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The Medical Termination of Pregnancy (Amendment) Bill, 2020 was passed by Lok Sabha in March this year. This bill which was introduced in Lok Sabha by the Minister of Health and Family Welfare, Dr. Harsh Vardhan on March 2, 2020, amends the Medical Termination of pregnancy Act, 1971) MTP Act) which provides for termination of certain pregnancies by registered medical practitioners.
There were some much anticipated amendments that were brought about by this bill; especially the removal of the requirement of opinion of two medical practitioners for termination of pregnancy of 12 to 20 weeks. By this amendment, pregnancy up to 20 weeks may be terminated with the opinion of one registered medical practitioner and termination of pregnancy between 20 to 24 weeks may be terminated with the approval of two such medical practitioners.
Further the amendment also seeks to constitute a Medical Board at the state level which will examine cases where termination of pregnancy is necessary due to the diagnosis of substantial foetal abnormalities and where the upper limit otherwise provided for in the Act, will not apply. Further, the amendment also seeks to impose punishment of up to 1 year or fine or both for disclosing the name and other personal information of a woman terminating her pregnancy, unless revealed to a person authorized by any law.
The text of the amendment bill can be read here.
While some of these amendments have been welcomed, the absence of a vision and perspective behind the proposed law, especially one that is grounded in the recognition of women’s autonomous rights over their bodies and medical choices.The Act is far from being a rights based legislation; it does not confer termination of pregnancy as a matter of right to women. The Act pre-supposes a medical health condition (danger to woman’s life) which solely determines the need or otherwise behind a woman’s reasoned decision to terminate her pregnancy.
A coalition of organisations including Pratigya, Jan Swasthya Abhiyan, Crea, CEHAT, ASAP, Masum, Haiyya, Common Health, FRHS India along with Jindal Global law School have formulated specific recommendations to make good this lacunae.
The recommendations are as follows:
Termination of pregnancy as a matter of right
The amendment bill section 3 states that , a pregnancy may be terminated by a registered medical practitioner, if length of pregnancy is up to 20 weeks and if between 20 to 24 weeks, then by two medical practitioners, if there is an opinion that the pregnancy would involve risk to the woman’s physical or mental health or to the child’s health. The recommendations suggest that this clause be changed to allow termination of pregnancy at the will of the pregnant woman, up to 12 weeks and based on the opinion of one medical practitioner for pregnancy between 12 to 24 weeks. It further suggests that injury to mental health includes anguish caused by an unwanted pregnancy.
Limitation to termination beyond 24 weeks
Further sub section 2B of section 3 limits consideration of termination beyond 24 weeks only in cases where foetal abnormalities are detected. The document recommends that this requirement be done away with given that that termination of pregnancy can be carried out safely post-24 weeks and there are multiple reasons which could delay access to pregnancy termination services. These include early or forced marriages, lack of knowledge regarding contraception, rape or sexual violence, delay in recognizing the pregnancy, delay in decision making due to lack of autonomy, intimate partner violence, difficult family circumstances, and lack of mobility especially in case of persons with disabilities, or institutionalized persons. A change in circumstances may also lead to a pregnancy becoming unwanted after 24 weeks, such as when there is separation from or death of a partner, or a change in financial situation.
Argument against constitution of Medical Boards
Further, the document is completely against the constitution of Medical Boards at the state level as they will only cause a hindrance to the process of termination. Instead, the opinion of one gynaecologist (whom the pregnant person has been consulting), in consultation with no more than one other medical practitioner, may be required for abortions only beyond 24 weeks. The document states that the requirement of Medical Boards in order to diagnose substantial foetal abnormalities that necessitate termination violates the rights to dignity, privacy, and decisional autonomy of the pregnant person. Further, these boards would become third-party authorisation causing substantial delay in access to ultimate abortion, thus increasing the threat to the pregnant woman’s life or causing her more trauma. The Boards would also act as a serious barrier for pregnant persons needing their approval since the expert composition required for such a Board may exist only in the metro areas. For those living in rural areas, there would be substantial costs and delays involved. Further, the varied composition of the boards could lead to varied opinions, further delaying the decision making. Also, the board will seem like an inquiry board asking intimidating or humiliating questions to women who may already be reticent due to their circumstances and could prefer unsafe methods for termination than go through these bureaucratic processes.
Opinions of International women’s rights organizations
The document also points to recommendations of international organizations such as the UN Human Rights Special Procedures Working Group on the Issue of Discrimination against Women in Law and in Practice which released a statement in 2017 asserting that any legislative requirements for abortion should not cause delays that would prevent the carrying out of termination before the pregnancy becomes too advanced. Even the World Health Organization acknowledged that third-party authorisation requirements undermine women’s autonomous decision-making.
Safeguarding privacy of women
Further, insertion of section 5A seeks to impose punishment of up to 1 year or fine or both for disclosing name and other personal information of a woman terminating her pregnancy, unless revealed to a person authorised by any law. The document is completely against the disclosure of such details to any person authorised by law since that would be completely antithetical to the woman’s right to privacy.
Expansion of Provider Base
In order to enable large number of pregnant people to benefit from ―advancement in medical technology for safe abortion, Campaigners have urged that qualified and trained nurses, as well as other suitably qualified healthcare providers, be included in the list of abortion providers to provide early abortion, especially medical method of abortion. Recommendations of the World Health Organization with regard to who can provide an abortion should be seriously considered.
Clashes with POCSO Act
The document points out that under the Protection of Children from Sexual Offences (POCSO) Act 2012, sexual activity between minors (under the age of 18) is a sexual offence. Hence, any consensual sexual activity between adolescents is effectively a crime and needs to be mandatorily reported to the police. This means that if an adolescent girl wishes to terminate her pregnancy, she would have to divulge such information to the police which violates her right to privacy, which the MTP amendment seeks to protect.
Almost 50 years have passed since the principal Act came into force and yet the legislation lacks a rights based approach. It is high time that the law recognises a woman’s right to her body and her choice to terminate her pregnancy without any conditions or requiring approval of a doctor. By ensuring that the amended law transforms into a rights based legislation, not only will cases of unsafe abortions decline but it will also give women the volition that is a matter of a natural right.
The MTP Bill is yet to be passed in the Rajya Sabha and is likely to l come up for consideration in the next session of Parliament. The amendments proposed by Campaigners and the Coalition are crucial and need to be discussed in the public domain. So that, when the matter is ‘debated’ an informed view, that factors in Women’s Voices, influences the debate, and the law.
The document prepared by the Coalition of civil rights and feminist organisations may be read here.
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