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Women across India have been subjected to unruly and unjust treatment when it comes to making life-changing decisions. The primary reason for this archaic treatment of women in India is the patriarchal nature of society. Particularly, this characteristic of the society has given birth to a lot of preposterous, unconscionable; and prejudiced opinions and notions about women, in the minds of society, particularly, men.
The men, whether as fathers or brothers at home or husband in the nuptial home have always taken decisions on behalf of women. Projecting that men are superior has led to a mindset that woman is the property of the man. This dominance of patriarchy has also given birth to problematic issues like that of female foeticide; refusing women the right of choice, nonacceptance of women indulging in premarital sexual intercourse, etc.
A leading example of this prejudice against women is the legislature dealing with abortion laws in India; namely, The Medical Termination of Pregnancy Act, 1971(M.T.P., Act). Until 2019 this 50-year-old legislation had not evolved as per the changing times of the world; and the fast-growing field of medical technologies. However, in January 2020, the Lok Sabha has passed, The Medical Termination of Pregnancy (Amendment) Bill, 2020. This is amendment is a silver lining for women’s reproductive rights ;(as abortion is considered an important aspect of the reproductive health of women).
In this article, I would discuss the law prior to the M.T.P. Act, 1971, the law per se, and the proposed changes in the new amendment bill, 2020.
Law Prior to the M.T.P. Act, 1971
Prior to the M.T.P. Act, 1971 any abortion is done in India otherwise than for saving the mother’s life was considered illegal. This was in conformity with the English law at that time. Abortion was dealt with according to section 312 of Indian Penal Code, 1860; which denoted it as “causing miscarriage” (induced abortion). At that time abortion became illegal regardless of whether or not the fetus had attained the viability; i.e., the capacity to live independently outside the mother’s womb. The offense under section 312 of IPC stated “voluntarily causing miscarriage” which stood for criminal abortion.
Keeping this in view the Code designated causing miscarriage (induced abortion) a serious offense; and made both causing miscarriage “with the consent”; (eg. when saving the life of the mother) or “without the consent”; (eg. criminal abortion) of the women punishable under section 312 and 313 of the Indian Penal Code 1860, respectively. No place was given to the issues of physical and mental health of the women and their freedom of choice. No deliberation was placed on the grounds of physical deformity; or the mental retardation of the unborn child or that the pregnancy could be unwanted.
Medical Termination of Pregnancy Act, 1971
The process of liberalizing the stringent abortion law began in 1964. The Central Family Planning Board of the Government of India, a policy-making body; met on 25th August 1964 and expressed anxiety on the increase in the number of induced abortions under insanitary conditions affecting the health; and life of the women. A committee was formed under the chairmanship of Mr. Shantilal H. Shah to study the legalization of abortion. The committee recommended support on grounds of
- the physical and mental health of the women and their freedom
- possible physical deformity or mental retardation of the unborn child
- possibility of its being unwanted and therefore, unloved
- socio-economic and demographic picture.
The recommendations formulated by the committee were accepted and were enacted under the M.T.P. Act, 1971. The Act particularly deals with the questions of:
- What are the grounds for termination of pregnancy?
- Who are the persons who can carry out the termination process?
- What are the different time bars for termination of pregnancy?
- Who can make the rules and regulations for the same?
Provisions of the M.T.P. Act, 1971
Section 3 of the Medical Termination of Pregnancy Act, 1971 states, when pregnancy can be terminated and by whom.
Section 3(2) particularly states that a pregnancy may be terminated by a registered medical practitioner:
- Where the length of the pregnancy does not exceed twelve weeks, or
- Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks.
In the latter case, the abortion can only take place; if not less than two registered medical practitioners are of opinion; that the continuance of the pregnancy would involve a risk to the life of the pregnant woman (her physical or mental health); or there is a substantial risk that if the child is born; it would suffer from some physical or mental abnormalities leading to seriously handicapped body.
Section 3 (4) of the Act states that, if a minor wants to terminate her pregnancy, written consent from her guardian is required.
The Act also states as explanations to section 3 that abortion can be done by a registered medical practitioner; if the pregnancy is a result of rape or due to failure of any device; or method used by a married couple for the purpose of limiting the number of children.
Women are allowed to terminate an unwanted pregnancy without providing any reason within 12 weeks; and for pregnancy exceeding 20 weeks; women have to get a certificate or recommendation from two certified doctors/medical practitioners.
Shortcomings of the M.T.P. Act, 1971
One of the criticisms of the Medical Termination of Pregnancy Act, 1971 is that; it has a strict time limit of 20 weeks for termination of pregnancy; however, at certain times fetal abnormalities can only be detected in later stages of gestation. The act has failed to keep pace with advances in medical technology; that allows for the removal of a fetus at a relatively advanced state of pregnancy hence; the time bar of 20 weeks only acts as a hindrance and sometimes forces an unwanted pregnancy onto the woman.
In some cases of sexual assault and rape, particularly of minors, it has been seen that doctors are unwilling to provide abortions, irrespective of the gestational stage.
Another issue with the present act is that the consent of two medical practitioners is required. This is challenging particularly in remote and rural areas where many a times a second practitioner is not available.
The Act is also regressive considering that it does not provide freedom to an unmarried woman to terminate an unwanted pregnancy resulting from contraceptive failure; which results in such women being stigmatized by society.
Because of the above reasons’ women have to take cumbersome efforts under the legal course. As a result, women tend to take the illegal and easier method by taking the help of unregistered clinics, etc. In 2015 a study in the India Journal of Medical Ethics noted that 10-13% of maternal deaths in India are due to unsafe abortions. This makes unsafe abortions to be the third-highest cause of maternal deaths in India. (Source)
Proposed Amendments in the M.T.P. Act, 1971
The bill aims at making the whole process of safe and legal abortion easier for women. It also helps unmarried women in seeking an abortion and keeping their privacy intact. In short, the bill aims at the following new developments:
- The amendment bill seeks to increase the upper limit for termination of a pregnancy from 20 weeks to 24 weeks.
- It proposes that the opinion of only one registered medical practitioner (RMP); be required for termination of pregnancy up to 20 weeks of gestation; and opinion of two RMPs be only taken for termination of pregnancy from 20 to 24 weeks.
- It also aims at enhancing the gestational limit from 20 to 24 weeks for ‘special categories’ of women; which includes survivors of rape, victims of incest, and other vulnerable women like differently-abled women and minors.
- For unmarried women, the Bill seeks to relax the condition of contraceptive-failure for seeking an abortion; by changing the present provision of consent required from “only married woman or her husband to “any woman or her partner”.
The amendments will significantly change the abortion laws and shape the laws according to the prevailing times. The proposed amendments ensure the dignity, autonomy, and confidentiality of women. It also upholds the reproductive rights of women. The amendment will also lead to lesser maternal mortality rates as; it allows the mainstream system itself to take care of safe termination of pregnancies and delivering quality medical attention.
This Article is written by Maitrayee Sinha, content writer and legal researcher at Legal Thirst, and a 4th year Law Student, at Amity Law School Delhi, Guru Gobind Singh Indraprasth University.