Medical Termination of Pregnancy (Amendment) Bill, 2020: An overview GS: 2 "EMPOWER IAS"

In news:

• Recently, the Union Cabinet has approved the Medical Termination of Pregnancy (MTP) (Amendment) Bill, 2020.  The bill will amend the Medical Termination of Pregnancy Act, 1971.

 

Amendments proposed 

• Increasing the upper limit of allowing abortion from 20 to 24 weeks of gestation. 
• The requirement of the opinion of only one RMP up to 20 weeks of gestation and that of two RMPs for 20-24 weeks of gestation. 
• Enhancing the upper gestation limit for special categories of women (which would include vulnerable women e.g. differently-abled women as well) from 20 to 24 weeks.
• The upper age limit shall not apply in case of substantial fetal abnormalities as diagnosed by the Medical Board to be constituted afresh under subsequent rules.
• Identity of the women to be concealed, unless a law provides otherwise. 

 

Benefits

• The much wider window of time for women to decide on abortion
• Safeguards for special categories of women
• It can ease the burden on Courts which have to entertain numerous petitions on abortion beyond 20 weeks of gestation.
• Assured confidentiality on the identity of aborting mothers comes as a breather in a society like India where social stigma relating to abortion can wreak havoc in the life of the woman/girl who has undergone an abortion. 

 

Significance

• The proposed reforms in the Abortion regime will provide much wider reproductive rights and bodily autonomy to women.
• This would be a major achievement for the feminist movement in India. 
• This move can also potentially result in much lesser maternal mortality and mortality during an abortion. 
• The proposed law can provide better access to safe and legal abortion services for women on therapeutic, humanitarian, social and eugenic grounds and will conclusively give precedence to the pro-choice proponents over the pro-life. 

 

What is the need for the Amendment?

• Currently, women seeking to terminate the pregnancy beyond 20 weeks have to face the cumbersome legal recourse. This denies the reproductive rights of women (as abortion is considered an important aspect of the reproductive health of women).

• Obstetricians argue that this has also spurred a cottage industry (kind of informal industry) of places providing unsafe abortion services, even leading to the death of the mother.
• As a result, a 2015 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.

• According to Section 3 (2) of the MTP Act, 1971 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 this case, the abortion will 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 were born, it would suffer from some physical or mental abnormalities to be seriously handicapped.

• This delays the decision-making process for termination of pregnancy.
• One of the criticisms of the MTP Act, 1971 was that it failed to keep pace with advances in medical technology that allow for the removal of a foetus at a relatively advanced state of pregnancy.
• The original law states that, if a minor wants to terminate her pregnancy, written consent from the guardian is required. The proposed law has excluded this provision.
• Thereby, the extension of limit would ease the process for these women, allowing the mainstream system itself to take care of them, delivering quality medical attention.

 

Salient features of proposed amendments:

• Proposing requirement for opinion of one provider for termination of pregnancy, up to 20 weeks of gestation and introducing the requirement of opinion of two providers for termination of pregnancy of 20-24 weeks of gestation.
• Enhancing 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 ‘vulnerable women including survivors of rape, victims of incest and other vulnerable women (like differently-abled women, Minors) etc.

• Upper gestation limit not to apply in cases of substantial foetal abnormalities diagnosed by Medical Board. The composition, functions and other details of Medical Board to be prescribed subsequently in Rules under the Act.
• Name and other particulars of a woman whose pregnancy has been terminated shall not be revealed except to a person authorised in any law for the time being in force.

 

What are the issues with the current law?

• Several issues arise from the current framework under the MTP Act.
• First-Lac of autonomy of women: At all stages of the pregnancy, the healthcare providers, rather than the women seeking an abortion, have the final say on whether the abortion can be carried out.
• It is true that factors such as failure of contraceptives or grave injury are not required to be proved under the MTP Act.
• However, to get the pregnancy terminated solely based on her will, the woman may be compelled to lie or plead with the doctor.
• Thus, at present, pregnant women lack autonomy in making the decision to terminate their pregnancy and have to bear additional mental stress, as well as the financial burden of getting a doctor’s approval.
• On request abortion in 67 countries: Indian’s law is unlike the abortion laws in 67 countries, including Iceland, France, Canada, South Africa and Uruguay, where a woman can get an abortion ‘on request’ with or without a specific gestational limit (which is usually 12 weeks).
• Second-Prejudice against unmarried women: The MTP Act embodies a clear prejudice against unmarried women.
• According to ‘Explanation 2’ provided under Section 3(2) of the Act, where a pregnancy occurs due to failure of any birth control device or method used by any “married woman or her husband”, the anguish caused is presumed to constitute a “grave injury” to the mental health of the pregnant woman.
• While the applicability of this provision to unmarried women is contested, there is always the danger of a more restrictive interpretation, especially when the final decision rests with the doctor and not the woman herself.
• Third-Restriction of 20 weeks’ limit: Due to advancements in science, foetal abnormalities can now be detected even after 20 weeks.
• Danger to mother’s life only condition after 20 weeks: The MTP Act presently allows abortion post 20 weeks only where it is necessary to save the life of the mother.
• Problem with this restriction: The above restriction means that even if a substantial foetal abnormality is detected and the mother doesn’t want to bear life-long caregiving responsibilities and the mental agony associated with it, the law gives her no recourse unless there is a prospect of her death.

 

Background

• The Ministry of Health and Family Welfare proposed the amendments in the termination of pregnancy bill after extensive consultation with various stakeholders and several ministries. The move aims to increases the access of women to safe abortion services, taking into account the advances made in medical technology.
• Recently, several petitions were submitted to the Courts, seeking permission for aborting pregnancies at a gestational age beyond the current permissible limit on grounds of foetal abnormalities or pregnancies due to sexual violence faced by women.

 

How the decision to abort should be taken?

• The question of abortion needs to be decided on the basis of human rights, the principles of solid science, and in step with advancements in technology.
• A key aspect of the legality governing abortions has always been the ‘viability’ of the foetus.
• In human gestation, ‘viability’ indicates the period from which a foetus is capable of living outside the womb.
• There is no uniform gestational viability for abortion. It’s usually placed at about 28 weeks but may occur earlier, even at 24 weeks.
• As technology improves, with infrastructure upgradation, and with skilful professionals driving medical care, this ‘viability’ naturally improves.

 

Conclusion

• Though Medical Termination of Pregnancy (Amendment) Bill, 2020 is a step in the right direction, the government needs to ensure that all norms and standardised protocols in clinical practice to facilitate abortions are followed in health care institutions across the country. Along with that, the question of abortion needs to be decided on the basis of human rights, the principles of solid science, and in step with advancements in technology.’