Still a long way for termination as an unconditional right

• Under the general criminal law of the country, i.e. the Indian Penal Code, voluntarily causing a woman with child to miscarry is an offence attracting a jail term of up to three years or fine or both, unless it was done in good faith where the purpose was to save the life of the pregnant woman.
• A pregnant woman causing herself to miscarry is also an offender under this provision apart from the person causing the miscarriage, which in most cases would be a medical practitioner.

Medical Termination of Pregnancy (MTP) Act

• Enacted in 1971.

  • This law is an exception to the IPC provisions above and sets out the rules for accessing an MTP.
  • This law has been amended twice since, the most recent set of amendments being in the year 2021 which has, to some extent, expanded the scope of the law.
  • However, the law does not recognise and/or acknowledge the right of a pregnant person to decide on the discontinuation of a pregnancy.

• Conditions for MTP

  • continuation of the pregnancy would involve a risk to the life of the pregnant woman or result in grave injury to her physical or mental health.
  • if the pregnancy is as a result of rape or failure of contraceptive used by the pregnant woman or her partner to limit the number of children or to prevent a pregnancy
  • substantial risk that if the child was born, it would suffer from any serious physical or mental abnormality.

Limitations:

• A pregnant person cannot ask for a termination of pregnancy without fitting in one of the reasons set out in the law.
• Pregnancy can be medically terminated only up to 20 weeks of the gestational age.
  • From 20 weeks up to 24 weeks, the opinion of two registered medical practitioners is required.
• This extended gestational limit is applicable to certain categories of women which the rules define as:
  • a survivor of sexual assault or rape or incest
• minors
  • change of marital status during the ongoing pregnancy, i.e. either widowhood or divorce
  • women with major physical disabilities
  • mentally-ill women including mental retardation
  • the ground of foetal malformation incompatible with life or if the child is born it would be seriously handicapped
  • women with pregnancy in humanitarian settings or disaster or emergency situations as declared by the government.
• No termination of pregnancy can be done in the absence of the consent of the pregnant person, irrespective of age and/or mental health.

Exceptions

• The law also provides that where it is immediately necessary to save the life of the pregnant woman, the pregnancy can be terminated at any time by a single registered medical practitioner.
  • It is to be resorted to only when the likelihood of the pregnant woman dying is immediate.

Seeking judicial permission

• While India legalised access to abortion in certain circumstances much before most of the world did the same, unfortunately, even in 2020 we decided to remain in the logic of 1971.
• In a number of these cases, the courts had articulated the right of a pregnant woman to decide on the continuation of her pregnancy as a part of her right to health and right to life, and therefore non-negotiable.
  • Similarly, a number of courts had also viewed the cases at hand in the realm of the facts of the case and decided not to set the interpretation of the law straight.
• A part of Right to privacy - Supreme Court held that the decision making by a pregnant person on whether to continue a pregnancy or not is part of such a person’s right to privacy as well and, therefore, the right to life.

Structural Bottlenecks

The new law is not in sync with other central laws such as the laws on persons with disabilities, on mental health and on transgender persons, to name a few. The amendments also did not make any attempts to iron out the conflations between the MTP Act and the Protection of Children from Sexual Offences (POCSO) Act or the Drugs and Cosmetics Act, to name a few.

Conclusion:

While access to abortion has been available under the legal regime in the country, there is a long road ahead before it is recognised as a right of a person having the capacity to become pregnant to decide, unconditionally, whether a pregnancy is to be continued or not.

Exam Track

Prelims Takeaway

• Protection of Children from Sexual Offences Act
• MTP Act Mains Track
• Q. Medical Termination of Pregnancy (Amendment) Bill, 2020 strives to provide reproductive rights to women in India. Critically examine.