Introduction

With the introduction of the Medical Termination of Pregnancy (Amendment) Bill, 2020 in the Lok Sabha by the Ministry of health and family welfare earlier in the month of March 2020 and passing of the same on March 17, 2020, the abortion laws in India have called attention to themselves. The bill presently awaits the assent of the Rajya Sabha. Before framing an opinion, it becomes pertinent to peruse and scrutinize what sort of change it aims to bring in the abortion laws of India.

Before dealing with the proposed amendment, it is important to have a basic and primordial understanding of the practice of abortion. Abortion is defined as the expulsion of a fetus from the uterus of a woman before it reaches the stage of viability, which is generally believed to the 20th week of gestation. The Medical Termination of Pregnancy Act, 1971 is the legislation which largely governs abortion laws in India. The Act provides for termination of pregnancy in certain circumstances by the registered medical practitioners and covers other matters incidental to it. The proposed amendment seeks to bring a change to section 3 of the original act. The author would first deal with the concerned provision as provided in the original act and then would proceed to discuss the amendments proposed to the same along with their importance.

An insight into Section 3 of the MTP Act, 1971

The section provides for the circumstances where pregnancy may be terminated by registered medical practitioners. It legalizes abortion up-to 20 weeks of pregnancy subject to the opinion of (a) one registered medical practitioner if pregnancy is not more than 12 weeks, (b) two registered medical practitioners if pregnancy is more than 12 weeks but within 20 weeks. The grounds for termination provided under the section are as follows:

  1. If the continuance of the pregnancy would involve a risk to life or grave injury to physical or mental health of the mother
  2. There is a substantial risk to the child that it would suffer from serious physical or mental deformities.

The explanation defines grave injury to mental health as the anguish caused to women for the pregnancy caused by rape or when it occurs as a failure of any contraceptive used by any married women or her husband for the purpose of limiting the number of children.

Challenge to the provision

The provision was challenged in a PIL brought by the Cry for Life Society contending that the ground for termination of pregnancy due to the contraceptive failure violates the right to life of the unborn child. The Kerala High Court dismissing the plea made it clear that not all pregnancies can be terminated but only those which fall within the bracket provided by section 3(2) of the Act. The bench comprising of Chief Justice S. Manikumar and Shaji P. Chaly relied on the survey of the judgments, the concept of right to privacy, observed and stated, in the judgment dated 9th June, 2020 that their laudable objectives behind allowing the termination of pregnancy in the circumstances specified in the concerned provision. It cannot be said that everyone who is not interested to continue with the pregnancy is permitted to get it terminated. The court stated that the ‘Parliament by various regulations effort to ensure that unnecessary terminations are not carried out’, and taking the larger objective into consideration, it observed that the provision in no manner suffers of illegality, arbitrariness or infirmity and consequentially, affords no interference by the court, in the exercise of writ jurisdiction conferred upon it by virtue of article 226 of the Constitution. 

Problems the provision attracts?

  1. The provision makes the opinion of two medical practitioners as a prerequisite for the termination of pregnancy after 12 and before 20 weeks. This makes seeking termination difficult in rural areas.
  2. It, prima facie, attaches a taint to non-marital pregnancy as it permits termination in cases where there is a failure of the contraceptive used either by the married women or her husband.
  • It fails to take into regard that in certain situations the foetal abnormalities become manifest about the 20th week of pregnancy or later. It does not make provisions to cater to circumstances like these.
  1. The only recourse for seeking termination beyond the stipulated period of 20 weeks is to get a judicial order from the High Court. This ignores the ground reality that not everyone can have the recourses and access to court seeking such order.

The larger stumbling back is that due to issues like the above-mentioned women have to go for illegal abortion which is both detrimental and hazardous to the health of women. Taking into note that at times even legal abortions pose a hazard to the health of women, it is found that 8.5% of maternal deaths are said to have been a result of unsafe abortion and 10 women are believed to die every day as a consequence of the same.

What change the amendment, if approved, would bring?

  1. The bill seeks to increase both, upper limit as well the lower limit for the period within which the pregnancy can be legally terminated, making it 20 to 24 weeks, with the opinion of one and two medical practitioners, respectively. However, termination / abortion for up to 24 weeks pregnancy shall be allowed only in certain situations and circumstances as may be prescribed by the central government. It is majorly for rape survivors, victims of practices like incest and alike.
  2. The amendment by relaxing the standard to cases where the contraceptive failure takes place in case of “any women or her partner”, as opposed to “married women or her husband” as provided in the original act, solves one of the issues with the original act.

A step towards the protection of women’s right to privacy, dignity & to make reproductive choices

The potential benefits of putting such a provision in place would, to a certain extent, would cure the problem of unsafe and illegal abortion which are one of the major reasons for maternal deaths in India. Furthermore, it would give ample amount of time for foetal abnormality scan and in getting the opinion of two medical practitioners, as required by the bill. This is a solution to the plight of these children which are born deformed and consequently, abandoned and are forced by the circumstances to live a life of uncertainties and exploitation.

In the case of Suchita Srivastava and Another v Chandigarh Administration, the Apex court took note of women’s right to make reproductive choices and held it to be a dimension of Article 21 of the Constitution. The reproductive rights of women include her entitlement to carry the child to the full term of pregnancy, give birth and raise the child and also entails the right to terminate it for the grounds afforded under section 3(2) of the Act. And therefore, protecting these rights is a step towards reaching the ideal laws for abortion in our country. And as already stated above the amendment takes away the stigma associated with non-marital pregnancy and makes it a progressive piece of legislation.

Conclusion

The amendment does not only provide protection to the rights afforded to a woman, be it her right to privacy, dignity and other rights but is also a step to ensure that lives of children be not made to bear the consequences of not allowing the termination.

After the analysis of the abortion laws in India and their position when compared from that of law in the foreign jurisdictions, the author is of the opinion that we have a come a far way when looked at the countries like the European country of Malta where there still exists a complete ban on the practice, however, there’s still a long way ahead to reach to the ideal. In the opinion of the author, the proposed amendment can be said to be a step in the right direction in this long yet crucial journey to cover.


About the Author: Isha [2019-24] is pursuing  BBA, LL.B from National Law University, Jodhpur.

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