Abstract– As we come closer to new Termination Of Pregnancy Act (MTP Act) 2020, a look at the MTP act 1971 can help us understand the importance of abortion laws in relation to women’s reproductive rights better. Unsafe abortions claim many lives in India even with such strong legislation. Can the MTP Bill 2020 with its increase time limit help women access and enjoy their reproductive rights better or will old challenges hijack this upcoming act Act.
ABORTION LAW IN INDIA– Abortion laws in India were present since the colonial rule. The Indian Penal code 1860 which is the basic law in the country made induced abortion a criminal offence under Section 312 to 316 of the code. Under Section 312, a person who aids and facilitates a miscarriage was liable for the abetment of punishment. Section 312 also makes it clear that the offender could be the women herself. A case registered as early as 1886, a woman was charged for causing herself to miscarry though she was pregnant only for a month. The lower court acquitted her however the higher court emphasised that it is the duty of the mother to protect the infant from the very moment of conception (GAUR, 1991). The provisions clearly indicate that there is lot of importance given to the right to life of the foetus. The only condition under which abortion was allowed was when there is a threat to mother’s life. Unborn child must not be destroyed unless mother’s life is under threat. Abortion laws prior to the enactment of Medical Termination of Pregnancy Act 1971 were very strict.
Due to stringent abortion laws there was a huge rise in illegal abortions in India. An estimated five million induced operations were carried out in India out of which at least three million were illegal. Guar , states that difficulties that resulted in lack of prosecutions and successful convictions, has been the obtaining of adequate evidence to prove the fact of pregnancy and its termination in court and also the non-cognisable nature of offences related to illegal abortions. However a change in the stringent law came during the 1960s when Government of India mooted for a liberalised law under Central Planning Board of India. There was a concern towards high rise in abortions in health Ministry and unprecedented high rise in population concerned the government. Thereafter a Committee was set under the chairmanship of Shanti Lai Shah to look into the questions of liberalised Abortion Laws.
A comprehensive report came which recommended that liberalisation of outdated law contained in Section 312 of the code. It also viewed that termination of pregnancy should not be allowed only to save the life of women, but be allowed to protect the women from physical injuries as well as mental health illness. The Government of India accepted the recommendations and came forward with Medical Termination of Pregnancy Act 1971 which set forth various situations under which pregnancy can be terminated legally. The objectives of the Act was firstly to control the illegal abortions in the country, secondly to give woman the right to decide about her own body and limit pregnancy if she wishes and lastly to control the unprecedented population growth by allowing abortion on grounds of failed contraception.
MEDICAL TERMINATION OF PREGNANCY ACT 1971 overrides the IPC by allowing abortion when it below 12 weeks with the permission of one medical practitioner and in case 12-20 weeks, the permission of two practitioners is required. Abortion is allowed if continuance of pregnancy would risk the woman’s life, can cause grave injuries to her mental and physical health (Example pregnancy caused by rape or contraception failure of married couples) and substantial physical and mental foetal abnormalities in the unborn child. As this liberalised Abortion law is set to complete more than four decades in India. I in this article would like to analyse the backlashes put forward against the Act and also question if Amendment can be of any good idea.
IMPORTANT BACKLASHES AGAINST MEDICAL TERMINATION OF PREGNACY ACT 1971
NARROW WINDOW FOR GENETIC ABNORMALITIES- The famous Haresh and Nikita Mehta plea to abort their 26 week foetus with congenital heart defect made headlines in 2008, as the Bombay High Court did not grant the plea to abort. This was one of the first cases that forced the court to see the flawed aspect of MTP Act. Similarly in July 2017 a Kolkata woman was allowed to terminate 26 week pregnancy because the foetus suffered from cardiac ailments on the other hand Supreme Court in 2017 refused a woman‘s plea to abort a 26 weeks foetus with Down syndrome as down syndrome does not qualify for life threatening factors. On case to case basis abortion is allowed in case of abnormalities. The Act permits abortion in case of substantial foetal abnormalities, but happens when it is detected after 20 weeks, which is the upper limit in the Act. As in most cases genetic abnormalities are detected after 20 weeks and in many cases after 30 weeks, the women are at fix due to stringent laws. When birth defects are detected after the upper limit, most women are denied to abort the child even when she wishes.
