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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Critical Analysis of Medical Termination of Pregnancy (Amendment) Bill, 2020.

Introduction: 

  The Medical Termination of Pregnancy (Amendment) bill, 2020 was passed by the Lok Sabha on March 17, 2020. The bill seeks to amend the Medical Termination of Pregnancy Act, 1971 and increase the upper limit of legal abortions to 24 weeks for special categories of woman.
Union Health Minister Harsh Vardhan stated that the proposed bill seeks termination of pregnancy in cases involving victims of incest, rape survivors, minor girls, differently-abled girls or in case of a pregnancy that has a substantial foetal abnormalities. 
The Union Cabinet had approved the Medical Termination of Pregnancy (Amendment) Bill on January 29, 2020 under the chairmanship of PM Narendra Modi[1]. The right to life and personal liberty as guaranteed by Article 21 of the Constitution would be interpreted in such a way to include the “Right of Abortion”.[2]
Salient Features of the Amendments: 
  • Proposing requirement for opinion of one provider for termination of pregnancy, up to 20 weeks of gestation and introducing the requirement of opinion of two providers for termination of pregnancy of 20-24 weeks of gestation. 
  •  Enhancing the upper gestation limit from 20 to 24 weeks for special categories of women which will be defined in the amendments to the MTP Rules and would include ‘vulnerable women including survivors of rape, victims of incest and other vulnerable women (like differently-abled women, Minors) etc. 
  • Upper gestation limit not to apply in cases of substantial foetal abnormalities diagnosed by Medical Board. The composition, functions and other details of Medical Board to be prescribed subsequently in Rules under the Act. 
  •  Name and other particulars of a woman whose pregnancy has been terminated shall not be revealed except to a person authorised in any law for the time being in force.[3]
Why this Amendments is required? 

  • Currently, women seeking to terminate the pregnancy beyond 20 weeks have to face the cumbersome legal recourse.
  • This denies the reproductive rights of women (as abortion is considered an important aspect of the reproductive health of women). 
  • Obstetricians argue that this has also spurred a cottage industry (kind of informal industry) of places providing unsafe abortion services, even leading to the death of the mother. 

Unsafe abortions: 

  • As a result, a 2015 study in the India Journal of Medical Ethics noted that 10-13% of maternal deaths in India are due to unsafe abortions. This makes unsafe abortions to be the third-highest cause of maternal deaths in India.[4]

 Delay in Decision Making: 

  • According to Section 3 (2) of the MTP Act, 1971 a pregnancy may be terminated by a registered medical practitioner: 
  1. Where the length of the pregnancy does not exceed twelve weeks, or
  2. Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks. In this case, the abortion will take place, if not less than two registered medical practitioners are of opinion, that the continuance of the pregnancy would involve a risk to the life of the pregnant woman (her physical or mental health); or there is a substantial risk that if the child wereborn, it would suffer from some physical or mental abnormalities to be seriously handicapped.[5]

This delays the decision-making process for termination of pregnancy. 

Relief for Minor:

  • The original law states that, if a minor wants to terminate her pregnancy, written consent from the guardian is required. The proposed law has excluded this provision.
  • Thereby, the extension of limit would ease the process for these women, allowing the mainstream system itself to take care of them, delivering quality medical attention.

Importance of increasing gestation limit:

  • The government reasoned that the extension is significant because some women realise the need for an abortion after the first 20 weeks of pregnancy.
  •  Usually, the foetal anomaly scan is done during the 20th-21st week of pregnancy.
  •  If there is a delay in doing this scan, and it reveals a lethal anomaly in the foetus, 20 weeks is limiting.
  • The extension of limit would ease the process for the distressed pregnant women, allowing the mainstream system itself to take care of them, delivering quality medical attention.

Pros of this Extension:

  • The proposed increase in gestational age will ensure dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy.
  1.  Foetal Anomaly scan:
  •  A number of foetus abnormalities are detected after the 20th week, often turning a wanted pregnancy into an unwanted one.
  • Usually, the foetal anomaly scan is done during the 20th-21st week of pregnancy. If there is a delay in doing this scan, and it reveals a lethal anomaly in the foetus.
  • This extension helps in cases where some anomaly in the foetus is reported after 20 weeks. 
  •  The law will help the rape victims, ill and under-age women to terminate the unwanted pregnancy lawfully.[6]

      2.  Change in Words: 

  •  The MTP Act (Amendment) 2002 changed the word ‘lunatic’ to ‘mentally ill person’ and the 2020 Bill has changed the word ‘Husband’ to ‘Partner’ so that the marital status of the woman is no longer issue.[7]

     3. Applicability to unmarried woman:

  •  Significantly, the Bill also applies to unmarried women and therefore, relaxes one of the regressive clauses of the 1971 Act, i.e., single women couldn’t cite contraceptive failure as a reason for seeking an abortion..
  •  Allowing unmarried women to seek safe abortion services on the grounds of contraceptive failure seeking an abortion will bestow reproductive rights to the women.[8]

     4. Anomaly Detection : 

  •  Gynecologists say the amendment to allow termination till 24th week of pregnancy, from the present 20th week could help detect anomalies in the heart and brain of babies.[9]

Issues related to the Extension:

  • While the amendments stand show signs of a more progressive law, the legislation betrays a selective vision and lack of intersectionality.

