woman" to "pregnant woman" and from "her husband" to "her partner". These seemingly minor changes reflect the changing social norms and effectively destigmatise pregnancies outside marriages. The change in definition will mean that the MTP Act now takes within its ambit cases of pregnancies happening outside the traditional institution of marriage. This will put an end to statutory discrimination between married and unmarried women and extend the benefits of presumptive exception created under the law.

Another laudable amendment is the inclusion of unwanted pregnancies due to the failure of contraceptives as a ground for abortion.^[10] Under the original MTP Act, abortions could take place only by proving that there was grave risk to the pregnant woman or grave risk of serious physical or mental abnormality. The Amendment Act allows unwanted pregnancies by itself to be enough as a ground for abortion. Similarly, Explanation 2 of S.3 (2) clarifies that, in case, pregnancy has been a result of rape, the anguish caused shall be construed to be an injury to the mental health of the woman. This will, hopefully, put an end to litigations that are pursued by rape survivors, seeking medical termination of pregnancies up to 20 weeks of pregnancies.

Setting up of Medical Boards

Another welcome measure is the statutory mandate to set up of Medical Boards for cases beyond 24 weeks. At present, medical boards are created by various High Courts and Supreme Court after entertaining writs filed by women and were not in any way statutorily mandated. Statutorily mandating setting up of Medical Board will mean that a pregnant woman does not need to approach the Supreme Court or High Court pleading setting up of Medical Board to decide on her plea for termination of pregnancy which exceeds 24 weeks.

Drawbacks of the Law

Despite the laudable changes that have been introduced, the Amendment Act 2021 does not go far enough to alter the landscape of abortion rights in India. The biggest criticism that can be levelled against the MTP Act is that it falls short of being rights-based legislation. S.3 of the MTP Act still mandates the opinion of a doctor. The decision to take the call to opt for abortion is not solely in the hands of the woman and her partner. This implies that even if a pregnant woman wants to opt for an abortion, her consent is insufficient unless accompanied by the consent of a medical practitioner. By retaining the provision for medical practitioner's opinion, the MTP Act retains its overall regressive legal position on the issue of reproductive autonomy of women. Interestingly, the MTP Amendment Bill introduced in 2014^[11] was a relatively more progressive piece of legislation as it proposed that pregnancy up to 12 weeks could be terminated "on the request of a woman."^[12] An Amendment along these lines would have more aptly reflected the law laid down in Suchita Srivastava vs Chandigarh Administration,^[13] where the Apex Court held that-"a woman's right to make reproductive choices is also a dimension of personal liberty as under Article 21 of the Constitution." ^[14] A rights-based framework governing abortions would also be in line with the landmark judgment in KS Puttaswamy v Union of India,^[15] where the Supreme Court recognised women's constitutional right to make reproductive choices and the right to "abstain from procreating" was read into the right to privacy, dignity and bodily autonomy. An Amendment along these lines will also bring Indian legal position to closely reflect laws that exist in jurisdictions around the world that guarantee the right to abortion without mandating a third-party authorisation.^[16]

Another significant drawback of the Amendment Act is that pregnancies are allowed to be terminated only where continuance would "prejudice the life of the pregnant woman or cause grave injury to her mental and physical health"^[17] or "if there is a substantial risk that if the child is born, it would suffer from serious physical or mental abnormality."^[18] This applies to both cases whether within the 20 weeks period or 20-24 weeks period. This limited set of circumstances in which pregnancies can be medically terminated excluded reasons like death of partner and changes in socio-economic condition which may render the pregnant person and her partner incapable of raising a child in a satisfactory manner. As has been argued before, by not accounting for the right to abortion at will, the Act "makes motherhood the norm and abortion the exception."^[19]

Further, for periods beyond 24 weeks, the MTP Act allows abortions only for pregnancies involving "substantial foetal abnormalities". In treating physical or mental disability as separate categories which justify raising the statutory limit of 24 weeks, disability activists have long argued, MPT Act advances eugenicist perceptions and reveals an "ableist approach" of the law. Activists have sought that "the term 'anomalies' replace the term 'abnormalities' which reinforces the notion that foetuses with potential disabilities are undesirable."^[20]

Limitation of this statutory extension beyond 24 weeks to instances of "foetal abnormalities" would mean that a woman would still need to file a writ petition before the Court concerned if the length of the pregnancy exceeds 24 weeks and she wishes to undergo a termination for a reason other than the existence of "foetal abnormality". For example, abortions beyond 24 weeks are not permitted for pregnancies resulting from rape. In such cases, the pregnant rape-survivor will be forced to pursue judicial intervention to obtain permission for abortion. This will aggravate the plight of rape victims seeking abortions beyond 24 weeks.

Lastly, while the Amendment Act has considerably expanded the scope of its ambit by replacing the word 'husband' with 'partner', it still limits its scope to a 'partnership' framework, thus excluding groups like sex workers.

Progressive but not far enough

Although the Medical Termination of Pregnancy Amendment Act, 2021 does bring about some progressive reforms in the law governing abortions by including unmarried women within its ambit and extending the gestational limit for abortions, it doesn't go far enough to change the strict doctor-centric framework of the MTP Act. Further amendments must be introduced allowing abortions up to 12 weeks at the will of the pregnant person, extending the gestation period of 20-24 weeks to be applicable to all pregnant women and not just certain categories specified in the MTP Rules, extending the benefit of abortion beyond 24 weeks to include survivors of sexual abuse/rape and just those restricted to the diagnosis of foetal abnormalities, replacing the term "pregnant woman" with "pregnant person" to include transgender people within the ambit of the law. Such amendments, either by way of legislative process or judicial interpretation, will ensure that the legislative framework on abortion ensures that individuals have can exercise their reproductive rights in a safe, affordable and accessible.

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