abortion

This article has been written by Nikita Kaushik.

It has been published by Rachit Garg.

Medical Termination of Pregnancy Act, 1971(MTP Act)

It allows medical termination of pregnancy for women. In other words, it allows abortion. It was passed to make the process of abortion safer and legal. Earlier, the medical termination of pregnancy was allowed up to 20 weeks, only for married women in case of failure of contraceptive method or device. However, now, under the Medical Termination of Pregnancy Amendment Act,2021 unmarried women are also covered. Moreover, 20 weeks period is extended to 24 weeks but only for special categories of women –

  1. Survivors of sexual assault or rape or incest
  2. Minors
  3. Differently-abled women
  4. Mentally ill women
  5. Change of marital status during pregnancy
  6. Women with pregnancy in humanitarian settings or disaster or emergency

How does termination take place under the Medical Termination of Pregnancy Amendment Act, 2021?

The opinion of one Registered Medical Practitioner is required for the termination of pregnancy up to 20 weeks of the gestation period (Gestation is the foetal development period from the time of conception till birth.)

In case of termination of pregnancy at 20-24 weeks of gestation, the opinion of two Registered Medical practitioners is required.

The Act does not allow medical termination of pregnancy beyond 24 weeks of gestation. It only allows it in case the Medical Board (consisting of a Gynaecologist, a Paediatrician, a Radiologist, and other members notified by the State Government or Union Territories) diagnoses substantial foetal abnormalities. 

Rationale behind the Medical Termination of Pregnancy Act

There is a direct nexus of this Act with Article 21 and Article 14 of The Constitution of India. Article 21 provides for the right to life and personal liberty which is subject to the procedure established by law which has to be reasonable, just, fair, and non-arbitrary. Right to privacy was recognized as an implied fundamental right by the Hon’ble Supreme Court of India in Justice K.S Puttaswamy (Retd.) V. Union of India and Others (2017) under Article 21 which includes individual autonomy, and reproductive choice of women. It is the woman who has to carry a child in her womb for 9 months and also has the responsibility to raise the child. Moreover, there are other societal imputed responsibilities on a woman being a mother. It is expected that it is only a mother who should take the responsibility of taking care of the child be it his/her food, bathing etc. A woman is not a chattel of her husband or any other person for that matter as stated by the Hon’ble Supreme Court in Joseph Shine V. Union of India. She can take rational decisions on her own and does not require anyone else to take decisions on her behalf. This Act specifically provides that if a woman is 18 years or above,  her consent is required for termination of pregnancy and if she is below 18 years then the consent of her guardian is required. Hence, the mischief of this Act is very much in line with essential constitutional principles, that is, constitutional morality, equity, justice, a good conscience, reasonableness, non-arbitrariness etc.

This Act aims for a better and progressive society by uplifting and giving confidence to the vulnerable section of society, that is, women. A country can progress only when all the vulnerable sections of society are taken care of and provided with equal rights and opportunities. This Act also ensures the mental and physical health of women by providing safe abortion by a Registered Medical Practitioner. 

Why are women still facing hardships when there is a law in favour of them

Section 3(2C) of the Medical Termination Amendment Act,2021 requires every State Government or Union Territory to constitute a Medical Board as discussed above. When a pregnancy exceeds 24 weeks in the case of the Medical Board diagnoses substantial foetal abnormalities, then only there can be medical termination of pregnancy. But, if the State Government or Union Territory has not constituted a Medical Board, in that case, the only recourse a pregnant woman has is to file a writ petition. Why push a pregnant woman from pillar to post? There must not be a delay in case of termination of pregnancy, as it may cause complications. The procedure before termination must be done as soon as possible so that there won’t be any delay and no threat to a woman’s life.

Though the rights have been given to women if there is an obstruction in the enforcement of rights then what is the point of having rights in the first place when they cannot take the benefits of such rights?

Recently, In the case, Xxxxxxxxxx V. Xxxxxxxxxx, Bombay High Court, Division Bench, thirty years old woman(petitioner) who was 25 weeks pregnant moved the Bombay High Court seeking medical termination of pregnancy due to foetal abnormalities. In her sonography reports, it was recorded that the foetus suffers from microcephaly. Microcephaly is a condition where the head is smaller than normal. People with this disorder generally have intellectual disabilities, abnormal facial expressions, poor speech, seizures, and dwarfism. As a result of the Hon’ble High Court’s decision, the Dean of J. J. Hospitals, Mumbai was ordered to form a Medical Board, which would consist of the Dean of the hospital, Head of Gynaecology, Professor, Head of Paediatric/Cardiac Surgeon, Professor and Head of Radiology Department, Professor and Head of Psychology Department, Professor and Head of Neurological Department, as well as any other expert in the field as the Dean deems appropriate to examine the petitioner.

The Maharashtra Government had not constituted a medical board, which is mandatory under MTP Amendment Act,2021. And the Court observed that not constituting a medical board causes hardship to a pregnant woman as it only leaves her with one choice of moving Court. This affects the mental health of the woman and causes a delay in the termination of pregnancy which may create complications in the process as in such cases pregnancy is already exceeding 24 weeks. Therefore, the Hon’ble High Court directed Maharashtra Government to forthwith constitute Medical Boards based on the Amended Act as it also increases the number of petitions filed for such purposes.

