- The Medical Termination of Pregnancy MTP (Amendment) Bill 2020 Continues to ignore Pregnant person’s rights.
- Recently, The Medical Termination of Pregnancy MTP (Amendment) Bill 2020 passed in the upper house by voice vote.
- The bill seeks to amend the MTP Act, 1971. It provides for enhancing the upper gestation limit from 20 to 24 weeks for special categories of women but does not specify the category.
- Although the MTP Amendment Bill does expand the gestational cap in some cases, it falls well short of becoming rights-based legislation.
- Objections raised in the Upper House
- Lack of consultation with stakeholders.
- Lack of inclusion of transgender people within the MTP framework.
- Moreover, there is a lack of emphasis on women’s autonomy in pregnancy.
- Medical boards would be a breach of privacy. It would cause excessive delays in access to abortion due to a shortage of specialists.
- The time limit for decision-making by the medical board is missing. Moreover, the women’s representation is unclear.
- Issues in the proposed Medical Termination of Pregnancy (Amendment) Bill, 2020
- Lack of consultation with civil society and grassroots organizations. This is an example of drafting and enacting laws without consultation with the people who are most affected. The Recent Farm Bill, 2020 is a prime example of this.
- The provision still restricts abortion to a heteronormative framework. Only cisgender women are considered in it, and not persons with other gender identities.
- Under the heteronormative framework, it is a belief that there are only 2 two sexual orientations and genders i.e. male and female.
- Cisgender is the person, who identifies herself with the sex at the time of birth. The person who undergoes gender change is not a cisgender.
- Issues with setting up of Medical Boards – The MPT bill mandates the setup of a Medical Board in every state. The Medical Boards require giving opinions based on the facts regarding the termination of pregnancies.
- This could cause severe delays in the abortion process.
- Pregnant women living in rural areas in large parts of the country could find these Medical Boards inaccessible.
- The bill retains the hetero-patriarchal population control legacy. The bill continues with the lack of control to the women, of their reproductive and sexual rights. Abortion will be subject to doctor approval. This is in direct contrast with the Supreme Court’s precedent on reproductive autonomy and bodily integrity.
- The Bill’s provisions continue to criminalize abortion. It will promote negative stereotypes and stigma surrounding reproduction, sexuality, and motherhood.
What is the Medical Termination of Pregnancy (MTP) Act 1971?
- The Act defines the conditions on which the termination of pregnancy can be made, and the qualified persons to perform the same. The Act aims to reduce the maternal mortality ratio due to unsafe abortions in India.
- The act allows a woman to terminate her pregnancy within the first 12 weeks of pregnancy. After consulting an RMP (registered medical practitioner) woman can terminate her pregnancy.
- If the women want to terminate her pregnancy between 12-20 weeks, she needs to get an opinion from 2 RMPs. The Medical practitioners have to ascertain that continuance of the pregnancy would risk the life of the pregnant woman or substantial risk (Physical or mental abnormalities) to the child if it is born.
Need for the Amendment:
- First, the present abortion law is five decades old. The law permits abortion up to a maximum foetal gestation period of 20 weeks only. This denies reproductive rights to women. (Abortion is one of the important aspects of women’s reproductive health).
- Second, currently, if a woman wants to terminate the pregnancy beyond 20 weeks, she has to follow legal procedure. The slow judicial process in India force woman to take illegal means to terminate the pregnancy. India Journal of Medical Ethics report in 2015 mentioned unsafe abortions were leading to 10-13% of maternal deaths in India. This makes unsafe abortions as the third-highest cause of maternal death.
- Third, the advancement of science. After the 20th week, many foetal abnormalities can be detected using techniques like Ultrasonography. As the current law limit the time to 20 weeks, it can cause trouble to the mother as well as children in the near future. Hence, its extension is much needed.
- Fourth, International practice: 52 % of global countries including the UK, Ethiopia, Austria, Spain, Italy, France allow termination of pregnancy beyond 20 weeks if there are any foetal abnormalities. 23 countries including Germany, Canada, Vietnam allow termination of pregnancy at any time based on the request of the mother.
Salient provisions of MTP Amendment Bill 2020:
- First, the Bill extends the upper limit for permitting abortions from the current 20 weeks to 24 under special circumstances. This is applicable to a “special category of women”. Victims of abuse, rape survivors, the differently-abled, and minors fall under this category.
- Second, the Bill proposes the requirement of the opinion of one registered medical practitioner (RMP) for termination of pregnancy up to 20 weeks of gestation.
- Third, the Bill provides for two RMPs opinions for termination of pregnancy between 20 and 24 weeks.
- Fourth, Bill constitutes a Medical Board. Every state government has to constitute a medical board. These medical boards will diagnose pregnant women for substantial foetal abnormalities. If any such substantial foetal abnormalities get detected then the termination of pregnancy can be done even after 24 weeks of gestation (no upper limit for the termination of pregnency in this case).
The Medical Boards will consist of the following members:
- a gynecologist,
- a pediatrician,
- a radiologist or sonologist,
- any other number of members, as may be notified by the state government.
- Fifth, Bill protects the privacy of a woman. No RMP can reveal the name and other particulars of a woman who performs the abortion. However, RMP can reveal the identity to a person authorised by law. The violation of this provision is punishable with imprisonment up to one year, or a fine, or both.
Advantages of the proposed Bill:
- First, the Bill raises the foetal gestation period for termination of pregnancy beyond 20 weeks. The MTP Bill also includes a special category of women. In short, the bill enables access to safe abortion and curb illegal abortion practices.
- Second, the 1971 MTP Act states that, if a minor wants to terminate her pregnancy, the guardian has to provide written consent. The proposed bill has excluded this provision.
- Third, the Bill will strengthen the reproductive rights of women. The Supreme Court in Mrs X v. Union of India, 2017 case has recognised women’s right to make reproductive choices and their decision to abort as a dimension of their personal liberty. The court also mentioned abortion primarily fall within the Right to Privacy.
- Fourth, the Bill will reduce the burden on the Judiciary. At present, there are many cases registered in court seeking permission for abortion beyond 20 weeks. Meanwhile, with the establishment of the Medical Board, the burden on the judiciary will reduce.
What are the challenges associated with the present Bill?
- First, the constitution of the Medical board. The constitution of the medical board presents a variety of challenges such as
- The present healthcare budgetary allocation (1.5% of GDP) makes setting up a board across the country, both financially and practically impossible.
- Apart from that, even if it is set up, access to the board by pregnant women in remote areas of the state is a matter of concern.
- No time limit is set for the board to respond to the requests.
- The board subject women to multiple examinations before allowing her to terminate her pregnancy. This is a violation of rights to privacy and dignity.
- Personal beliefs could impact the medical board’s opinion. For example, Madhya Pradesh High Court denied terminating the pregnancy of 13-year-old rape survivor only because a psychiatrist on the medical board had not supported her abortion.
- Second, the amendments continue the patriarchal population control legacy. The bill does not give women control over their own bodies. It requires the medical practitioner’s opinion and not the request or will of pregnant women alone.
- Third, the current bill does not consider a few important things in the termination of pregnancy. Such as personal choice, a sudden change in circumstances (due to separation from or death of a partner), and domestic violence.
- Fourth, the amendment also fails to consider the abortion rights of intersex, transgender, and gender diverse persons.