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Abortion and the right to choice: Is MTP (Amendment) Bill 2021 a breakthrough for India?

·5 min read
woman in white t-shirt holding placard with my body my choice lettering while covering face on pink
woman in white t-shirt holding placard with my body my choice lettering while covering face on pink

Rajya Sabha recently passed a bill to allow abortions of up to 24 weeks for special categories of women, up from the existing 20 weeks gestation period. 

Under the Medical Termination of Pregnancy (Amendment) Bill 2021, which amends the Medical Termination of Pregnancy Act, 1971, special categories of women, including victims of incest, rape victims, minors and differently-abled women, will be allowed to undergo abortion till 24 weeks.

Today, more than ever, a woman’s control over her body and her reproductive rights, is being recognised.  

However, India has one of the highest maternal mortality rates in the world – the MMR per 100,000 live births is 35,000. A large percentage of the deaths (37.6 per cent) are due to unsafe abortions.

A study published in the medical journal, The Lancet revealed that 15.6 million abortions were carried out in India in 2015. Out of these, around 3·4 million abortions (22 per cent) were done in health facilities, 11·5 million (73 per cent) abortions were done outside of health facilities, using medicines, while 0·8 million (5 per cent) abortions were done using methods other than medication, and outside of health facilities.

The pandemic has made the situation worse. 

A report by global non-profit, Marie Stopes International, has said that disruptions due to services brought on by last year’s lockdown may lead to 1 million additional unsafe abortions. As many as 1.3 million women in India lost access to contraceptives and safe abortion during the pandemic. 

MTP (Amendment) Bill 2021: History and features

Abortion was criminalised in 1860 under section 312 of the Indian Penal Code. Unless carried out to save the life of a woman, the practice of abortion was punishable with the person assisting the woman to abort liable to three years of prison and/or a fine, and the woman herself liable to seven years in prison and/or a fine.

Discussions surrounding abortion started around the 1960s when a large number of pregnancy terminations that were taking place under unsafe conditions, brought on the need for a legal framework.

The Medical Termination of Pregnancy Act was passed in August 1971, based on guidelines provided by the Shah Committee, led by Shantilal Shah. The Act provided a legal framework for conducting termination of pregnancy of up to 20 weeks.

The Medical Termination of Pregnancy (Amendment) Bill 2021 goes a step further towards providing access to safe and legal avenues of abortion. This was brought on by the large number of petitions that had been filed requesting for a relaxation to the upper limit on grounds of foetal abnormalities, or in cases of sexual violence.

  • The Medical Termination of Pregnancy (Amendment) Bill increases the upper gestation limit from 20 weeks to 24 weeks for special categories of women.

  • For termination up to 20 weeks, the Bill requires the opinion of one doctor and for termination of pregnancy between 20-24 weeks, it needs the opinion of two doctors.

  • Both married and unmarried women may terminate pregnancy up to 20 weeks if termination is due to the failure of a contraceptive method or device. This is a departure from the old provision which allowed only married women and their husbands to avail of MTP.

  • All states and union territories will constitute a Medical Board with a gynaecologist, paediatrician, radiologist/sonologist and other members as notified by the Government.

  • In case a pregnancy has exceeded 24 weeks, advice from a Medical Board will be required in case of substantial foetal abnormality.

  • The Bill focuses on confidentiality and medical practitioners will only be allowed to reveal details of the woman whose pregnancy has been terminated, to a person authorised by law.

The provisions of amending the term married woman and her husband to include a 'woman and her partner,’ along with the failure of contraceptives being considered as grounds for abortion, has been hailed as among the most progressive parts of the Act.

Awareness, implementation lacking

When it comes to reproductive rights, India has its laws in place. Especially considering the fact that a majority of the world's women (more than 40% of women of reproductive age) live in 125 countries where abortion is highly restricted, either illegal or allowed only to save a woman's health.

However, what is lacking is awareness and implementation. This is in the case of abortions, which are planned terminations, and miscarriage, which happens naturally, both of which are extremely traumatising. 

The New Zealand parliament, led by Prime Minister Jacinda Arden, recently became one of the few to approve legislation that will allow women and their partners to take three days of paid leaves in case of miscarriage.

While the move is being hailed as progressive, the fact is that India already has such a legal mandate. As per the Maternity Benefit Act 1961, a woman is entitled to paid leave for six weeks after a miscarriage. Further, if an illness arises, women are also entitled to one month’s paid leave, on submission of relevant medical proofs.

However, many are not aware of such a provision. Further, even if they are aware, many women do not avail of it for fear of the professional repercussions it may have. 

Awareness and recognition of a woman's inherent right to her reproductive choices are the need of the hour. Even with the amended Act, women are not entitled to consider an abortion if she is unable to provide a valid reason for it. This is primarily because of the high female foeticide rates prevalent in the country.

According to a report by the United Nations Population Fund (UNFPA), India accounts for 45.8 million of the world's missing females. The term 'missing females' denote the women missing from the population due to postnatal and prenatal sex selection. 

However, health experts state that most abortions happen in the first trimester when the gender of the foetus is not yet clear, hence, rendering the fear baseless. 

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