Women either opt for illegal abortions or produce the babies if no option is left. It is often argued that the law needs to catch up with the twenty weeks time frame because when the law was set in 1971, there were not many medical tools to change but times have changed. (Mishra, 2017).Moreover another argument that is often put forth is how one can think about the debate on foetus right to life when government itself is not equipped to handle Disability or any other divergent condition. Can a child born with disability lead a dignified life with dismal support from the government in matters of disability and what if socio economic condition cannot support a disabled child? Women in the case is most affected as she has to make a call with limited time and even if she is allowed to abort, the long proceeding in the court makes the process a tough one. Arguments mostly revolve around pro-life and pro-choice.
MTP ACT USED AS AN EXCUSE FOR FEMALE FOETICIDE- Most of the critics say that MTP Act is used an excuse for female foeticide in a patriarchal society like India. According to the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003, ultrasound clinics, genetic counselling centres and other medical facilities are prohibited from conducting pre-natal diagnostic checks except for detecting chromosomal abnormalities or genetic diseases. As pre natal diagnosis is illegal, women along with their families can make use MTP Act to abort a child. On this ground women are not allowed to abort as it might increase female foeticide. Here again pro life vs. pro choice debates come around as critics argue that one right is denied to safeguard a law.
NARROW SCOPE FOR THE WOMEN TO TERMINATE A BABY– the Act is strikingly constricted in nature as it focuses more on medical factors and discounts many factors that may compel a woman to terminate pregnancy. Kashinath in the Article, A Call To Overhaul The Abortion states that a woman may seek abortion when there is a sudden change in personal circumstances in a woman’s life like separation, death of a partner .There are also instances where women don’t even realize that they are pregnant until much later in the term, as they’re using contraceptives, or their periods don’t stop, or they are menopausal etc (Kashinath, 2017).There are also psychological factors like living in denial ,no courage to think about abortion . In case of unmarried women due to conservative idea of family and society women tend to conceal the pregnancy as much as possible and there are times when people around her may dissuade her to not abort .There can be many more such crucial factors that needs to considered when a decision on abortion is made, especially when it exceeds more than 20 weeks.
LONG DRAWN OUT LEGAL PROCEEDINGS-Law often fails to take into account the complexities associated with underage pregnancies. As in rape cases due to stigma associated and silence of victims, under aged pregnancies are discovered late .It is seen that in most cases are either on the verge of entering 20 weeks or crossed the line. Due to late discovery of pregnancies young girls go to court pleading to terminate unwanted and unviable pregnancies. In such cases long legal proceeding adds to the dismal condition of young girls. In a case in UP a 14 year old girl with advanced pregnancy was denied abortion. However more important aspect to this judgement was the fact that girl’s family had to lose precious 8 weeks in long drawn legal proceeding (Kokra, 2017) .It is not just that minor girls have to part of this lengthy legal proceeding. In many cases we see women part of lengthy legal proceeding that they give birth to their babies or cross scope of healthy abortions. In recent R v Haryana, the Punjab and Haryana High Court did not grant the petitioner‘s appeal to abortion however ordered the doctors from AIIMS o reassess if there is any possibility to terminate the pregnancy. However in due course of time the petitioner gave birth to a baby boy owing to lengthy legal proceeding. Women are made to run from pillar to post with uncertain judicial outcomes.
ACT LIMITS HEALTH PROVIDERS ROLE– Maternal mortality rate continue to rise as there is an urgent need to address the weak base of safe abortion in India. There is urgent need to include midlevel providers to conduct abortion procedures’ as there are shortages of trained and equipped doctors especially in rural India. Dhar states that if we keep in mind the shortage of doctors in the country, certification by two service providers’ two gynaecologists or two MBBS doctors with requisite training to conduct abortion or a gynaecologist and one MBBS doctor with requisite training in the Act — to allow termination of pregnancy often acts as a barrier for women wanting abortion.
