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Issues with the MTP bill "EMPOWER IAS"

Issues with the MTP bill "EMPOWER IAS"

Issues with the MTP bill

 

In news:

  • The article highlights key changes the Medical Termination of Pregnancy (Amendment) Bill, 2021 seeks to make in the 1971 Act and also deals with the issues with some of these changes.

 

Key Points

Provisions:

    • Termination due to Failure of Contraceptive Method or Device:
      • Under the Act, a pregnancy may be terminated up to 20 weeks by a married woman in the case of failure of contraceptive method or device. The Bill allows unmarried women to also terminate a pregnancy for this reason.
    • Opinion Needed for Termination of Pregnancy:
  • Opinion of one registered medical practitioner (instead of two or more) for termination of pregnancy up to 20 weeks of gestation .
  • Gestation is the foetal development period from the time of conception until birth.
  • Opinion of two registered medical practitioners for termination of pregnancy of 20-24 weeks of gestation.
  • Opinion of the State-level medical board is essential for a pregnancy to be terminated after 24 weeks in case of substantial foetal abnormalities.
  • Medical Boards:
    • Every state government is required to constitute a Medical Board.
    • These Medical Boards will consist of the following members: (i) a gynaecologist, (ii) a paediatrician, (iii) a radiologist or sonologist, and (iv) any other number of members, as may be notified by the state government.
  • Upper Gestation Limit for Special Categories:
  • It enhances the upper gestation limit from 20 to 24 weeks for special categories of women which will be defined in the amendments to the MTP Rules and would include survivors of rape, victims of incest and other vulnerable women (like differently-abled women, minors) etc.

Confidentiality:

  • The “name and other particulars of a woman whose pregnancy has been terminated shall not be revealed”, except to a person authorised in any law that is currently in force.

 

Benefits:

  •  

Termination in Case of Anomaly:

  • A number of foetus abnormalities are detected after the 20th week, often turning a wanted pregnancy into an unwanted one.

Helps Special Category Women:

  • The law will help the rape victims, ill and under-age women to terminate the unwanted pregnancy lawfully.

 

Beneficial for Unmarried Women:

  • The Bill also applies to unmarried women and therefore, relaxes one of the regressive clauses of the 1971 Act, i.e., single women couldn’t cite contraceptive failure as a reason for seeking an abortion.
  • Allowing unmarried women to medically terminate pregnancies and a provision to protect the privacy of the person seeking an abortion will bestow reproductive rights to the women.

 

Challenges:

  •  
  • Viability of the Foetus:
  • A key aspect of the legality governing abortions has always been the ‘viability’ of the foetus.
  • Viability implies the period from which a foetus is capable of living outside the womb.
  • As technology improves, with infrastructure up-gradation, and with skilful professionals driving medical care, this ‘viability’ naturally improves.
  • Currently, viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.
  • Thus, late termination of pregnancy may get in conflict with the viability of the foetus.

 

Preference for a Male Child:

    •  
  • The preference for a male child keeps sex determination centres in business in spite of their illegal status. There are concerns that a more liberal abortion law can aggravate this state-of-affairs.

 

Change of Choice:

  • The current Bill does not consider factors such as personal choice, a sudden change in circumstances (due to separation from or death of a partner), and domestic violence.

 

Medical Boards:

  • The present healthcare budgetary allocation makes setting up a board across the country, both financially and practically impossible.
  • Access to the board by pregnant women in remote areas of the state is a matter of concern.
  • No time limit set to respond to the requests.
  • The board will subject women to multiple examinations before allowing her to terminate her pregnancy. This is a violation of right to privacy and right to live with dignity.

 

Key changes

  • The 1971 Act had moral biases against sexual relationships outside marriage, adopts an ableist approach and carries a strong eugenic emphasis.
  • In addition to preventing danger to the life or risk to physical or mental health of the woman, “eugenic grounds” were recognised as a specific category for legally permissible abortions.
  • To deal with these issues the Medical Termination of Pregnancy (Amendment) Bill, 2021 was passed by the parliament.
  • The bill is being hailed for two reasons:
  • First, the bill replaces “any married woman or her husband” with “any woman or her partner” while contemplating termination of pregnancies resulting from contraception failures, thus ostensibly destigmatising pregnancies outside marriage.
  • Second, the time limit within which pregnancies are legally terminable is increased.

 

Issues with the Bill

1) Scope for executive overreach

  • The bill raises the upper gestational limits for the two categories of permissible abortions envisioned in Section 3(2) of the 1971 Act.
  • Limit for the first category in which pregnancies are terminable subject to the opinion of one medical practitioner is raised from 12 weeks to 20 weeks.
  • The limit for the second category in which pregnancies are terminable subject to the opinion of two medical practitioners is raised to include those exceeding 20 but not exceeding 24 weeks, instead of the present category of cases exceeding 12 but not exceeding 20 weeks.
  • However, the second category is left ambiguous and open to potential executive overreach insofar as it may be further narrowed down by rules made by the executive.

 

2) Rejection of the bodily autonomy of women

  • Pregnancies are allowed to be terminated only where:
    1. Continuance of the pregnancy would “prejudice the life of the pregnant woman.
    2. Or cause grave injury to her mental or physical health
    3. Or “if the child were born it would suffer from any serious physical or mental abnormality.”
  • As such, the bill seeks to cater to women “who need to terminate pregnancy” as against “women who want to terminate pregnancy.”
  •  By not accounting for the right to abortion at will the Bill effectively cripples women’s bodily autonomy.

 

3) Ableist approach

  • A woman’s right to terminate the pregnancy of a child likely to suffer from physical or mental anomalies or one diagnosed with foetal abnormalities, on socio-economic grounds or otherwise, merits recognition.
  • However, in treating “physical or mental disability” or “foetal abnormalities” as separate categories amounting to heightened circumstances for termination of pregnancies, the bill reveals its ableist approach.
  • This evidences a presumption that certain people are by default societally unproductive, undesirable and somehow more justifiably eliminable than others.
  • This ableism becomes stark when the said 24-week limit, which is purportedly dictated by scientific and legislative wisdom, is completely lifted where the termination of a pregnancy involves “substantial foetal abnormalities”.

 

4) Dichotomy in allowing termination beyond 24 weeks

  • When read together with Section 3(2B) of the bill, a strange dichotomy emerges:
    1. It is either the case that medical advancement is such that a safe abortion is possible at any point in the term of pregnancy, and hence, the bill allows it in case of “substantial foetal abnormalities” .
  • Or that, a 24-week ceiling is scientifically essential and abortions beyond the said limit would pose risks to the health of the pregnant woman or the foetus.
  • If it is the former, then allowing termination only in cases of “substantial foetal abnormalities” is a fictitious and moralistic classification.
  • If it is the latter, then the secondary status of women’s safety and the dominant eugenic tenor of the bill once again becomes evident.

 

Need to sensitise healthcare provider

  • Access to abortion facilities is limited not just by legislative barriers but also the fear of judgment from medical practitioners.
  • It is imperative that healthcare providers be sensitised towards being scientific, objective and compassionate in their approach to abortions notwithstanding the woman’s marital status.