Abortion has been legal in India in restricted situations since the Medical Termination of Pregnancy (MTP) Act of 1971, which established an exemption from the criminality of abortion under the Indian Penal Code, 1860.The Medical Termination of Pregnancy Act (MTP Act) of 1971 was very significant legislation in India. MTP Act of 1971 removed gender discrimination & stopped malpractices of abortion in favor of the well­being of pregnant women. Under the 1971 Act, termination of pregnancy was not legally authorized beyond 20 weeks of gestation, causing considerable grief to women, emphasizing the necessity to raise the maximum limit for termination of pregnancy. The MTP Act, 2021, has come as a refreshing break, expanding the time limit for legal abortions to 24 weeks for specific categories of women and lifting the threshold for abortion in the occurrence of severe foetal abnormalities.

Significantly, India is the first country to implement a law that offers women and their partners the right to a paid leave after a loss or stillbirth, followed by New Zealand in 2021. More precisely, the Maternity Benefit (Amendment) Act, 1961, expands maternity leave to six weeks of paid leave. Even now, countries such as the UK, United States of America, Brazil, and Germany do not allow as much liberty to a pregnant woman as does India.[i]

What is the Need for the Amendment?

The MTP Act as an exemption to Section 312 of the Penal Code, 1860[ii] (“IPC”), which criminalises the act of “voluntarily causing a woman with child to miscarry” except for the purpose of it being carried out in good faith to save the life of the mother”. The MPT Act not decriminalizes medical termination of pregnancy but states specific permissible grounds under which a woman can undergo a medical termination. Under these specified and permissible grounds, a woman can undergo a termination unless the Court dismisses.

The MTP Act of 1971 establishes a gestational limit for abortion at 20 weeks, beyond which abortions may only be done, without a court judgment to the contrary, when the pregnant person’s life is endangered. Even within this restriction, physicians are often afraid to conduct abortions for fear of being investigated and prosecuted.[iii]

Pratigya Campaign for Gender Equality and Safe Abortion has launched a report assessing the judiciary’s role in access to safe abortion in India in 2019. The study finds that 194 writ petitions have been filed at the Supreme Court and High Courts over the last three years, seeking permission to terminate their pregnancies. Out of the 194 petitions, 21 cases went to Supreme Court, while 173 were filed at various High Courts.[iv]

All cases petitioned at the Supreme Court were above 20 weeks of gestation, five of which were rape cases and 15 involved cases of foetal abnormalities. The Supreme Court denied five cases and permitted 15 MTP requests. Among the five cases dismissed by the court, three involved foetal abnormalities, where each case had a foetus between 26-28 weeks gestation. Out of the 173 cases before the High Courts in India, MTPs were permitted in 139 cases and denied in 29 cases; the remaining were withdrawn.[v]

Speaking at the launch of the report, Mr. V.S Chandrashekar, Pratigya Campaign Advisory Group Member, and Chief Executive Officer, Foundation for Reproductive Health Services India, said, “The study clearly shows that women with pregnancies even below 20 weeks gestation are going to the court to seek permission for MTP. These cases clearly defy the provisions of the MTP Act and represent major problems in the access to abortion.”[vi]

Section 5 of the Medical Termination of Pregnancy (MTP) Act of 1971 stated that if a pregnancy of more than 20 weeks needed to be terminated, a registered medical practitioner must consider that the termination is required immediately to safeguard the pregnant woman’s life. Due to the legal threshold of 20 weeks for terminating a pregnancy, situations have been reported in which women have travelled overseas or utilized illicit methods to have abortions, putting their health in danger.

Under this Act, a pregnancy may be terminated up to 20 weeks if there is a considerable danger of physical or mental abnormalities in the child, causing the child to be “severely handicapped” if delivered, and/or if the continuation of the pregnancy will have adverse emotional and physical repercussions on the mother.

In 2017, a ten-year-old girl was denied an abortion and forced to continue with her pregnancy because of the risks posed to her and her foetus’ life as she was more than 20 weeks pregnant and therefore not allowed to have an abortion under the MTP Act 1971.[vii]

With the passage of time and advancements in medical technology like as ultrasonography and genomics, the MTP Act of 1971 became out of date and insufficient as a guarantee for the rights of women and their families.