The issue is more critical in the rural areas where there is an acute shortage of a gynaecologist even at the Community Health Centres. The system therefore forces women to go for unsafe procedures (Dhar, 2013). Moreover even if there are doctors available in primary health care centres, the number of patients it has to cater is way above the required ratio and even if health centres are equipped with MTP services, safe abortions become a hurdle due to lack of healthcare providers. Excessive liability on doctors and not on nurses or other physicians create hurdles for women to access abortion facilities.
UTILISATION OF MTP SERVICES IS VERY LOW- Sample registration System in India estimates that 8% of all maternal death in India is attributed to unsafe abortions. One of the reasons for unsafe abortion is unavailability of MTP services. For the safe abortions to take place District Level Committees were established for certification of private and Ngo sector to provide quality services following MTP Amendment Act 2002. However this committee remain ineffective resulting in lack of certified public and private facilities for women. Henceforth women seek unsafe abortion outside. Statistics show that Andaman and Nicobar, Dadra and Nagar Haveli, Himachal Pradesh, Jammu and Kashmir, and Sikkim are yet to constitute DLCs — well over a decade after the MTP Act was amended,; Uttar Pradesh has established 75 committees, Madhya Pradesh 48, Bihar 38, and Rajasthan 34, but most remain defunct (Dhar, A strong case for amending MTP Act, 2013). Even if facilities are available, there are cases when services are present for 12 weeks and not for 20 weeks and sometimes very few can offer services even for 12 weeks foetus. According to a stastiscal survey MTP services suggest Andaman and Nicobar Islands do not have abortion facilities for a 20-week-old foetus, though 27 public facilities provide abortion facilities for up to 12-week-old foetus; Andhra Pradesh has no public health facilities where a 20-week-old foetus can be aborted and Maharashtra and Madhya Pradesh are the only two States where second trimester facilities are more than those for the first trimester.
What evidently came out from the backlashes of MTP are firstly the pro choice and pro life debate; Secondly lack of implementation of the Act and last but not the least the question what constitute of ‘reproductive choices’ Firstly when we talk about PRO CHOICE OR PRO LIFE, whose Agency are we talking about. There have been many discussions on whether should abortion be seen as a pro choice, which means anti life or should it be pro life, which means to deny abortion to a women for welfare of the unborn baby as well as mother. In the pro choice and pro life debate it is often argued that more feminist conversations tend to incline towards ,pro choice of a woman to have a disable child nor not. Critics argue that there are inadequacy to the idea of choice, as reproduction is not merely choice, as it ignores societal contexts that shape reproduction, parenting and understanding disabled children (Piepmeier, 2013). As in the words of Rosemarie Garland, disability not just a state of inferiority and inadequacy rather is a culturally fabricated narrative of the body. Hence when we talk about choice it’s not all about getting away from disability? If it is all about getting away from disability, in many ways we get into the structure of eugenics which says only fit babies should survive. There should be awareness and constructive arguments for the potential person hood of a foetus with genetic abnormalities and not merely seen as defective. Moreover even when women are making choices one also needs to see if on what grounds she makes a choice. If the choice is biased and gendered or what if that choice is due to inability of a society and state to provide for a disabled child. Choice thus cannot be seen only as ‘choice to have or abort a child’. There are underlying biases that shapes a choice, and cannot been seen as it presented. MTP provisions which claim to provide agency to women in terms of choice should be relentlessly scrutinized, as pro life and pro choice are very much interlinked. On the other hand Pro-life discussion should not be about just saving the life of a disabled child, but also about the life after birth, where it is not just mother who is at the receiving end but the state and the civil society to come into picture. Secondly there is need for broadening of MTP ACT. When we talk about abortion it is not just the MTP Act which needs to be scrutinized .In many cases even when there are good provisions under the Act, there are failures in implementation. As I have mentioned above that even after provisions like setting up of District Level Committees for better implementation of the Act, but what we see is lack of intention to implement for safer abortion. One of the reasons for it is the inadequate number of health providers, Including trained non-MBBS graduates and mid-level healthcare providers like Auxiliary Nurse Midwives and nurses is the need of the hour. Lastly the question of what constitute reproductive rights. On the discussion of reproductive rights there are often questions why MTP focuses more on medical causes and ignore many other hidden factors like social stigma, economic and psychological factors of women. Well this argument should be taken in consideration so that women can access her reproductive right. It is also equally important to consider that if is it possible to put all the factors in a single piece of legislation. Which in my opinion is not a feasible task; a case to case basis judgement would be more possible and efficient.