Viability of the foetus:

  • A key aspect of the legality governing abortions has always been the ‘viability’ of the foetus.
  •  Viability implies the period from which a foetus is capable of living outside the womb.
  • As technology improves, with infrastructure up-gradation, and with skilful professionals driving medical care, this ‘viability’ naturally improves.
  • Currently, viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.
  •  Thus, late termination of pregnancy may get in conflict with the viability of the foetus.

 Misusal of Sex Determination :

  • The preference for a male child keeps sex determination centres in business in spite of their illegal status.
  •  The option of extending termination till the 24th week could be misused for sex determination and lead to more morbidity warns Dr Padma S, consultant gynecologist, BGS Global Hospitals. “ In the 22nd week, the sexual organs are clearly revealed in the scan. In a country like India where the girl child is often seen as burden, MTP in the 24th week could pose potential risk,” she says.[10]

Delay in Approvals:

  • The more tedious process of approvals is the more delays we can expect- which especially going into the third term, can mean increased risks for the person seeking abortion.[11

 Risk in exercising bodily autonomy:

  • In matters where time is of utmost essence, the ability of a woman to exercise bodily autonomy, if any, continues to solely lie upon the medical professional who should be willing to commit what would be a dishonest and unprofessional act. Even with a medical professional who would provide such non-judgmental safe space, it would be at the personal risk of attesting that the pregnancy would be “harmful” to the woman and thereby entirely strip of woman of her dignity and autonomy.[12]

Secondary Considerations:

  •  As pedantic as it sounds, due consideration could also be paid to the language the law uses- the term ‘pregnant person’ could replace ‘pregnant woman’ or ‘foetal anomaly’ could be used instead of ‘foetal abnormality’.[13]
  • According to 2017 data, 59 countries allowed elective abortions, of which only seven permitted the procedure after 20 weeks like Canada, China, the Netherlands, North Korea, Singapore, the United States, and Vietnam.[14]

Conclusion:

Though Medical Termination of Pregnancy (Amendment) Bill, 2020 is a step in the right direction, the government needs to ensure that all norms and standardised protocols in clinical practice to facilitate abortions are followed in health care institutions across the country. Along with that, the question of abortion needs to be decided on the basis of human rights, the principles of solid science, and in step with advancements in technology.

[1]https://pib.gov.in/PressReleasePage.aspx?PRID=1600916
[2]AIR JOURNAL SECTION p.129 at 135
[3]https://www.pmindia.gov.in/en/news_updates/cabinet-approves-the-medical-termination-of-pregnancy-amendment-bill-2020/
[4]https://www.downtoearth.org.in/news/health/abortion-in-india-experts-call-for-changes-66369
[5]https://indiankanoon.org/doc/357331/
[6]https://www.pmindia.gov.in/en/news_updates/cabinet-approves-the-medical-termination-of-pregnancy-amendment-bill-2020/
[7]https://thewire.in/women/medical-termination-of-pregnancy-bill-amendments
[8]https://health.economictimes.indiatimes.com/health-files/mtp-act-more-needs-to-be-done-to-make-the-amendments-meaningful-for-wome/4108
[9]https://timesofindia.indiatimes.com/city/bengaluru/Amendment-to-MTP-Act-could-have-pros-and-cons-docs/articleshow/45128171.cms
[10]https://timesofindia.indiatimes.com/city/bengaluru/Amendment-to-MTP-Act-could-have-pros-and-cons-docs/articleshow/45128171.cms
[11]https://thewire.in/women/medical-termination-of-pregnancy-bill-amendments
[12]https://thewire.in/women/medical-termination-of-pregnancy-bill-2020
[13]https://thewire.in/women/medical-termination-of-pregnancy-bill-amendments
[14]https://theprint.in/health/indian-women-set-to-get-right-to-abort-pregnancy-in-6th-month-instead-of-the-5th/356109/

This blog is authored by- Gowrav Hari Krishnan . P

13 thoughts on “Critical Analysis of Medical Termination of Pregnancy (Amendment) Bill, 2020.”

  1. Very impressive analysis . The writer whilst putting forth the pros in increasing foetal age for MTP has analysed the limitations including the semantics of the act . Highlighting the ethical considerations in implementing this act is very important to practising medical professionals especially gynaecologists and radiologist .

  2. Very well analysed Gaurav. This is a very difficult legislation, which involves ethical, medical, legal, moral and human rights aspects and it is critical to strike the right balance. Needless to say, the implementation of the law is the most important part. Well done and wish you all the best

  3. Excellent analysis of the act. Very well written. I would like to add that in case of fetal anomalies diagnised at 18 to 19 weeks sometimes amniocentesis is done. Its report takes at least 3 weeks. After that concerned family takes time to decide about the termination, especially those who don't believe in termination of pregncies. This act is a boon in such scenario
    Under section – secondary considerations- instead of pregnant person, pregnant lady is a better word.

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