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Medical Termination of Pregnancy (Amendment) Act, 2021

  • Category
    Polity & Governance
  • Published
    25th Oct, 2021

Context

The government has notified new rules (Medical Termination of Pregnancy (Amendment) Rules, 2021) under which the upper limit for termination of a pregnancy has been increased from 20 to 24 weeks for certain categories of women.

Background

  • The new rules are under the Medical Termination of Pregnancy (Amendment) Act, 2021 passed by the Parliament in March.
  • It replaces Medical Termination of Pregnancy Act, 1971.
  • The Medical Termination of Pregnancy (Amendment) Act, 2021, had come into force with effect from 24th September 2021.
  • It comes in the 50th year since the MTP Act was first passed and in the backdrop of developments in the US, where reproductive rights of women are being actively eroded after a Texas law found a way around the landmark Roe V Wade case that guaranteed abortion access to women.

Analysis

What was the earlier process?

  • Earlier, abortion required the opinion of one doctor if it is done within 12 weeks of conception and two doctors if it is done between 12 and 20 weeks.

What is in the new Rules?

Relaxation

  • According to the Medical Termination of Pregnancy (Amendment) Rules, 2021, these categories include
    • survivors of sexual assault or rape or incest
    • minors and women whose marital status changes during an ongoing pregnancy (widowhood and divorce)
    • women with physical disabilities
  • The new rules also cover
    • mentally ill women
    • cases of foetal malformation that has
      • a substantial risk of being incompatible with life
      • or if the child is born it may suffer from such physical
      • or mental abnormalities to be seriously handicapped
    • women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the government

Termination of Pregnancy

  • The amended law defines “termination of pregnancy” as a procedure used to terminate a pregnancy by utilizing “medical” or “surgical” methods.

Who can abort?

  • One of the serious issues with the Medical Termination of Pregnancy Act 1971 was that only a ‘married women’ was eligible to abort pregnancy (up to 20 weeks).
  • Now, in the latest act, married as well as unmarried women are allowed to terminate their pregnancy.
  • The move from “married woman” and “her husband” to “woman” and “her partner” is appreciable. 

Who will decide on termination of pregnancy?

  • According to the new rules, a state-level medical board will be set up to decide if a pregnancy may be terminated after 24 weeks in cases of foetal malformation and if the foetal malformation has a substantial risk of it being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped.
  • Functions: The function of the Medical Board shall be
    • to examine the woman and her reports if she approaches for medical termination of pregnancy
    • to provide the opinion with regard to the termination of pregnancy
    • rejection of a request for termination within three days of receiving the request
  • The Board has also been tasked to ensure that the termination procedure, when advised by it, is carried out with all safety precautions along with appropriate counselling within five days of the receipt of the request for medical termination of pregnancy.

What issues remain unresolved?

  • The law is not inclusive of non-binary or trans persons who may be pregnant and seek an abortion.
  • Significantly, the decision to terminate a pregnancy still does not rest with the woman alone.
    • This is of grave concern as doctors have been known to charge exorbitant fees for the procedure (as per the National Family Health Survey 2015-16, 52 per cent of abortions were done in private hospitals), deny access to the service on moral grounds or send the woman or child to the courts even if the service can be legally provided.

What are women’s reproductive rights?

  • Based on the multiple definitions of reproductive rights, it can be said that they include some or all of the following rights –
    • right to safe and legal abortion
    • right to control one’s reproductive functions
    • right to access in order to make reproductive choices free of coercion, discrimination and violence
    • right to access education about contraception and sexually transmitted diseases and freedom from coerced sterilization and contraception
    • right to protection from gender-based practices such as female genital cutting and male genital mutilation

SC on women’s right to make reproductive choice

  • In the landmark judgment in KS Puttaswamy v Union of India, 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.

What is the actual situation of women’s right to make reproductive choice?

  • The issue of ‘right to reproductive health’ especially abortion, takes on special significance in the Indian context as various national and international stakeholders struggle to bring meaning to the important concepts of ‘women empowerment, rights and choice’.
  • Historically, reproductive health-related laws and policies in India have failed to take a women’s rights-based approach.
  • The Indian setting is heavily guided by the social context that defines the pressures, constraints, and options for women’s reproductive behaviour.
  • Women’s enjoyment of their reproductive rights is heavily undermined by gender-biased norms and practices that govern family matters. 

Issues and challenges in the Indian setting

  • Lack of healthcare: In India, one woman dies every 15 minutes due to lack of healthcare during pregnancy and childbirth.
  • Unsafe abortion: Although the country legalized abortion almost five decades ago, access is extremely limited, and it is estimated that one woman in India dies every three hours due to an unsafe abortion.
  • Child marriages: Despite a national law penalizing marriage of girls below 18 years of age, in practice India continues to account for the highest number of child marriages.
  • High rate of maternal deaths: Despite policies and schemes guaranteeing women maternal healthcare, India accounts for 20% of all maternal deaths globally. 
  • Undermining reproductive health: Further, Indian women face among the world’s highest risk of HIV/AIDS and discriminatory treatment if infected, forced abortions of female foetuses, trafficking for forced prostitution, custodial rape in government institutions, sexual harassment in the workplace; and harmful customs that seriously undermine reproductive health. 

Conclusion

Although India was among the first countries in the world to develop legal and policy frameworks guaranteeing access to abortion and contraception, women and girls continue to experience significant barriers to full enjoyment of their reproductive rights – it is time to change this.

As a country, it is essential to support and steer reproductive rights, not only because we want healthier women, but because we want empowered women and girls. In this regard, these changes in the MTP Act is a welcome step.

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