Moreover, the Act only extends medical termination of pregnancy up to 24 weeks in some special cases as mentioned above, women who do not fall under that special category still cannot get their pregnancy terminated beyond 20 weeks, so the only option they have is to file a writ petition in either High Court or the Supreme Court. 

Recently, in the case, X vs The Principal Secretary, Health & Family Welfare Department Government of NCT of Delhi, the petitioner who was unmarried and 23 weeks pregnant sought interim order in her favour for the grant of termination of pregnancy during the pendency of the writ petition. Her partner refused to marry her, thus, she wanted to terminate the pregnancy as she was non-working, and it would have caused her mental agony by giving birth to a child out of wedlock. But the Delhi High Court refused to grant interim relief as granting interim relief would have amounted to allowing the writ petition itself. Court also stated that it cannot go beyond the statute as the statute only allows termination of pregnancy up to 20 weeks if women do not fall in the special category. An unmarried woman is not specified in the categories of women who are eligible to terminate their pregnancy up to 24 weeks. Therefore, the High Court dismissed the application.   

The petitioner moved the Supreme Court seeking termination of her pregnancy as the Delhi High Court dismissed her application. The Supreme Court adopted a purposive interpretation of the MTP Act, it said that after the 2021 amendment the word “married woman” is substituted with “any woman” and the word “husband” with “partner”, this shows clear intent of the parliament to cover unmarried women also. The court also stated that there is a gap in the law, which means a gap between section 3 of the Act and Rule 3B of the MTP Rules. Section 3 also covers unmarried women, whereas Rule 3B excludes them from the special categories of women (including minors, divorcees, widows, rape and sexual assault victims, disabled women, and mentally ill women). There is no basis to deny unmarried women the right to terminate the pregnancy beyond 20 weeks as the distinction between married and unmarried women does not bear a nexus to the basic purpose and object of the Act sought to be achieved by the parliament. When an unmarried woman is denied the right to terminate her pregnancy it results in the violation of her autonomy and right to live a dignified life. The court also stated that the woman’s right to reproductive choice cannot be separated as it is an inseparable part of her liberty. By considering all the above points the Supreme Court granted an interim order allowing the petitioner to terminate her pregnancy.

In this case, only the Supreme Court suggested how they could bring unmarried women at parity with married women under the Act. The court pointed out that by striking down the words “for the purpose of clause a” from Explanation 1 of section 3(2) of the Act, the termination of the pregnancy on grounds of mental anguish can be made applicable to all.

Rule 3B of the MTP Act is violative of Article 14 insofar as it excludes unmarried women and married women who are neither divorcees nor widows. A woman should not be denied medical termination because the right to safe abortion is part of her personal autonomy.

Why obstruct the way of an unmarried woman who wants the termination of her pregnancy by fixing the period to 20 weeks? This will only cause her more mental agony and trauma because it is not easy for a woman to give birth to a child out of wedlock as the whole society look down on her. Indian society is still not enlightened enough to accept an unmarried woman with a child.

Minor girls and abortion

The need of the hour of the state is to protect the right to safe abortion for minor girls. Mature adolescents especially 16 years above having consensual sex must be kept out of criminal liability. 

The aim of the MTP Act is access to safe abortion but there is a need to bring harmony between provisions of the Protection of Children from Sexual Offences Act,2012 (POCSO) and the MTP, Act. On the one hand, MTP, Act mandates non-disclosure of the identity of the women and on the other hand, POCSO creates a mandate on doctors to report sexual offences committed against minors otherwise they would attract criminal liability. But teenagers who consensually get into sexual relationships must be protected as it affects their mental and physical health which may result in long-term mental health issues, and which would eventually affect their careers and lives. 

These kinds of regulations have led minor pregnant girls to undergo unsafe abortions. The doctors must not get confused between reporting it to the police and conducting medical termination, which means doctors may report it to the police but still can conduct medical termination. POCSO is just making it mandatory to report the sexual assault if takes place with a minor and is not prohibiting the medical termination of pregnancy in such cases.

Moreover, minor girls who are rape victims or want to terminate their pregnancy but whose gestation period is exceeding 24 weeks are not eligible for termination of pregnancy under the MTP Act. This is another drawback of this Act, the only recourse they have is to file a writ petition.

And courts in such cases are allowing medical termination as becoming a mother as a teenager would cause irreparable injury to the mental health of the minor.

Recently, Hon’ble Mr Justice Yashwant Varma in the case of, MS X THROUGH HER LEGAL GUARDIAN v. GOVERNMENT OF NCT OF DELHI & ANR., passed an order allowing a minor sexual assault victim to terminate her pregnancy of 25 weeks. He noted that the Court by invoking extraordinary powers in exceptional cases can allow termination beyond 24 weeks even when the statute does not sanction the same. He further stated “This Court is of the firm opinion that if the petitioner was forced to go through with the pregnancy despite the same having been caused on account of the incident of sexual assault, it would permanently scar her psyche and cause grave and irreparable injury to her mental health. The Court cannot visualize a more egregious invasion of her right to life as guaranteed by Article 21 of the Constitution.” In this case, the medical board did not proceed with the medical termination of pregnancy as the pregnancy was beyond 24 weeks and the MTP Act does not allow the same.