Table: Comparison between MTP Act, 1971 and MTP Amendment Act 2021[viii]

The Medical Termination of Pregnancy (Amendment) Act, 2021& Medical Termination of Pregnancy (Amendment) Rules, 2021

In view of the steady increase in writ petitions seeking termination of pregnancy in cases of severe foetal abnormalities, the Ministry of Health and Family Welfare amended the MTP Act and brought the MTP Act, 2021[ix], which contains significant amendments to the MTP Act of 1971. In line with the Central Government in October 2021 notified the Medical Termination of Pregnancy (Amendment) Rules, 2021 that allows termination of pregnancy up to 24 weeks for certain categories of women.[x]

Key provisions

Increase in gestation periods

The Statements of Objects and Reasons of the Bill states that several Writ Petitions have been filed before the Supreme Court and various High Courts seeking permission to abort pregnancies beyond 20 weeks in the case of foetal abnormalities or pregnancies due to rape faced by women.[xi] Prior to the amendment, abortions performed within 12 weeks after pregnancy required a doctor’s approval, while those performed between 12 and 20 weeks required the approval of two doctors.

The MTP Act of 1971 provides no provision for abortion beyond 20 weeks. However, the amendment now permits abortions to be performed up to 20 weeks with just one doctor’s advice, instead of two, and two doctors’ advice in between 20-24 weeks in exceptional situations. Furthermore, the Act empowers states to determine whether pregnancy may be terminated due to foetal anomalies beyond 24 weeks by establishing State-level Medical Boards. This suggests that for terminating pregnancies due to rape beyond the 24-week limit, there is no change in the procedure; the only remedy is to get approval through a Writ Petition.

Formation & function of Medical Board

The Medical Board will be composed of (i) a gynaecologist, (ii) a paediatrician, (iii) a radiologist or sonologist, and (iv) other members, as may be specified by the state government.

According to the Rule 3-A of Medical Termination of Pregnancy (Amendment) Rules, 2021

• a state-level medical board will be set up to decide if pregnancy may be terminated after 24 weeks in cases of foetal malformation and if the foetal malformation has a substantial risk of it being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped.
• The function of the Medical Board shall be to examine the woman and her reports if she approaches for medical termination of pregnancy and provide the opinion with regard to the termination of pregnancy or rejection of a request for termination within three days of receiving the request.
• The Board has also been tasked to ensure that the termination procedure, when advised by it, is carried out with all safety precautions along with appropriate counselling within five days of the receipt of the request for medical termination of pregnancy.

Eligibility for termination of pregnancy

Under Rule 3-B of the Medical Termination of Pregnancy (Amendment) Rules, 2021, the following categories of women are eligible for termination of pregnancy up to 24 Weeks:

1. Survivors of sexual assault or rape or incest;
2. Minors;
3. Change of marital status during the ongoing pregnancy (widowhood and divorce);
4. Women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];
5. Mentally ill women, including mental retardation;
6. The foetal malformation has a substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and
7. Women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the government.

Pregnancies outside of traditional marriages are recognized

Further, the Amendment Act proposed to alter the Explanation to Section 3 (2) by changing the word “married woman” to replace it with “any woman” and by amending the term “husband” to replace it with the term “partner”. This proposed change may be viewed as being progressive and liberal since it stops the statutory prejudice against unmarried women and includes all women and their partners, irrespective of marital status between them, to fall within the implied exemption provided by the section.

Confidentiality clause

Under section 5A of the Act, the identity and other particulars of the woman whose pregnancy is terminated must not be disclosed, except to a person authorized under any law in effect; and any person acting in violation of this section will be penalized with imprisonment for up to a year, a fine, or both.

Registered medical practitioner

MTP Rule 4, 2021[xii] clarified who should be the Registered Medical Practitioner. A Registered Medical Practitioner shall have the following experience and training for conducting termination of pregnancy up to nine weeks of gestation period by medical methods of abortion, namely:-

1. experience at any hospital for a period of not less than three months in the practice of obstetrics and gynaecology; or
2. has independently performed ten cases of pregnancy termination by medical methods of abortion under the supervision of a Registered Medical Practitioner in a hospital established or maintained, or a training institute approved for this purpose, by the Government.”.

The drawback of MTP 2021

• Despite the laudable object of the Act, the main drawback of MTP 2021 is it fails to give complete autonomy to women. Section 3 of the MTP Act still demands the opinion of a doctor. The decision to take the call to choose for abortion is not exclusively in the hands of the woman and her husband. This suggests that even if a pregnant woman wishes to choose an abortion, her permission is inadequate unless accompanied by the consent of a medical practitioner. By keeping the option for the medical practitioner’s view, the MTP Act keeps its overall conservative statutory attitude on the issue of reproductive autonomy of women. In S. Puttaswamy v. Union of India,[xiii] a nine-judge panel of the Supreme Court found that the right to privacy preserves the rights of people to assert control over fundamental aspects of their lives, including in issues pertaining to contraception and conception. In Suchita Srivastava vs Chandigarh Administration,[xiv] where the Apex Court stated that-“a woman’s freedom to make reproductive choices is likewise a dimension of personal liberty as under Article 21 of the Constitution.”
• The MTP Act allows “pregnant women” to terminate pregnancies under certain conditions. However, some studies suggest that a transgender person (and not a woman) can become pregnant after receiving hormone therapy. As the Act only addresses the termination of pregnancies for women, it is uncertain if it will include transgender people.[xv]

