This article is written by Seep Gupta, a student currently pursuing B.A. LL.B. (Hons) from the Institute of Law, Jiwaji University. This is an exhaustive article which deals with the Medical Termination of Pregnancy (Amendment) Bill, 2020: A critical analysis.
Table of Contents
Introduction
Yesterday, when I grabbed a newspaper, I saw one horrendous news that I felt terrified after reading it. A 15-year-old minor girl suddenly disappeared from her home and after so many police reports filed by her family members and searching by the police, she was found in a nearby village. Later, after primary investigations, it was later revealed that she was found to be pregnant by one of her distant cousins who repeatedly raped her and induced and threatened her that he would kill her if she would dare to tell this to anyone. She absconded from her home to avoid further shame. The fetus was under 20 weeks so her life was saved by the doctors by terminating her pregnancy in a safe manner. Before 1971, when there was not any provision for legalized abortion, it was very hard to abort a child in a legalized manner under some circumstances.
After the Medical Termination of Pregnancy Act 1971 which legalized the practice of abortion in a safer and convenient manner, it has now relaxed the abortion law. Still, there are many countries in the world with strict and rigid abortion laws. Still, even in today’s times thousand of women die in India every day because of illegal and unsafe abortion practices. Every day 13 women die in India due to unsafe abortion-related practices. These statistics are horrifying. Even after the commencement of the Medical Termination of the Pregnancy Act 1971, there are still a lot of women who are dying because of unsafe abortion practices.
This article will cover the historical aspect and background of the Medical Termination of Pregnancy Act 1971 and the recent amendments in this Act.
Medical Termination of Pregnancy Act, 1971
Historical background of this Act
Before 1971 there was not any legal provision for abortion under the Indian Penal Code 1860. Abortion was highly illegal.
Abortion was criminalized under Section 312 of the Indian Penal Code,1860 According to this section, “Whoever voluntarily tries to cause the miscarriage to a woman except in the good faith or where the woman’s life in danger shall be liable for imprisonment which may extend to three years and shall also be liable to fine”.
Anyone who dared to get an abortion was imprisoned for seven years with additional fine. Many women died because of illegal, unsafe abortion practices in a hidden manner. Abortion was seen as a stigma and in an unethical manner. Abortion was thought to be justified if the woman was suffering from some physical or mental illness, in the possibility of assault or rape, or in case of a stillborn baby.
In India, the Central family planning board of India made a committee named as Shantilal Shah Committee in 1964. It recommended the liberalization of abortion laws to make it more effective and to reduce the unsafe abortions and maternal mortality rates which were associated with illegal abortions. It was made to study and scrutinize why abortion is necessary from the view of moral, ethical, legal, and scientific manner. The Shantilal committee submitted a report which had detailed observations in December 1966. On the recommendation of this committee, in 1969 a medical termination bill was introduced in both the Lok Sabha and Rajya Sabha and was passed by the parliament in 1971.
The Medical Termination of Pregnancy Act was implemented from 1972. The act was further revised in the year 1975 to make it less complicated and more effective. This act was implemented with the view to facilitate safer abortions in a legalized manner in certain circumstances. It provides for the termination of pregnancy by a licensed registered medical practitioner. Its preamble depicts a very clear meaning. It states that “Only a registered medical practitioner has a right for the termination of pregnancy in certain circumstances”.
During the last 30 years, many countries such as Great Britain, Greece and Spain have made abortion laws flexible. There are nowadays very few countries that still have strict and rigid abortion laws. The Medical Termination Act 1971 is considered ahead of its time when it first came into effect.
Important provisions of this Act
Section 2(d) of the Medical Termination of the Pregnancy Act 1971 defines ‘Registered Medical Practitioner’. According to it, ‘a Registered Medical Practitioner’ means any medical practitioner who possesses required medical qualifications which is defined in Section 2 of the Indian Medical Council Act 1956 and whose name has been registered in the state medical register and who possess required medical skills in gynaecology and obstetrics which are prescribed under the said act.
Section 3 of the Medical Termination of the Pregnancy Act 1971 provides that “When pregnancies may be terminated by the registered medical practitioners”.
- A registered medical practitioner should not be guilty of any offence which has been mentioned in the IPC or any other law during the time of the termination of pregnancy by him according to the provisions of the law.
- Where the duration and time of pregnancy have not exceeded more than 12 weeks.
- Where the duration and time of pregnancy have exceeded 12 weeks but not the 20 weeks, in this case by the opinions of the two medical practitioners in good faith.