But the court in this case allowed the petition and granted termination of pregnancy to the minor who appeared through her father (her legal guardian). Not allowing the termination of pregnancy to rape victims, especially those who happen to be minors, would not be justified.

Last year in the case of, XXX and Others V. State of Kerala and Others, the Kerala High Court allowed medical termination of pregnancy to a minor girl aged 15, a victim of sexual assault, who was 26 weeks pregnant keeping in mind the various judgments of the Supreme Court where it repeatedly upheld the medical termination of pregnancy where it was found that there existed a threat of grave mental injury to the woman if the child was to be born.

The court also noted that the girl was not at all prepared to deliver the child both mentally as well as physically, therefore, directed the constitution of a medical board. Moreover, the court also directed doctors that if in case the child is born alive despite the attempt at the termination of pregnancy the doctors shall do everything so that he/she develops into a healthy child. And if the family of the petitioner or petitioner is unwilling to take responsibility for the child then the state shall assume full responsibility for the child.

Does making law suffice?

It is obvious that just making a law is not sufficient, yes, it is very much required but it only solves 50% of the problem. What is important is to ensure its implementation. All three organs of the Government must be proactive. Legislature has made the law, now it is the duty of the State Governments and Union territories to ensure the implementation of the law. State Government should be proactive in the implementation of the law so that the beneficiaries can take proper benefit of the law. 

The Government should not make women, who are already vulnerable to abuse, suffer as a result of not implementing laws that exist in their favour and that too by the Governments which are their protectors. Lethargy is not expected from the protector and representative of the people. Moreover, the law must not be ambiguous, it must cover all the possibilities and must be in line with the purpose of the Act for which it is being enacted. The MTP Act has still left many issues unanswered which is why many petitions are being filed in various High Courts and the Supreme Court.

Making a half-baked law does not solve any problem but creates more problems which ultimately results in overburdening of courts with lots and lots of petitions. And the hardship which it causes women is beyond imagination.

Though unmarried women are now included under the Act still they are facing many problems when they approach doctors for termination of pregnancy. The doctors ask them to bring their parents or partner with them for the procedure or even deny the abortion on moral grounds. In September 2020, IndiaSpend reported that abortion remains stigmatised in India, even within the medical fraternity. There is a need to educate doctors also, so they won’t deny termination on moral grounds which ultimately causes women more mental agony. And even the amended law gives the final say to doctors and not women. When you hold a professional position like a doctor, a lawyer, or a judge you must not let your preconceived notions come in the way of your duty, you must perform your functions as the holder of such position as per the constitutional principles.

Moreover, the termination can only be done by Registered Medical Practitioners (RMPs) and in rural areas, there is a 70% shortage of Gynaecologists and Obstetricians. Therefore, women in rural areas are still being denied their reproductive as well as statutory rights provided under the MTP Act. There is a need to develop proper medical infrastructure in rural areas too so that women of rural areas can take benefit from their rights. And also the government must be proactive and spread awareness among the women living in rural areas about their rights under the Act.

Conclusion

There is no doubt that the Medical Termination of Pregnancy Act,1971 and the Medical Termination of Pregnancy Amendment Act,2021 aim for better health and safe abortion for both married and unmarried women and are very much in line with the essential spirit of the Constitution. What is required is its proper implementation by the State Governments and Union Territories by constituting medical boards which is mandatory under the Act and will prevent hardship to pregnant women and increasing petitions in the Court.

 The Act requires expansion in the scope of the term “woman,” so every woman must be allowed to have an abortion. Though the Hon’ble Supreme Court stated that reproductive right is guaranteed to women under Article 21 which is the implied fundamental right of women is still tied to state-sanctioned conditionalities.

The 20 weeks period given to married and unmarried women in case of failure of contraceptive measures taken by her and her partner still creates a barrier to women’s reproductive rights. Only sex-selective abortions should be prevented, and women should be given full autonomy to whether go with the pregnancy or terminate it notwithstanding the period of pregnancy, only then the reproductive rights of women would truly be ensured.

Even if the life of a woman is at risk if she undergoes the procedure of termination of pregnancy, it should be her choice if she is ready to take the risk then no one has any say. They say must be of the woman and not of the doctor. When we go for Scooba diving or sky diving or other such activities for that matter, there we are made to sign a consent form declaring that we are doing such activity at our own risk and no one else will be responsible for the same if something happens to us. When the right to abort is an integral part of a woman’s autonomy why are we giving the reins to the doctors here? It is the woman who shall decide whether to go with the pregnancy or terminate it and no one else.

There is a need to bring a balance between provisions of POCSO and the MTP Act also, to ensure safe abortion and the physical and mental health of teenage girls.


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