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HC allows woman to terminate 28-week pregnancy

Context:

The Delhi High Court has said that reproductive choice is a facet of reproductive rights of a woman and a dimension of her ‘personal liberty’, while allowing a woman to terminate her 28 weeks’ pregnancy as the foetus suffers from a rare congenital heart disease.

Relevance:

GS-II: Social Justice and Governance (Issues related to women, Government Policies and Initiatives)

Dimensions of the Article:

  1. Background on Abortion in India
  2. The Medical Termination of Pregnancy Act, 1971
  3. Medical Termination of Pregnancy Amendment Act, 2021
  4. Significance of the amendment
  5. Criticisms of the 2021 amendment to the MTP act
  6. Way forward

Background on Abortion in India

  • Abortion in India is legal in certain circumstances. It can be performed on various grounds until 24 weeks of pregnancy. In exceptional cases, a court may allow a termination after 24 weeks.
  • When a woman gets a pregnancy terminated voluntarily from a service provider, it is called induced abortion. Spontaneous abortion is when the process of abortion starts on its own without any intervention. In common language, this is also known as miscarriage.
  • Before 1971, abortion was criminalized under Section 312 of the Indian Penal Code, 1860, describing it as intentionally ‘causing miscarriage’.
  • It was in the 1960s, when abortion was legal in 15 countries, that deliberations on a legal framework for induced abortion in India was initiated.
  • The alarmingly increased number of abortions taking place put the Ministry of Health and Family Welfare (MoHFW) on alert.
  • To address this, the Government of India instated a Committee in 1964 led by Shantilal Shah to come up with suggestions to draft the abortion law for India.
  • The recommendations of this Committee were accepted in 1970 and introduced in the Parliament as the Medical Termination of Pregnancy Bill.

The Medical Termination of Pregnancy Act, 1971

  • The Medical Termination of Pregnancy (MTP) Act, 1971 provides the legal framework for making CAC services available in India.
  • Termination of pregnancy is permitted for a broad range of conditions up to 20 weeks of gestation as detailed below:
    1. When continuation of pregnancy is a risk to the life of a pregnant woman or could cause grave injury to her physical or mental health;
    2. When there is substantial risk that the child, if born, would be seriously handicapped due to physical or mental abnormalities;
    3. When pregnancy is caused due to rape (presumed to cause grave injury to the mental health of the woman);
    4. When pregnancy is caused due to failure of contraceptives used by a married woman or her husband (presumed to constitute grave injury to mental health of the woman).
  • The MTP Act specifies
    • who can terminate a pregnancy;
    • till when a pregnancy can be terminated; and
    • where can a pregnancy be terminated.

Medical Termination of Pregnancy Amendment Act, 2021

  • The Act increases the gestation period of women seeking abortion up from 20 weeks to 24 weeks – It allows abortion to be done on the advice of one doctor up to 20 weeks, and two doctors in the case of certain special categories of women between 20 and 24 weeks.
  • The “special categories of women” include rape survivors, victims of incest, the differently-abled and minors.
  • In case of the gestational period beyond 24 weeks, pregnancy may be terminated only in cases of substantial foetal abnormalities diagnosed by the Medical Board or if there is a threat to the life of the mother.
  • Opinion of only one provider will be required up to 20 weeks of gestation and two providers for termination of pregnancy of 20-24 weeks of gestation. (Opinion of only one doctor will be required up to 20 weeks of gestation and two doctors for termination of pregnancy of 20-24 weeks of gestation.)
  • Under the Act, a pregnancy may be terminated up to 20 weeks by a married woman in the case of failure of contraceptive method or device. It allows unmarried women to also terminate a pregnancy for this reason.
  • All state and union territory governments will constitute a Medical Board. The Board will decide if pregnancy may be terminated after 24 weeks due to substantial foetal abnormalities. 

 

Significance of the amendment

  • It will provide greater reproductive rights and dignity to women as abortion is considered an important aspect of the reproductive health of women.
  • Deaths and injuries from unsafe abortions are largely preventable provided services are performed legally by trained practitioners.
  • The rape victims and vulnerable victims will also be benefitted from Privacy Clause.
  • Many cases which were filed in High Courts to seek permission for abortion beyond 20 weeks will be reduced. Also, often 20 weeks were spent in completing the legal procedures and formalities – hence, there was a need to increase the upper limit of time.

Criticisms of the 2021 amendment to the MTP act

  • One opinion is that terminating a pregnancy is the choice of the pregnant woman and a part of her reproductive rights. Another is that the state should protect life and hence should provide for the protection of the foetus.
  • It enhances the gestational limit for legal abortion from 20 to 24 weeks only for specific categories of women. A woman who does not fall into these categories would not be able to seek an abortion beyond 20 weeks.
  • The Act does not provide a time frame within which the Board must make its decision. Also, the shortage of specialised doctors will further delay the case.
  • There may be cases where persons who identify as transgender (and not women) can become pregnant even after receiving hormone therapy to transition from female to male, and may require termination services. The Act is silent over this.
  • The boards are unnecessary and an invasion of privacy of the pregnant women which pushes the laborious process a woman had to undergo in order to get an abortion.
  • Many are still not aware of their reproductive rights and the amendment does not show concerns towards the need for awareness.

Way forward

  • The Supreme Court has recognised a women’s right to make reproductive choices and said that their decision to abort is a dimension of their liberty (in Mrs X v. Union of India, 2017). The SC also laid that this right to make reproductive choices falls within the realm of the fundamental right to privacy. Hence, there should be more emphasis on giving reproductive choice in abortions to women.
  • The state needs to keep a watchful eye for cases where sex-selective abortions are performed to prevent the sex ratio from nosediving further.
  • Legislations must be broadened to encompass Transgenders.
  • Trained medical staff including ASHA workers are to be ensured.
  • There is a need to encourage the role of men in family planning to ensure that women do not face the burden alone.

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October 2022
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