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On March 17, 2020, the Lok Sabha passed The Medical Termination of Pregnancy (Amendment) Bill, 2020. The Statements of Objects and Reasons of the Bill state that several cases were filed in the Supreme Court and various High Courts, regarding abortion of pregnancies beyond the 20-week permissible limit.
This article analyses abortion law in India as it stands today and the changes which will be introduced by the passing of the Amendment Bill. It also delves into some challenges that the Bill has been unable to address.
Also read: Explained: Surrogacy (Regulation) Bill, 2019
Abortion Law In India
The Medical Termination of Pregnancy Act, 1971 allows for abortion on four occasions. Firstly, where the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health.
Secondly, where there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Thirdly, when a pregnancy is alleged to have been caused by rape then, it is presumed to have caused a great mental injury.
Lastly, where the pregnancy is caused by the failure of any contraceptive devices used by a married woman or her husband. The Act imposes an additional requirement of consultation with one doctor for abortion within 12 weeks and consultation with two doctors for abortion within 12-20 weeks. Beyond 20 weeks, termination of pregnancy is only allowed if in the doctor’s opinion, it is necessary to save the life of the woman.
This Act has been criticised on several grounds. One major concern was regarding the unfairness of an upper limit of 20 weeks, as most foetal abnormalities are detected after the expiration of this period.
The Act also did not give due consideration to the fact that in most cases of sex trafficking or rape, unwanted pregnancies are discovered at a later stage. Another concern was regarding the logistical issues faced by women living in rural areas.
There is a dearth of qualified medical practitioners and hence, consultation with more than one doctor becomes a challenge. Furthermore, the Act discriminates on the basis of the marital status of the women.
Under the Act, only married women could make the choice to abort due to failure of contraceptive devices. In light of all of these issues, the legislature introduced The Medical Termination of Pregnancy (Amendment) Bill, 2020.
Changes Introduced By The Bill
In a significant move, the Bill allows for termination of pregnancy up to 20 weeks with advice of only one doctor. Moreover, abortion up to 24 weeks has been legalised for vulnerable categories of women with the additional requirement of consultation with two doctors.
Under the 1971 Act, termination of pregnancy beyond 24 weeks was not allowed. However, the 2020 Amendment Bill sets up State level medical boards to examine cases where termination beyond 24 weeks is necessary due to substantial foetal abnormality.
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A remarkable step towards equality can be witnessed as the Bill replaces the phrase ‘married woman and her husband’ with ‘woman and her partner’, thereby easing the life of unmarried women.
The Bill also gives due regard to privacy and allows a registered medical practitioner to reveal the details of the woman to only people authorised by the law. Violation of this law has been made punishable with imprisonment up to a year, fine, or both.
Key Concerns Raised And Criticisms Of The Bill
Although the Bill has received positive recognition worldwide and is deemed as a progressive step towards empowering women, it is far from ideal. Termination of pregnancy in India is still based on a doctor-centric approach.
Most significantly, the 2020 Bill makes a distinction between the effect on mental health caused by pregnancy due to rape and pregnancy due to failure of contraceptives. The Bill provides that in cases of rape, the doctor ‘shall presume’ detriment to mental health and in cases of failure of contraceptives, the doctor ‘may presume’.
Even though the psychological harm caused to victims of rape cannot be overemphasised, this difference in standard of presumption provides a window to doctors to refuse women who end up with unwanted pregnancies due to failure of contraceptives.
The legislature still seems unable to reconcile with the fact that a woman’s right to reproductive autonomy is covered under Article 21, and this right must be the sole basis to proceed with the choice to terminate a pregnancy.
The Bill also does not take into account the time sensitive nature of a pregnancy and provides no time frame within which the State Medical Board has to make a decision. Any delay may cause more complications for the woman.
Abortion law in India does not specify whether the Act is applicable to transgender women and the 2020 Bill provides no clarity on this matter. Furthermore, the Bill, by virtue of Section 5A seeks to protect the identity of the woman and penalises disclosure of identity to unauthorized persons with one-year imprisonment.
In this regard it may be argued that the provision overstates the repercussions of revealing the identity and gives in to the social abhorrence towards abortion.
The Medical Termination of Pregnancy (Amendment) Bill, 2020 is a step in the right direction. However, it leaves a lot to be desired. The Bill introduces an unreasonable classification between women even though medical research points towards the conclusion that there is no difference whether a pregnancy is terminated at 20 weeks or 28 weeks.
A woman’s right to make reproductive choices falls within personal liberty under Article 21 as held in the case of Suchita Srivastava v. State (UT of Chandigarh), (2009) 9 SCC 1. This position was reiterated in the case of K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1.
Abortion laws in any country rely on one fundamental question – when does life begin? The answer to this question depends on a variety of factors which differ from culture to culture.
India is a secular country and our Supreme Court has time and again divorced itself from religious or moral beliefs. There has arisen a need for legislators to keep in mind that laws must be framed on the basis of constitutional morality rather than social morality.
Author: Aditi Soni from Chanakya National Law University (CNLU), Patna, India.
Editor: Astha Garg, Junior Editor, LexLife India.