- The continuation of the pregnancy will be a grave danger for a woman’s physical or mental health.
- When there is anticipation that the child born out of this pregnancy will be prone to detrimental physical and mental health and will be handicapped.
- One important point is to be noted, guardian’s or parent’s written consent is required for terminating the pregnancy of any minor girl or any girl who is above the age of eighteen but is insane or lunatic.
Needs for amending the Medical Termination of Pregnancy Act 1971
- Currently, women who want to terminate their pregnancy beyond 20 weeks require too many legal complications but this bill seeks to amend the legal provisions of termination of pregnancy from 20 weeks to 24 weeks.
- As many women die daily because of unsafe and illegal abortions. This bill seeks to provide safety and protection to pregnant women more safely and conveniently.
- One of the criticisms of the Medical Termination of Pregnancy Act is it failed to keep up with modern technology. As it came in 1971 and that time the technology was not that advanced so it requires an amendment.
- In the Act, it is mentioned that the legal written consent of the guardian is required in case if the girl is a minor or below 18 years of age and above 18 years if the woman is insane or lunatic. The proposed bill seeks to the exclusion of this provision which is mentioned in the Medical Termination of Pregnancy Act 1971.
- This proposed bill will simplify the complicated legal provisions which are given in the current Medical Termination of Pregnancy Act 1971. This will further ease the way for many women for safer termination of pregnancy in a more convenient and effective way.
The Union Cabinet approved the bill in January 2020 under the leadership of Prime Minister Narendra Modi.
Medical Termination of Pregnancy Bill, 2020
Historical Background and overview of the Bill
The Medical Termination of Pregnancy (Amendment) Bill 2020 was introduced in Lok Sabha by the Ministry of Health and Family Welfare, Dr Harshvardhan Goyal on March 2, 2020. The Bill seeks to amend the Medical Termination of Pregnancy Act 1971 which is about safe and legalized abortion. The Bill also seeks to amend certain provisions of the Act.
The Bill also seeks to extend the termination of pregnancy from 20 to 24 weeks, making it easier and convenient for a woman to legally abort the unwanted pregnancy in a safe and secure manner. It also seeks to increase the safety practices, gestation period, and confidentiality of pregnant women.
The ministry of family and health care proposed this bill after seeking advice and consultation from various experts, doctors, consultants, and various ministries. The proposed bill also seeks to make use of advanced medical and healthcare tips and techniques which unfortunately did not exist in 1971. Several Public Interest Litigations were filed for the termination of the pregnancies beyond the period of 20 weeks of gestation period. So, that even the victims of rapes, sexual assaults, and women having physical and mental deformities can medically terminate their pregnancies.
Salient features of the Bill
The Medical Termination of Pregnancy (Amendment) Bill 2020 seeks to include the rape and assault victims, incestuous victims, minor girls, differently-abled girls, and women with fetal deformities. The Medical Termination of Pregnancy (Amendment) Bill 2020 seeks to widen the ambit of the Medical Termination of Pregnancy Act 1971. There are several salient features of the Bill which have been mentioned below.
- It seeks to amend the Medical Termination of Pregnancy Act 1971.
- The Bill seeks to propose the need of one registered medical practitioner instead of two in case of termination of pregnancy with a gestation period of more than 20 weeks. This is given in Section 3(2)(b) of the Medical Termination of Pregnancy Act 1971.
- It introduces a new provision of seeking the advice of two or more registered medical practitioners in case of the termination of pregnancy of the gestation period between 20-24 weeks.
- The Bill seeks to widen the ambit of the MTP Act 1971 and it seeks to include a special category of women that include, differently-abled women, rape survivors, minor girls, and victims of incest.
- This bill also seeks to increase the maximum gestation period for termination of pregnancy from 20 weeks to 24 weeks so that many women can take advantage of it and can successfully terminate their pregnancies which are endangered to their lives.
- The Bill seeks to maintain the secrecy and confidentiality of the women who want to terminate their pregnancies. This is rather a new concept which will protect the identity of women.
- No medical practitioner will reveal the identity of any woman who wants to terminate her pregnancy according to any law in force at that time.
- Conditions in which a woman can medically terminate her pregnancy includes where there is the apprehension of grave endanger to her physical and mental health, in case of fetal deformities, where a woman got pregnant in case of failure of any contraception device, where the woman got pregnant as a result of rape, this can cause serious mental anguish on her mind.
