Abstract
The article reviews the legislative changes to the Medical Termination of Pregnancy Act 1971. It first provides background to the construction of the Act and proceeds to enumerate the various changes it has undergone. The author then elaborates upon the transformation and metamorphosis the Act has undergone to offer a critique of its various changes over the years. The critique questions the reason for such changes, especially concerning the condition under which abortion can be awarded post-twenty-four weeks. It later questions the relaxation of conditions in general due to the evident occurrence of female feticide. Furthermore, it discusses the qualms of the legislation concerning the medical board, specifically regarding a time frame for decision-making. The article proposes plausible solutions for every issue raised therein and concludes by reaching vital points and raising further questions.
Introduction
Legislation in India with respect to reproductive rights for women has been considered progressive for its time and the Stateâs condition. It has limited the taboo surrounding the medical termination of pregnancy by relaxing the conditions for abortion. However, are all forms of this liberalization adequate measures for the well-being of both the mother and the child? Do the provisions added to provide this liberalization account for all possible situations and circumstances? Do the resources and existing legislation of the country align with the new legislation?
Background of the Medical Termination of Pregnancy Act
Indian law, particularly Sections 312 to 316 of the Indian Penal Code,[1] protects the unborn childâs right to life by criminalizing abortion. Section 312, in particular, states that if someone âcauses a woman with child to miscarry shall if such miscarriage is not caused in good faith to save the life of the woman, be punishedâ.[2] It further explains that the woman administering the abortion herself is also liable for this crime. The law supra echoes that the foetus has a right to life. We can observe this right to life throughout the evolution of The Medical Termination of Pregnancy Act 1971,[3] juxtaposed with the motherâs right to health, free reproductive choice, personal liberty, privacy, and bodily autonomy. The question held throughout the history of this Act is determining whose right takes precedence under what conditions.
Some Changes Surrounding the Act Since 1971
Throughout the evolution of the Medical Termination of Pregnancy Act 1971, we can observe an evident relaxation of the conditions under which pregnancy can be medically terminated. Initially, solely married women were provided relief. This aspect has since changed in the 2021 version of the Act. The gestation period for the commission of abortion was formerly twenty weeks strictly.[4] This gestation period has since changed to twenty-four weeks under the circumstances of rape and beyond twenty-four weeks if substantial foetal abnormalities are present.[5] Only a medical board grants the approval if abortion is sought post-twenty-four weeks.[6] Another amendment enacted was the change in punishment for breach of the confidentiality of a woman, which previously only was a fine of âš1000; it now, however, entails a fine decided by the judge and imprisonment.[7]
The Language Surrounding Foetal Abnormalities
The relaxation of these laws seems to carry a progressive intent but are the relaxations applied on the right levers? The law states in the Medical Termination of Pregnancy (Amendment) Act, 2021, amendment 3 (2B), that âThe provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Boardâ.[8] Here, an extension on the access to abortion is allowed post-twenty-four weeks on the condition that the unborn possesses significant abnormalities, which is determined by a medical board.[9] This allows the inference that the unborn child with substantial abnormalities is less deserving of life than one without substantial abnormalities.
The potential for effective treatment of the person born, the probable degree of self-awareness and communication ability, the suffering that the person would experience, and the probability of the ability to live alone are some of the criteria evaluated before making the call to abort the foetus by the medical board.[10] However well thought out and comprehensive, these criteria do not justify violating the fundamental right to equality. Here the application of the right to life awarded under Article 21 of the Indian constitution[11] is discriminately applied, and it reveals the thought process of the legislature.
The logical evolution of such thought is the belief that the life of persons with substantial disabilities is inherently less valuable relative to those without such disabilities. Should relaxing the conditions under which abortion can be obtained in this manner which solely allows foetuses with substantial abnormalities, be allowed? This question seems to have been answered by the legislature in the amendment in 2021. Here, the State is encouraging the population to perceive that those with abnormalities are liabilities; it is effectively deciding what type of life should and should not exist. This is exceedingly concerning because, as we speak, the predominant reason for seeking abortion in the High Courts has now become substantial foetal abnormalities, according to Pratigyaâs analysis of High Court judgements (2019-2020). The reason for this selective abortion seems to be stemming from Section 3 (2B) of The Medical Termination of Pregnancy (Amendment) Act, 2021.[12]
The lawmakers involved in this process must determine the motivations behind enacting such legislation. Such evaluation is necessary to check if the legislators understand the implications. The lawmakers here are playing God, deciding what kind of person deserves membership in the company of life itself. Such legislation not only sets a dangerous precedent but also actively decides the fate of particular kinds of human life. This is discriminatory and handing the lawmakers power that should only ideally be wielded by nature. The State here is encouraging a thought process similar to the ideas espoused by the eugenics movement, whose growth started in the late 1800s when conversations surrounding improving the human were coming about in the Western world.[13]
A solution to the breach of the right to equality for the unborn with substantial foetal abnormalities is to allow the medical board to decide on cases of all kinds of foetuses, whether they possess substantial abnormality or not. The legislation could also go the other way by scrapping the entire provision for abortion post-twenty-four weeks, thus eliminating the condition where those with substantial abnormalities are discriminated against.
