Despite the amendments, the Medical Termination of Pregnancy Act does not advance a woman’s right to make decisions
Despite the amendments, the Medical Termination of Pregnancy Act does not advance a woman’s right to make decisions
The issue of abortion is once again in discussion at the international level. Hence, it appears to be a good time to write a summary and analysis of the legal status of abortion in India.
Under the general criminal law of the country, i.e., the Indian Penal Code, voluntarily aborting a woman with child is an offense punishable with imprisonment for a term which may extend to three years, or with fine, or with both, unless it is done in good faith. have gone The pregnant woman’s life was to be saved. Under this provision, a pregnant woman who performs an abortion is an offender other than the person carrying out the abortion, who shall in most cases be a physician.
Modifications and Extensions
In 1971, after much deliberation, the Medical Termination of Pregnancy (MTP) Act was enacted. This law is an exception to the above IPC provisions and lays down the rules for when, who, where, why and by whom to access the MTP. The law has been amended twice, the most recent being in the year 2021, which has somewhat expanded the scope of the law. However, the law does not recognize and/or acknowledge the right of a pregnant person to make decisions about preventing pregnancy.
The law provides a set of reasons on the basis of which an MTP may be accessed: the continuation of the pregnancy would involve risk to the life of the pregnant woman or could result in serious injury to her physical or mental health. The law provides that if the pregnancy results from rape or the failure of contraception used by the pregnant woman or her partner to limit the number of children or to prevent pregnancy, the suffering caused by the continuance of such pregnancy shall be considered. Will be done. Causing serious injury to the mental health of a pregnant woman. Another reason for seeking MTP is that if the child is born, he/she will suffer from any serious physical or mental abnormality.
The existence of (at least) one of these circumstances as well as the medical opinion of a medical practitioner registered under the MTP Act is necessary. A pregnant person may not ask to terminate the pregnancy without having fit for any of the reasons set out in the law. The second set of limits provided by law is the gestational age of the pregnancy. A pregnancy can be terminated for any of the above reasons on the opinion of a registered medical practitioner up to 20 weeks of gestational age. At 20 weeks to 24 weeks, the opinion of two registered physicians is required. This expanded gestational limit applies to certain categories of women, whom the rules define as sexual assault or rape or incest, minors, change in marital status during an ongoing pregnancy, i.e. widowhood or divorce, women with major physical disabilities . Mentally ill women, including those with mental retardation, the grounds of fetal malformation incompatible with life or if the child is born that would be severely disabled, and women with pregnancies in government-declared humanitarian settings or in disaster or emergency situations.
Any decision to terminate a pregnancy beyond the gestational age of 24 weeks, only on the ground of fetal abnormalities, may be taken by a medical board established in each State in accordance with law. Without the consent of the pregnant person, regardless of age and/or mental health, the pregnancy cannot be terminated.
The law, with an exception to all of the above, also provides that where it is urgently necessary to save the life of the pregnant woman, the pregnancy may be terminated at any time by any registered medical practitioner. This, as stated, is an exception and is understood to be resorted to only when the likelihood of the death of the pregnant woman is immediate.
seeking judicial permission
While India legalized access to abortion in some circumstances before much of the world did the same, unfortunately, in 2020 also we decided to stick to the 1971 logic. This despite the fact that amendments were made to the MTP Act. Introduced before the Lok Sabha in 2020, just before the lockdown following the novel coronavirus pandemic, courts across the country (over the past four years) had seen close to 500 cases of pregnant women seeking permission to terminate their pregnancies Usually due to either sexual assault or pregnancy as a result of fetal anomalies incompatible with life). In many of these cases, courts had clarified the right of a pregnant woman to decide to continue with her pregnancy as a part of her right to health and right to life, and is therefore non-negotiable. Similarly, several courts had also seen cases within the bounds of the facts of the case and decided not to direct interpretation of the law.
This was also followed by the landmark Right to Privacy decision of the Supreme Court of India which held that the decision of a pregnant person to continue or not to continue the pregnancy is also part of such person’s right to privacy and, therefore, the right to live. The standards laid down in this judgment were also not included in the amendments being drafted. The new law is not in sync with other central laws such as the law on persons with disabilities, mental health and transgender persons. The amendments made no attempt to address the conflict between the MTP Act and the Protection of Children from Sexual Offenses (POCSO) Act or the Drugs and Cosmetics Act.
While access to abortion is available under the legal system in the country, before it is recognized as a right of a person who has the potential to become pregnant, a further one is required to decide unconditionally whether the pregnancy is to be continued. Long way to go. No.
Anubha Rastogi is an advocate practicing in the courts of Mumbai for the past 19 years and is an active voice on issues of sexual reproductive health and justice.