This blog is written by Isha Srivastava, a 2nd year law student from Jiwaji University, Gwalior, Madhya Pradesh.
Introduction
A bundle of claims that a person asserts against another person or the entire world refers to the sense of holding rights. Right gives protection, a sense of trust, and power to the person, which is significant in his mental as well as physical development to lead a good life. India’s Constitution states that like should be treated alike. Undoubtedly, the sense of equality among the people in society plays an important role in establishing an organized and peaceful ideal state. But treating everyone equally and ignoring their natural differences can be an injustice to them. Thus, equality must be there while governing a state, but it should also be in the minds of the governors that society is not uniform in its composition; it has distinctions regarding gender, caste, religion, race, place, etc. Thus it becomes important to deliver justice, govern, and treat everyone on the same scale. Thus, a male cannot complain on the grounds of gender discrimination that he has no inclusion under the Maternity Benefits Act, 2017, because the core subject of the Act is very specific and only relates to the natural properties of females. In this way, we have a number of laws that only relate to a specific gender.
These kinds of legislation ensure an efficient and better justice system in the nation in which people are treated with respect to their natural differences in an appropriate manner so that because of their inherent properties, they don’t feel neglected in society. There are laws that particularly deal with the security, health, maternity benefits, abortion rights, property, and marital rights of women. In the series of such legislations, there is one that deals with the right to abortion or terminating the pregnancy of women in India; the Act is the Medical Termination of Pregnancy Act, of 1971.
In many countries, women are given the right to procreate, and along with this right, they are also vested with the right to decide whether or not they want to carry offspring. In earlier times in India, abortion, or voluntary termination of pregnancy, was considered a crime or offensive act. But after the Medical Termination of Pregnancy Act, 1971, the termination of pregnancy was legalized under some specific conditions as per the Act. In the years ahead, the Act underwent several changes and amendments that made it simpler and more accessible for women to get medical benefits regarding abortion. This blog exclusively involves the critical analysis of the Medical Termination of Pregnancy Amendment Act,2021.
Legislative History
Medical termination of pregnancy used to be considered by society in India as wrongful conduct. Sections 312 to 318 of the IPC are concerned offences related to newborn or unborn children. In accordance with Section 312, it has been declared that whosoever intentionally and voluntarily attempts to cause the miscarriage of a woman, shall be liable for the punishment of three years imprisonment along with a fine, There are two exceptions to this rule, one is conducted in good faith and the other is when a woman’s life is in danger.
In this way, before 1971, abortion was treated as a crime. Due to the changing needs and scenarios of society, there was a need to legalise the practice of abortion. Thus, in 1964, the Central Family Planning Board of India constituted a committee named the Shantilal Shah Committee. The main motive of this committee was to examine the practise of abortion from all aspects and to lower the incidence of unsafe abortions, maternal deaths, and other such issues. The report of this committee proposed a Medical Termination of Pregnancy Bill in the Lok Sabha and Rajya Sabha in 1969, which was approved in 1971. This Act permitted the termination of some specific pregnancies by registered medical practitioners and ensured the safe and legal abortion of women in India. There are a number of amendments made to this Act as per the requirements of time and society.
Former Health and Family Welfare Minister Dr. Harshvardhan Goyal consulted with medical experts, medical professionals, and several other ministries and proposed the Medical Termination of Pregnancy Bill 2020 in the Lok Sabha, on March 2, 2020. The bill was approved by the Lok Sabha on March 17, 2020. The object of this bill was to make amendments to the Medical Termination of Pregnancy Act, 1971, to make its provisions more clear, efficient, and accessible. The bill included more cases of pregnancies in which medical termination was legal and extended the period for abortion. The bill was the better version of the Act of 1971.
Object of the Act
To ensure that everyone has access to comprehensive care, the Medical Termination of Pregnancy (Amendment) Act, 2021, broadens and enables an easy approach to secured, safe, hygiene-based, and legal abortion. The Sustainable Development Goals, which will help to eliminate the incidence of avoidable maternal death, will be significantly advanced by this Act.
The Act is the result of developments in the field of medical science. This amendment Act has altered the original Act in such a way that it has become more efficient and effective on humanitarian, social, and medicinal grounds.
The following can collectively be called the objects of the Medical Termination of Pregnancy (Amendment) Act, 2021:
- The new law contributes to achieving the Sustainable Development Goals by lowering the maternal mortality rate.
- It extended the upper limit for abortion from 20 to 24 weeks for particular cases of pregnancies.
- This act includes safe abortion with an extended gestation limit of 20 to 24 weeks for rape survivors, incest victims, minors, and other vulnerable women.
- The amendment has made medical assistance in cases of abortion more accessible under the MTP Act.
- The ultimate aim of the Act is to give new recognition to the practice of abortion in a society where it was previously considered a crime.
Provisions of the Act
The Act includes significant provisions that helped liberalise the methods governing The Upper Gestational Limit for Special Cases.
The upper gestational limit is now increased from 20 weeks to 24 weeks for certain cases specified in the act: pregnancies, in cases of sexual assault, incest victims, minors, and differently-abled women can be terminated in 24 weeks of gestation period.