So, these are some of the salient features of the Medical Termination of the Pregnancy (Amendment) Bill 2020.
Various other laws related to abortion in India
There are various other abortion laws in India. Abortion in India is legalized under certain circumstances. It is estimated that approximately 15.6 million take place in India every year. While out of these many unsafe and illegal abortions takes place in India daily which causes the death of the women. Apart from the Medical Termination of Pregnancy Act 1971, there are various strategies and policies by the government and the Ministry of Family and Health Welfare for safer abortion.
Comprehensive Abortion Care-Service Delivery and Training Guidelines 2010– These guidelines provide for all the comprehensive and detailed information regarding abortion. It also involves legal issues associated with it. These guidelines are used by both State Government and Union Territories for comprehensive abortion care of women in India.
CAC Training Package- Ministry of health and family welfare developed a standardized training system and scheme that provides providers, trainers, and operational guidelines on comprehensive abortion care. It was made in 2014 after consultation with all the medical experts for training doctors in all states and union territories.
State Programme Implementation Plans- All states and union territories are required to submit their plans and strategies and policies as a part of the National Health Mission for implementation of health policies at public health facilities. These are being reviewed by the Ministry of Health and Family Welfare and then the budget is being allotted accordingly.
Ensuring safe abortion practices and to stop gender-biased practices and biased sex determination. The Government has introduced MTP 1971 and the Preconception and Prenatal Diagnostic Technique Act, 1994 that makes sex determination of the fetus illegal.
Health Management Information System- It is an initiative by the Ministry of Family and health welfare under the National Health Mission which provides intrinsic details regarding health care services that are offered in the public sector. This Portal is updated regularly.
National Mass Media Campaign- This was launched by the Ministry of Health and family welfare in 2014 to make abortions safer. It was one of its kind first-ever mass media campaigns. It focussed on normalizing the abortions and to adopt safer practices regarding it.
Section 312 of the Indian Penal Code 1860. It also deals with the illegal and forced Abortion. According to this Section, whoever voluntarily causes a woman to miscarry a child except for good faith or where a woman has some physical and mental complications if she continues the pregnancy then the person will be liable for imprisonment which may extend to 3 years and shall also be liable to fine.
Critical analysis
This bill seeks to increase the gestation period required for the abortion from 20 weeks to 24 weeks. With these new provisions, women who have fetal abnormalities which have been detected after the 20th week, now they can also medically terminate their pregnancy. With this increment in the upper gestation limit and this coupled with the advanced medical technologies can now help a woman to have safe and effective abortions.
But, this upper gestation limit for abortion is only for rape survivors, incest victims, and women having serious physical and mental health problems. Thus the Bill still lacks many provisions. Women who do not belong to these special categories mentioned above will require special consent and certain legal complications will be there if she wants to go for abortion.
Abortion is the absolute right of a woman. No woman can be compelled to have an abortion. The reasons for getting an abortion need not be proved under the MTP Act 1971, therefore a woman has to plead before a doctor for getting an abortion. The woman who wants to terminate her pregnancy solely on her will is quite difficult. This 2020 Bill still lacks the complete autonomy of a woman to legally and medically terminate her pregnancy. Because of this, a woman has to be mentally stressed and physically burdened to get the doctor’s consent.
Section 3(2) of The Medical Termination of Pregnancy Act 1971 provides that a woman can go for abortion in case of the failure of any contraceptive device by either a married man or a married woman. This section is prejudicial to unmarried women. However, The recent amendment Bill 2020 on this also fails to amend this provision.
The MTP Bill 2020 is a step in the right direction, however, it fails to reduce the stigma against unmarried women. Also, it does not allow abortion at any time of pregnancy.
However, the bill does not provide for the upper gestation limit for having an abortion in case of fetal abnormalities. In the past, one had to pass through complicated legal recourse and cumbersome process for getting an abortion.
Therefore, we can say that the Bill is up to par with new and advanced medical techniques. However, it still lacks many provisions.
Conclusion
The Medical Termination of the Pregnancy Bill 2020 is a new ray of light for women who wants to practice safe abortions and for those who want to legally terminate their pregnancies. However, India has to go a long way to reduce and eradicate the practice of unsafe abortions. The failure and success of MTP Bill 2020 depend on the strategies and policies that are used to implement the guidelines given in it. If these guidelines will be implemented with the proper care and precautions, then it can act as a boon for women who want to go for abortion.
References
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