Induced abortion has been legal in India for a broad range of reasons since the passage of The Medical Termination of Pregnancy Act, 1971 by the Parliament in 1972. The key objective of this Act is to improve maternal health of Indian women and to regulate the mortality rate of women due to unsafe and illegal abortion. It further specifies the conditions under which a pregnancy may be aborted. It was only after the enactment of this Act, safe abortion was available to women under certain prescribed conditions. The Act shields ‘her’ from various dangerous complications if at all the pregnancy turns out to be critical, or in cases of unwanted pregnancies. It also gives her the constrained right to make a choice for herself, to abort the baby at certain circumstances to ensure her own health, life and safety a priority. In order to amend the MTP Act of 1971, the Union Cabinet had sanctioned the Medical Termination of Pregnancy (Amendment) Bill, 2020. The proposed Bill was passed by the Lok Sabha on March 17, 2020 and is yet to receive affirmation from the Rajya Sabha before it is made an Act.
THE MEDICAL TERMINATION OF PREGNANCY ACT OF 1972
WHEN CAN A PREGNANCY BE TERMINATED?
Under the MTP Act, 1971, abortion is a qualified right, but the procedure is to be performed only with the opinion formed in good faith by one registered medical practitioner for up to 12 weeks of pregnancy and for an abortion beyond 12 weeks and up-to 20 weeks, the opinion of two medical practitioners is required. Any pregnancy can be terminated only on the grounds that its continuation would pose a considerable risk to the woman’s life or her physical or mental health. Or if at all the pregnancy is caused by rape or if the foetus is suffering from either physical or mental abnormalities, or if the pregnancy is due to the failure of contraceptives in married women, the pregnancy can be aborted subject to the conditions laid down. The MTP Guidelines of 2003 put forth the conditions and methodology for actualizing the Act.
WHO CAN TERMINATE THE PREGNANCY?
Only a Registered Medical Practitioner (or RMP), who has a recognised medical qualification as defined under clause (b) of Section 2 of Indian Medical Counsel Act and he/she who is in possession of the requisite training experience as per the MTP Rules, 2003, is allowed to terminate the pregnancy.
WHERE CAN THE PREGNANCY BE TERMINATED?
Hospitals established or maintained by the government or any place approved by the government or DLC (District Level Committee) constituted by the government for this very purpose, are regarded as valid centres for termination of the pregnancy.
Section 5 of the Act allows for abortion after twenty weeks of gestation, only to save the life of the pregnant woman. The courts have given this ground quite a generous interpretation which might be said to incorporate the mother’s psychological well-being too.
This Act mighty much rooted for the upliftment of women. But, slowly with increase in the number of centres, new glitches began emerging. The Act was then amended in the year 2002, on December 18.
The essential features of the amended Act include:
- The amended act replaced the word ‘lunatic’ in the principal act with the word ‘mentally ill person’ which covers a wide variety of mental diseases.
- The recognition for the place carrying out the termination of pregnancy was changed to the district level rather than the state capital. This has aided in reducing procedural delays.
- The punishment provisions are incorporated in the Act to ensure effective implementation and to avoid dependence on IPC. Any person, being the owner of the place which is not approved under Section 4(b) of the Act shall be imprisoned for a period of 2 to 7 years.
THE PATH TOWARDS THE 2020 AMENDMENT BILL
If women were to approach the doctors for the termination of her pregnancy beyond a period of 20 weeks, she was left with no option, but to appeal to the courts and run from pillar to post, seeking permission to terminate the pregnancy. The late detection of such pregnancies is quite common and may be attributed to a variety of reasons such as the later detection of abnormalities in the foetus, or the shame and stigma associated with calling out a rape.
Furthermore, the MTP Act of 1971 embodies in itself a clear prejudice against unmarried women as ‘Explanation 2’ under Section 3(2) of the Act allows for only a married women to seek abortion in case of contraceptive failures. So, an unmarried pregnant woman cannot legally claim for abortion, unless the cause of such pregnancy is rape. This leads to a situation where they are either to go for an illegal abortion or they will be forced to carry the pregnancy. This is neither good for the mother or for the baby. It is thus evident that the MTP legislation was leaning towards discriminating the rights of women.
The tests directed during the pregnancy for finding any abnormalities in baby include: (a) the Double Marker Test between 10 to 13 weeks, (b) the Triple Marker Test between 18 to 20 weeks, and (c) the Anomaly Scan for 20 weeks. The majority of these tests are carried out during the twentieth week of pregnancy, for appropriate conclusion and diagnosis. After thorough analysis, the required line of treatment is given to try and cure the anomalies in the feotus while in the womb itself. But the outcome is not positive and certain in all cases. Thus, in certain cases, the women are forced to carry the womb unwillingly.