Concern about Female Foeticide
One of the primary reasons for the Medical Termination of Pregnancy Act (1971) amending itself to become more relaxed was due to the 800,000 unsafe abortions that occur in India every year.[14] The argument is that due to the inaccessibility of abortion, women are forced to adopt illegal methods of abortion, which are often unsafe, with about 10% of unsafe abortions in India resulting in maternal mortality. This data is a fundamental reason for the liberalization of conditions.
However, this liberalization must always be kept in the backdrop of female foeticide. This mere increase in the liberalization of the Medical Termination of Pregnancy (Amendment) Act, 2021 is not necessarily adequate legislation. An estimated 6.8 million fewer female births will be recorded across India by 2030 because of the ongoing use of selective abortion.[15] This act of female feticide persists after measures such as the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (1994).[16]
The solution to eradicating this ailment is to identify areas of the Indian population where such practices of sex selection are prevalent. Some such areas would be Punjab, Haryana and Jammu and Kashmir, where the child sex ratio of boys per girl is 118, 120 and 116, respectively.[17] After identifying these areas and spotting the relevant cultural motivations, the grassroots level of education on the evils of this act, with the stricter implementation of existing legislation and further legislation enacted to prevent the act, could potentially resolve the issue.
Medical Board Qualms
Another critical question that arises is if the medical board has adequate provisions. The amended Act does not specify a time limit for the board to conclude. This lack of a time span for decision-making puts the mother with a growing child in a precarious position.[18] This requirement of a medical board with various specialists is needless. These specialists, such as gynaecologists, paediatricians, radiologists, sonologists and whomever the State deems fit being required as part of the medical board is impractical, considering that most people who have problems seeking an abortion tend to live in areas of India where there is a paucity of doctors, let alone specialists. It puts regulation in the way of a pregnant woman seeking relief. This wait of the mother for permission is not only degrading the motherâs dignity but also depriving the life of a human that has gone through further stages of development.[19] This over-regulation is forcing women to go to the Supreme Court predominantly for the termination of foetuses with substantial abnormalities. It can be seen, according to a Pratigya Campaign Study, that between September 2016 and 2019, respectively, 71.4% of all writ petitions seeking for medical termination of pregnancy were due to substantial foetal abnormalities.[20]
A solution for the medical boardâs lack of a time limit is quite obviously placing a time limit in such a manner that does not ask the mother and foetus to wait for too long and ensures adequate time for the board to decide. Quashing the provision in its entirety would also solve the problem of a mother and her unborn child being in the supra-mentioned precarious position.
Conclusion
In conclusion, the legislation in India concerning abortion must review its acts on abortion of the unborn with substantial abnormalities; it must regulate factors such that it makes the environment infertile for female foeticide and rethink the composition, practicality and functionality of the medical board. The legislators involved must realize that mere relaxation does not entail progress; instead, it is relaxation on the right fronts and by the right amounts that inculcates progress. They must specifically review the statute that elaborates upon substantial foetal abnormalities because it does not define the term in a concrete fashion; this lack of definition forces too much dependence on the medical board (which is not the disseminator of justice). It also forces the judiciary to rely on foreign positions when unsatisfied with the opinion of the medical board. This can be seen when Justice Prathiba M. Singh âtook assistance from the statutes of the United Kingdom, Northern Ireland and Florida, USAâ[21] as she overruled the medical boardâs opinion, allowing a 26-year-old woman to avail abortion at 33 weeks of pregnancy. The legislators must also keep in mind while relaxing conditions to obtain an abortion that the problem of female foeticide in India persists; they must come up with further measures to ensure that society is enlightened to such a degree that selective abortions based on sex are not a reason to prevent awarding rights to women. These levers on which relaxations have been placed need to be questioned time and again so long as such acts and amendments come into being.
This article is a part of the DNLU-SLJ (Online) series, for submissions click here.
