MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021

Introduction

Medical termination of pregnancy terminates the pregnancy using non-surgical medical methods usually a drug or a combination of drugs.[1] It is undertaken by experienced professionals and gynaecologists because even though the procedure is minor, there are high risks involved. In the initial months, (7-9 weeks) it can be done using medicines (pills), beyond that, surgical methods are recommended. 

Usually, couples go for termination of pregnancy either in case of unwanted pregnancy, in a condition where continuation of pregnancy can lead to health risks and complications or where the foetus suffers from some grave mental and physical disorders. It is a completely personal choice, but in India, there is a statute responsible to regulate the process.

The main law in India governing termination of pregnancy was The Medical Termination of Pregnancy Act 1971 which has been amended to a great extent by The Medical Termination of Pregnancy (Amendment) Act, 2021 along with Sections 312-316 of the Indian Penal Code (IPC).

The Medical Termination of Pregnancy Act, 1971

The 1971 act required the process to be carried out by a “registered medical practitioner” duly trained in gynaecology and obstetrics. The termination of pregnancy under the said act was permissible for a woman with the opinion of one registered medical practitioner if the pregnancy has not exceeded twelve weeks.[2] But if it has surpassed 12 weeks but not 20 weeks, then it can be terminated after an opinion of two medical practitioners if (i) they believe that continuance of the pregnancy would constitute a grave physical or a mental health risk to a pregnant woman which includes pregnancy caused by rape or failure of contraceptives in case of a married couple. This provision does not include unmarried women or[3], (ii) if it is established that the child would suffer from serious physical and mental disabilities after birth.[4]

The pregnancy of a minor woman or a mentally ill woman can only be terminated after the written consent of her legal guardian.[5]  In madras High court, a mother filed a writ petition to terminate the pregnancy of her minor daughter who was a victim of Rape and was 7 weeks pregnant at the time of presentment of the petition. The court, following a medical report, allowed medical termination of pregnancy on the grounds that continuation of the pregnancy will harm the minor girl physically and mentally.[6]

However, in the case of Tapasya Umesh Pisal v. Union of India[7] allowed the petitioner’s plea for the medical termination of pregnancy while she was in 24th week of pregnancy after a 7 member medical board concluded that the foetus suffers from a heart disorder and would require to undergo numerous surgeries having high mortality rate after birth. Similarly, in the case of Mamta Verma v. Union of India[8], the Supreme Court allowed cessation of pregnancy to a woman who was 25 weeks and 1 day into her pregnancy because the foetus was suffering from anencephaly which is untreatable and certain to cause infant’s death during or right after birth.

Similarly, the High Court of Delhi allowed a woman suffering from heart disease who was on anti-coagulant blood thinner since her Mitral Valve Replacement surgery in 2019 which caused various physical and mental disabilities in her 25-week foetus after an opinion by a medical board of AIIMS.[9] The Act was also redundant in the wake of emerging awareness and demand for sexual and reproductive rights. Hence, the act was significantly amended in 2021 which received the presidential assent on 25th March 2021.

A Critical Analysis

In K.S. Puttaswamy v. Union of India[10], the Supreme Court of India held that the “choice to make reproductive choices” and “to abstain from procreating” are the constitutional right of a woman within the ambit of “right to privacy, dignity and bodily autonomy”. The 2021 amendment act is a much-needed progressive reform from the 1971 Act. It introduces many essential changes. The increase in the “upper gestation limit” for termination of pregnancy from twelve to twenty weeks on the opinion of one and till 24 weeks on the opinion of two medical practitioners is in line with medical and technological advancements that facilitate safe abortion even beyond the first trimester. It would contribute to prevent “maternal mortality” to a great extent and achieve Sustainable Development Goals (SDGs) 3.1, 3.7 and 5.6.[11]

However, the amended act has retained the regressive approach to a woman’s bodily autonomy by retaining the provision of the mandate of a medical practitioner. The only grounds where the pregnancy can be terminated is either when “the continuance will cause great physical and mental injury to the pregnant woman” or “there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.” Firstly, these limited grounds ignore other socio-economic factors such as the death of the partner, distort in marital ties or change in socio-cultural status due to which the couple would not be able to provide a satisfactory lifestyle to the child.

CONCLUSION

This grossly reinforces maternity as a norm for women and procreation as an aim of married life and treats abortion as a “state-sponsored exception” instead of one’s right over their body. Secondly, it promotes the idea of ‘ableism’ by equivocally saying that some individuals are socially unproductive and are a burden on their parents since birth. In a broader sense, it says that people with disabilities are more justifiably eliminable than others.[12] The amendment seeks to progressively dignify and destigmatize pregnancies out of wedlock by changing the phrase from “any married woman and her husband” to “any woman and her partner” in case of termination of pregnancy arising out of a failure in contraceptives. However, by inserting the word ‘partner’, it excludes a more vulnerable section of ‘sex workers’ from its ambit.

Author(s) Name: Urvi Gupta (Vivekananda Institute of Professional Studies, GGSIPU)

References:

[1] Handbook on Medical Methods of Abortion to Expand Access to New Technologies for Safe Abortion

[2] The Medical Termination of Pregnancy Act 1971, s. 3(2)(a).

[3] The Medical Termination of Pregnancy Act 1971, s. 3(2)(a).

[4] The Medical Termination of Pregnancy Act 1971, s. 3(2)(b).

[5] The Medical Termination of Pregnancy Act 1971, s. 3(4).

[6] S. Kurshith v. Dean, Chengalpattu Medical College Hospital, 2021 SCC OnLine Mad 697.

[7] (2018) 12 SCC 57.

[8] (2018) 14 SCC 289.

[9] 2021 SCC OnLine Del 2828.

[10] (2017) 10 SCC 1.

[11] ‘India’s amended law makes abortion safer and more accessible’ (World Health Organisation, 13 April 2021) <https://www.who.int/india/news/detail/13-04-2021-india-s-amended-law-makes-abortion-safer-and-more-accessible> accessed 5 October 2021

[12]  Sanya Kumar, Rakshanda Deka, ‘Why the MTP Bill is not progressive enough’ (The Indian Express, 24 March 2021) <https://indianexpress.com/article/opinion/columns/medical-termination-of-pregnancy-bill-passed-7241943/> accessed 5 October 2021

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