In real time, the struggle began from the case of Dr Nikhil D Datar v. Union of India & Ors. The 20th week sonography of Dr Nikhil D Datar’s “Patient X” showed her foetus to be normal. However, in the 22nd week, the gynaecologist found that the foetus had a congenital complete heart block, which would lead to a poor quality of life and the same could prove to be fatal. As this was not discovered until the 22nd week of her pregnancy, she sought permission to terminate the pregnancy from the Bombay High Court. The Court refused to allow an abortion and Mrs. Mehta was forced to continue with her pregnancy. As a result she had a miscarriage after months of anguish and suffering, which was ultimately a risk to her own personal health and safety. Realising that Section 3(2) of MTP Act 1971 isn’t pertinent in real life and practically not applicable in certain cases where abortion is actually needed for the mother, Dr Datar filed a special leave petition before the Supreme Court to appeal the decision.
Since then, there have been hundreds of women who have knocked on the doors of the court seeking help. To name a few, the cases of Amita Kujur v. State of Chhattisgarh & Ors., Mrs. X & Ors v. Union of India & Ors, Sarmishtha Chakraborty & Anr. v. Union of India & Ors and several others were taken up by the Supreme Court, the Delhi High Court, the Chhattisgarh High Court and the Bombay High Court.
On August 4, 2017, the MTP Amendment Bill was introduced in the Rajya Sabha. It was intended to increase the abortion period from 20 weeks to 24 weeks. In January 2018, the MTP Bill was introduced in the Lok Sabha with the same intention, in addition to which it was also proposed to increase the abortion period to 27 weeks in the case of rape survivors. On April 24, 2019, the Madras High Court issued a notice to the Centre and the State to seek their response in extending the period for termination of pregnancy stating an urgent situation. On 26th May a public interest litigation was filed in the Delhi High Court by Amit Shani to raise the limit from 20 to 24 weeks and the court issued a notice to the Centre asking for extending the time period by 4 to 6 weeks. On 29th May, 2019 another public interest litigation was filed by three women, Swathi Agarwal, Garima Sekseria and Prachi Vats challenging Section 5 of the Act which prohibits the termination of pregnancy beyond 20 weeks. All of this sought the attention of the government and resulted in the MTP Amendment Bill of 2020.
KEY FEATURES OF THE MTP (AMENDMENT) BILL, 2020
- The amendment presently takes into consideration pregnancies to be terminated, with the consent of one registered medical practitioners (RMP), when the pregnancy is within 12 to 20 weeks and the consent of two clinical practitioners will be required for the termination of pregnancy within 20 to 24 weeks.
- In the Bill, a new and separate classification of women, who may opt for an abortion at 24 weeks and beyond, has been made. Provided,
- any abnormalities in the foetus have been detected during the 24th week, or
- the pregnancy is a result of ‘incest’ (meaning a sexual relationship with family members or close relatives), or
- the woman is differently abled, or
- the woman is a minor as per the Indian Majority Act of 1875, and
- If the women is a rape survivor.
- The Bill also accommodates for the constitution of a Medical Board that will look into the requirement for the termination of pregnancy once the upper limit of 24 weeks has passed. This Board shall comprise of medical specialists, namely a gynaecologist, a sinologist and a radiologist.
- The Bill includes a secrecy clause which makes it a culpable offence for revealing the identity of any women whose pregnancy has been terminated. No registered medical practitioner is thus allowed to reveal the name and other particulars of the said patient.
The Bill inter alia seeks to put an unmarried woman and her accomplice at par with that of a wedded woman and her partner, while approaching medical termination of pregnancy due to contraceptive failure. This acknowledgement of a woman’s sexual agency, be it through a marriage or a live-in relationship, will encourage better access to safer abortion facilities as this paves the way for the slow fading of the stigma attached to it.
Due to unavailability of medical practitioners in many rural areas, the opinion of two doctors is quite difficult to avail. Thus the reduction in opinion providers to ‘one for termination until 20 weeks’ will lead to an increase in the number of clinics that can aid second trimester abortions. This liberalisation may also aid in bringing down the overall maternal mortality rate in the country.
In some cases, if by chance some abnormalities like a ‘crania’ (when the head in itself is not formed) is detected and the mother is already in the twentieth week of gestation, the existing law does not allow for termination of pregnancy. Given the advancements in the medical field, the stretch of 24 weeks opens a bigger window for termination of pregnancy. Also, an ideal time for cardiac scan of the foetal heart to detect any cardiac abnormalities is after 23 weeks, but due to the abortion laws in the country, it is usually done at the period between 18 to 20 weeks. The proposed amendment however allows for more time by providing a window of four more weeks. This is guaranteed to provide the doctor and the patient a much needed breathing space.
THE FLAWED PIECES:
While the MTP Bill, 2020 is a step in the right direction, it still fails to address most of the problems with the MPT Act of 1971. With development in medical science, which includes abortion pills and vacuum aspiration which allow for safer abortions in advanced stages of pregnancy, these see no legal resonance in the Bill.