Another important point that also needs equal attention is the reproductive right of minor or lunatic women where state allows surrogate decision to be taken by the guardian. There are cases when a minor or lunatic woman does not want to abort a child, but immediate guardian decides for the child and women. In such cases one has to question what are the reproductive rights of person who wants to embrace ‘motherhood’, what about her rights. Reproductive is not merely abortion but the right to have a child when wanted.
Similarly what about rights of unmarried woman who wants to abort due to failed contraception as provisions in the Act only allows married women to abort in case of failed contraception/a minor rape survivor who seeks to abort but not allowed What about the rights of these women. Lastly there are arguments that women are not allowed to abort, as in many cases when the Act is thought to be misused for female foeticide. There needs to be stricter laws and implementation mechanism so that the Act is not misused because fear of female foeticide should not become a deterrent for women who want to abort.
CONCLUSION- MTP Bill amendment 2020 came with newer clauses like termination of pregnancies for some category of pregnant women in 20-24 week limit and for greater than 24 weeks limit, if medical board diagnoses that pregnancy involves substantial foetal abnormality. The proposed amendment gives a scope for better implementation of the Act by increasing the care providers’ role and also the increase time frame as it gives more time for women to access her reproductive rights. However what happens to pregnant women after 24 weeks in case of rape survivors. Which category of women can terminate pregnancies between 20-24 weeks limit or the time frame for medical board’s decision are not clearly defined. On the other hand the propose amendment fails to carry forward a strong stand for Disability and reproductive rights of different women just like the case of abortion rights of unmarried women in case of failed contraception.
These amendments which are very ostensibly progressive in nature is put back and forth without effective action till date, forcing women who need to access to safe abortion running to courts with limiting time scope or just seen opting for illegal abortion. Lessons from MTP Act 1971 are must for better imagination and implementation future acts in these regard. I want to conclude by quoting Dalvie ,‘‘Safe abortion is not only about terminating an unwanted pregnancy but is also one of the critical life- saving/ life changing episodes in the life cycle of a woman, and part of the continuum of her sexual and reproductive health and rights. (Dalvie, 2017).’’
Dalvie, S. (2017). Right to Safe Abortion. Ecomic & Political WEEKLY.
Dhar, A. (2013). A strong case for amending MTP Act. THE HINDU.
Dhar, A. (2013). Gynaecologists, activists demand expansion of abortion services. THE HINDU.
GAUR, K. D. (1991). Abortion and the Law in India. Cochin University Law Review.
Kashinath, P. (2017). A Call To Overhaul The Abortion Law Of India. FEMINISM IN INDIA.COM.
Kokra, S. (2017). Why Is India’s Abortion Law Failing Its Women On So Many Fronts? HUFFPOST.
Mishra, N. (2017). MTP Act: Why the 46-Year-Old Abortion Law Needs to Be Smacked Down. Quint.
Piepmeier, A. (2013). The Inadequacy of “Choice”: Disability and What’s Wrong with Feminist Framings o fReproduction. Feminist Studies.
Pragya Kakaty is an independent researcher; Masters in women’s studies from Tata Institute of Social Sciences, Mumbai. Email- email@example.com
 Rosemarie Garland-Thomson, “Integrating Disability, Transforming Feminist Theory,” NWSA Journal 14, no. 3 (2002