Number of RMPs for giving the opinion for termination of pregnancy
The opinion of one RMP is needed for the termination of pregnancy up to 20 weeks of gestation.
The opinion of two RMPs is required for the pregnancy termination, in which the pregnancy includes 20 to 24 weeks of gestation.
In the case of termination of the pregnancy after 24 weeks of gestation because of substantial abnormalities on the part of the child, an opinion from the state-level Medical Board is necessary.
Termination of Pregnancy due to failure of the contraceptive method
Under this provision of the Act, a married woman can terminate her pregnancy in the event of the failure of a contraceptive method or device. The provision indiscriminately allows unmarried and divorced women to get their pregnancies terminated for the same reason.
Confidentiality of the concerned individual
The Act protects the identity of the concerned woman. It has been clearly mentioned in the Act that the name and particulars or belongings of the woman whose pregnancy has been terminated in accordance with the provisions of this Act shall not be disclosed but remain under the protection of the concerned authorities.
Thus, the Act provides women with confidentiality with respect to their identities. It covers all aspects of safety on social and humanitarian grounds.
Difference between MTP Act, 1971 and MTP Act, 2021
| Grounds of Distinction | Medical Termination of Pregnancy Act, 1971 | Medical Termination of Pregnancy Amendment Act, 2021 |
| Time Period for terminating the pregnancy: | 20 weeks. Under the Act, pregnancy cannot be terminated beyond 20 weeks. | 24 weeks, and with the opinion of SLMBpregnancy can be terminated beyond 24 weeks also (in case of abnormalities on the part of the child). |
| Opinion of RMPs required before termination of pregnancy: | Opinion of one RMP for terminating pregnancy up to 12 weeks.Opinion of two RMPs for termination of pregnancy up to 20 weeks. | Opinion of one RMP for terminating pregnancy up to 20 weeks.Opinion of two RMPs for terminating pregnancy up to 20 to 24 weeks.Approval from the state-level Medical board, for terminating pregnancy after 24 weeks. |
| Right to terminate pregnancy in case of Contraceptive Failure: | Only Married Women were given this right. | Married women, unmarried women, and divorced women are entitled to this right. |
| Punishment breaching of women’s confidentiality: | On breach of women’s confidentiality as per MTP Act, 1971, the wrongdoer is punished with a fine up to rs.1000 | On breach of women’s confidentiality as per the MTP Act, 2021, the wrongdoer is punished with a fine and/or imprisonment of 1 year. |
| Cases in which the abortion was justified: | Physical or mental disability on the part of the motherIn the case of sexual assaultAbnormality on the part of the child. | Survivors of rapeIncest womenWidowDivorced womenDifferently-abled womenMinors |
Significance of the Act
The new amendment Act made the previous act more effective and efficient. Advancement in the field of medical science and technology is clearly reflected in the act. It also aimed to lower the maternal mortality rate and thus contribute to achieving the Sustainable Development Goals.
The Act specifically provides easy access for women to comprehensive health care and medical benefits regarding abortion. It also ensures safe abortion for all women, along with the guarantee of confidentiality. It secures dignity, justice, and autonomy for women to terminate pregnancy.
Shortcomings of the Act
The Act has resolved many issues concerning the termination of pregnancy, but at the same time, a few concerns arise:
A shortage of gynaecologists in rural and remote areas
The Act allows termination of pregnancy after satisfying all the required conditions enumerated in the provisions of the act, only by a gynaecology specialist. As there is a 75% shortage of such doctors in slums and remote areas, women from such areas are unable to get appropriate medical assistance with respect to their pregnancy termination. Thus, it affects the goal of the act, which is to make comprehensive health care more accessible to all women.
Diverse viewpoints on the termination of pregnancy
The right to terminate the pregnancy is covered under the ambit of women’s reproductive rights. While another angle of this concern is that it is the duty of the state to protect the life of any living being, the state must save the life of a foetus who has not even come to this world and is living. This is how there is a tussle between two points of view.
Rape survivors have less access to pregnancy termination
The Act allows pregnancy termination after 24 weeks only on the condition that a state-level medical board has given consent to the termination on the grounds of foetal abnormalities. In such a scenario, the rape survivors only have one option in the case of terminating their pregnancy after 24 weeks: a writ petition. It restricts the access of rape survivors to easy abortions.
Conclusion
It is a matter of great appreciation that the government is working so hard to improve the status of women in the social sphere and endow them with all the rights that are required for their development in all aspects. The government’s move towards providing vital health care to all women through a series of amendments and laws has changed the condition of women. Abortion, which used to be considered an unclean subject, is now worth legislating to give all reproductive rights to women. In Justice K.S. Puttaswamy (retd.) vs. UOI and Ors. (2017), the court stated in the delivered judgement that women can make reproductive choices as it is considered a constitutional right of women that falls under the ambit of Article 21 of the constitution, which emphasises personal liberty. This is how women are guaranteed safe abortion and freedom of execution of their reproductive rights. The Medical Termination of Pregnancy (Amendment) Act 2021 secures the dignity, autonomy, and rights of women.