[1] The Indian Penal Code 1860, s 316
[2] The Indian Penal Code 1860, s 312
[3] The Medical Termination of Pregnancy Act 1971, s 3
[4] The Medical Termination of Pregnancy Act 1971, s 3
[5] The Medical Termination of Pregnancy (Amendment) Act 2021, s 3
[6] Shivani Deshmukh, âA Comprehensive History of Abortion Laws in India: 1971-2021â (Feminism in India, 13 July 2022) <https://feminisminindia.com/2022/07/13/a-comprehensive-history-of-abortion-laws-in-india-1971-2021/> accessed 19 January 2023
[7] The Medical Termination of Pregnancy (Amendment) Act 2021, s 4
[8] The Medical Termination of Pregnancy (Amendment) Act 2021, s 3
[9] Shradha Thapliyal, âAbortion Jurisprudence in the Supreme Court of India: Is it the womanâs choice at all?â (Centre for Law and Policy Research,8 February 2019) <https://rb.gy/o0hf8 > accessed 19 January 2023
[10] Royal College of Obstetricians and Gynaecologists, âTermination of Pregnancy for Fetal Abnormality in England, Scotland and Walesâ (Royal College of Obstetricians and Gynaecologists, 18 May 2010) <https://www.rcog.org.uk/media/21lfvl0e/terminationpregnancyreport18may2010.pdf> accessed 14 April 2023
[11] The Constitution of India 1950, Art 21
[12] Pratigya, âPratigya Campaignâs statement on Medical Termination of Pregnancy (MTP) Act amendmentsâ, (Pratigya,18 March 2021) < https://pratigyacampaign.org/wp-content/uploads/2021/03/pratigya-campaigns-statement-on-medical-termination-of-pregnancy-mtp-act-amendments-pdf.pdf> accessed 12 April 2023
[13] Philip K. Wilson, âeugenicsâ, (Britannica, 20 July 1998) <https://www.britannica.com/science/eugenics-genetics> accessed 11 April 2023
[14] Centre for Reproductive Rights, âCenterâs New Factsheet Explains Recent Changes to the Abortion Law in Indiaâ (Centre for Reproductive Rights,27 September 2022) < https://reproductiverights.org/india-abortion-law-mtp-amendment-factsheet/> accessed 14 April 2023
[15] Amrit Dhillon, âSelective abortion in India could lead to 6.8m fewer girls being born by 2030â (The Guardian,21 August 2020) <https://www.theguardian.com/global-development/2020/aug/21/selective-abortion-in-india-could-lead-to-68m-fewer-girls-being-born-by-2030> accessed 19 January 2023
[16] Ambika Gupta, âA Critical Analysis of the Shortcomings under the MTP (Amendment) Act, 2021â (2021) 1(1) VULJ <https://vulj.vupune.ac.in/archives/8.pdf> accessed 19 January 2023
[17] J. Samal, âThe unabated female feticide is leading to bride crisis and bride trade in Indiaâ (2016) 5(2) JFMPC <https://journals.lww.com/jfmpc/Fulltext/2016/05020/The_unabated_female_feticide_is_leading_to_bride.65.aspx> accessed 11 April 2023
[18] Jurisedge, âTHE MTP (AMENDMENT) ACT 2021: A CRITICAL APPRAISALâ (Jurisedge,16 April 2023), <https://jurisedge.com/academy/2022/04/16/the-mtp-amendment-act-2021-a-critical-appraisal/> accessed 12 April 2023
[19] Sansad TV, âBills: An Insight | Medical Termination of Pregnancy (Amendment) Act, 2021â (Sansad TV,23 November 2021), <https://www.youtube.com/watch?v=RR1RY9pM1gI&t=837s> accessed 11 April 2023
[20] Pratigya, âWomen going to courts under 20 weeks gestation with MTP request, finds Pratigya Campaign Studyâ (Pratigya,28 September 2019) <https://pratigyacampaign.org/wp-content/uploads/2019/09/women-going-to-courts-under-20-weeks-gestation-with-mtp-request-finds-pratigya-campaign-study.pdf> accessed 12 April 2023
[21] Sofi Ahsan, âWhat Constitutes Substantial Foetal Abnormalities Under Medical Termination Of Pregnancy Act? Delhi High Court Explainsâ (LiveLaw,6 December 2022) <https://www.livelaw.in/know-the-law/what-constitutes-substantial-foetal-abnormalities-under-medical-termination-of-pregnancy-act-215956> accessed 14 April 2023
Students at National University of Advanced Legal Studies, Kochi