Conclusion:

It is admirable that the Central Government has taken such a strong stance while balancing our country’s many cultures, customs, and ideologies. With the hope that this Act will be on the right track, addressing women’s concerns more forcefully than ever before. Apart from legal changes, numerous socio-cultural components of India have stigmatized the issue of reproductive health in general. While gradual legal improvements are unlikely to revolutionize abortion awareness, they will undoubtedly offer an enabling legal framework within which women may seek the enforcement of their rights. With the passage of the MTP Amendment Act, India would be able to join the progressive club of countries that recognize women’s right to make autonomous choices about their pregnancies. Although it falls short of ensuring women’s unrestricted control over their own bodies, the MTP (Amendment) Act, 2021 is unquestionably a step in the right way.

By- Sahid Ahamed

Student Editor, LawDIKTAT

[i]‘New Zealand’s Miscarriage Leave Is a Few Decades Behind India’s Maternity Benefit Act’ <https://www.thebetterindia.com/251881/how-to-apply-miscarriage-leave-india-maternity-benefit-act-policy-stillbirth-women-hr-new-zealand-parliament-legislature-information-vid01/> accessed 28 November 2021

[ii]Ministry of Home Affairs, Government of India. The Indian Penal Code, 1860. New Delhi: MoHA; 1860 [cited 2021 Feb 22]. Available from: https://ncib.in/pdf/indian-penal-code.pdf

[iii]Alka Barua and others, ‘The MTP 2020 Amendment Bill: Anti-Rights Subjectivity’ (2020) 28 Sexual and Reproductive Health Matters 1795447 <https://doi.org/10.1080/26410397.2020.1795447> accessed 28 November 2021.

[iv]Anubha Rastogi & Raunaq Chandrashekar, ‘Assessing the Judiciary’s Role in Access to Safe Abortion An Analysis of Supreme Court and High Court Judgements in India from June 2016-April 2019’ (Pratigya Campaign for Gender Equality and Safe Abortion) <https://pratigyacampaign.org/wp-content/uploads/2019/09/women-going-to-courts-under-20-weeks-gestation-with-mtp-request-finds-pratigya-campaign-study.pdf>.

[v]ibid.

[vi]ibid.

[vii]‘Abortion Not Possible for 10-Year-Old Rape Victim: PGI-Chandigarh Doctors’ (Hindustan Times, 24 July 2017) <https://www.hindustantimes.com/punjab/abortion-not-possible-for-10-year-old-rape-victim-pgi-chandigarh-doctors/story-za9obOnUf6OnS2QXITGLBO.html> accessed 28 November 2021.

[viii] ‘The Medical Termination of Pregnancy (Amendment) Bill, 2020’ (PRS Legislative Research) <https://prsindia.org/billtrack/the-medical-termination-of-pregnancy-amendment-bill-2020> accessed 28 November 2021.

[ix] Ministry of Law and Justice, Govt of India.. The Medical Termination of Pregnancy (Amendment) Act 2021, no 8 of 2021. The Gazette of India. CG-DL-E-26032021-226130. March 25, 2021.

[x]Anadi Tiwari, ‘Medical Termination of Pregnancy Act: Centre Notifies Rules Allowing Abortion up to 24 Weeks of Pregnancy’ (Bar and Bench – Indian Legal news) <https://www.barandbench.com/news/medical-termination-of-pregnancy-act-centre-notifies-rules-allowing-abortion-up-to-24-weeks-of-pregnancy> accessed 28 November 2021.

[xi]Statement of Objects and Reasons, Medication Termination of Pregnancy (Amendment) Bill, 2020.

[xii]Rule 4(ca),  Medical Termination of Pregnancy (Amendment) Rules, 2021.

[xiii] Justice K.S.Puttaswamy (Retired). vs Union of India And Ors, (2017) 10 SCC 1.

[xiv] Suchita Srivastava and Another vs. Chandigarh Administration, AIR 2010 SC 235.

[xv] ‘The Medical Termination of Pregnancy (Amendment) Bill, 2020’ (n 8).