The amendment although does allow abortion upto 12 weeks upon the woman’s request, there arises a necessity that it must be proved that it was due to the failure of contraceptive or that it was an unplanned pregnancy. This thereby curtails the women of her right to choice.
The Amendment further enhances the gestation limit for legal abortion from 20 to 24 weeks only for specific categories of women such as survivors of rape, victims of incest and minors. This would plainly mean that a woman who does not fall into any of these categories will not be able to seek an abortion beyond 20 weeks, even if she suffers from grave physical or mental injury due to the pregnancy. This is definitely to be addressed by the judiciary.
Indeed, even within the 24-week time frame, a woman can just look for the reasons of abortion set out in the law and not on her demand or request as prevalent in countries like Singapore or Netherlands. The amendment bill thus fails to draw motivation from the 2017 landmark decision in the Puttaswamy Judgment ,where the court while repeatedly defining how privacy and autonomy are interlinked, described autonomy as “the ability to exercise free choice and ability to have ‘control over the body’ by consenting to, or denying medical procedure you may be subject to”. Although the Supreme Court in Mrs X v. Union of India and K.S Puttaswamy v. Union of India has recognised the women’s right to reproductive choice and her decision of abortion as a fundamental right to privacy and personal liberty, the bill is yet to permit the women to exercise ‘her’ right.
Abortion rights should be given to every woman and her interest must be protected. To force a woman to continue an unwanted pregnancy is not only an attack on her personal autonomy but it also infringes her sense of right to privacy, bodily integrity and religious liberty. Laws that force a woman to bear children not only rob her of bodily integrity but also make women, as a class, involuntary servants to foetuses. Although there are some hitches in the Medical Termination of Pregnancy (Amendment) Bill of 2020, it is yet a progressive piece of legislation in the right direction, with promises that stand to benefit the ‘sheroes’ of Indian society at large.
 Medical Termination of Pregnancy Act, 1971, § 5(1), No. 34, Acts of Parliament, 1971 (India).
 Medical Termination of Pregnancy Act, 1971, § 3, No. 34, Acts of Parliament, 1971 (India).
The Medical Termination of Pregnancy Rules, 2003 (India).
 Medical Termination of Pregnancy Amendment Act, 2002, § 4, No. 64, Acts of Parliament, 2002 (India).
 Ms X and Ors. v. Union of India and Ors., WP (C) No. 81 of 2017 (India).
 Medical Termination of Pregnancy Amendment Act, 2002, § 2(a), No. 64, Acts of Parliament, 2002 (India).
 Id at 4.
 Medical Termination of Pregnancy Amendment Act, 2002, § 5(Explanation), No. 64, Acts of Parliament, 2002 (India).
Pyali Chatterjee, Medical Termination of Pregnancy Act: A Boon or a Bane for a Woman in India – A Critical Analysis, 5(8), IJSR 236, 236-240 (2016).
 Id at 9.
 Dr Nikhil D.Datar v. Union of India& Ors., 2008 (110) BomLR 3293(India).
Amita Kujur v. State of Chhattisgarh & Ors., WP (C) No. 976 of 2016 (India).
 Id at 5.
 Sarmishtha Chakraborty & Anr. v. Union of India & Ors., WP (C) No. 431 of 2017 (India).
Rohan Gupta, Abortion in India: Experts call for changes, DOWN TO EARTH, (Aug. 27, 2019), https://www.downtoearth.org.in/news/health/abortion-in-india-experts-call-for-changes-66369.
 Id at 15.
 Id at 15.
 The Medical Termination of Pregnancy (Amendment) Bill 2020, Clause 3, No. 55 of 2020 (India).
 The Medical Termination of Pregnancy (Amendment) Bill 2020, Clause 3 (med termination), No. 55 of 2020 (India).
 The Medical Termination of Pregnancy (Amendment) Bill 2020, Clause 3, (2C), (2D), No. 55 of 2020 (India).
 The Medical Termination of Pregnancy (Amendment) Bill 2020, Clause 4, No. 55 of 2020 (India).
 Foetal echocardiogram, SOGI SCAN, https://www.sogiscan.com.au/service/fetal-echocardiograph/.
 Id at 19.
 W. Gardner Selby, Six countries allow abortions after 20 weeks of gestation and many countries permit them under certain circumstances, THE POLITIFACT (Oct. 4, 2013) https://www.politifact.com/factchecks/2013/oct/04/anita-perry/six-countries-allow-abortions-after-20-weeks-gesta/.
 Justice K.S. Puttasamy (Retd.) v. Union of India, (2019) 1 SCC 1 (India).
Santhiya P, The Medical Termination Of Pregnancy (Amendment) Bill, 2020 – An Analysis, Ex Gratia Law Journal, (December 1, 2020), https://exgratialawjournal.in/journal/volume-1/vol1-issue3-dec2020/the-medical-termination-of-pregnancy-amendment-bill-2020-an-analysis-by-santhiya-p/.