Modern Day India With A Modern Day Medical Termination Of Pregnancy Bill, Pregnancy is a gift of the Gab. While most times it is entailed by not just a little bundle of joy but also an immense load and pleasure of parenthood, sometimes parenthood is not pleasurable. Women from all walks of life after menarche and before menopause are cable of giving birth to a whole new living being; but does this also mean that mere capacity also sanctions willingness?
There are numerous categories of abortions that may occur during a pregnancy. They can either be natural, accidental or induced. As the names suggest, natural abortions are as a consequence of various effects such as ill-health of the foetus or the mother and other complications and accidental abortions are a direct or subsequent consequence of a trauma endured by a mother or the foetus resultant of an accident. And induced abortion, on the other hand, is a procedure as defined by law that results in a voluntary delivery that is done untimely, with the intent of destroying the foetus carried by the pregnant woman.
The earlier Act was passed on August 8th 1971. While over the years, the growth rate of population in India has significantly reduced from a recorded 2.258% in 1971, to a recorded 1.037% in 2018, India still sees itself failing to ensure safe termination of pregnancies and preventing avoidable causes of deaths of a pregnant woman. Until 2018, illegal abortions in India are the third leading cause of death amongst women.
On 10 October 1975 the Government of India, by a notification revised the rules under MTPA. According to these newly revised rules, a woman who wishes to abort an unwanted pregnancy may go to a hospital or recognised institution offering the facility and after filling in a form, get an abortion even without her husband’s consent. The hospital has to give to the woman a registration number and keep the form in an envelope marked “secret” and the doctor who performs such abortion is not only under no obligation to consult or notify her husband but also is bound by his duty of confidentiality to his patient and must not inform her husband against her will.
In the recent developments, the Medical Termination of Pregnancy Bill, 2020. This Bill was passed by the Lok Sabha on March 17th, 2020. It was introduced in the Lok Sabha on March 2nd, 2020 by the Mister of Health and Family Welfare, Dr Harsh Vardhan. The Bill aimed to ease down the regulations of abortion in India as enumerated by the Medical Termination of Pregnancy Act, 1971.
This Bill seeks to liberalise the already existing law for medical termination of pregnancy by making it more conducive such that the unwanted pregnancy can be terminated under supervised conditions by trained medical professionals and any helplessness of an already ailing woman does not lead to circumstances where she has to succumb to resorting to an unprofessional and extortive measure taken by people to terminate an unwanted pregnancy.
This Bill has provided a proper statutory definition to the phrase ‘Termination of pregnancy”.The earlier Act lacked any such definition and the only understanding of the phrase was based on the already existing and widely accepted medical meaning. This provides for a sense of certainty and unambiguity to the act, by exactly defining the most pivotal focus of the Act. The definition, accordingly, clearly lays down that this Act shall encompass provisions that are relevant only to induced abortion and not accidental or natural abortions.
The Bill extends the period of 12 weeks to 20 weeks under which a pregnancy may be terminated if a registered medical practitioner is of the opinion that –
- Pregnancy would pose grave threat to the life of the mother or cause a serious injury to her.
- That if the child is born. may suffer physical or mental abnormalities.
Earlier, the Act only permitted the termination of pregnancy on the opinion of a registered medical practitioner until the 12th week of gestation. Now, this period has been significantly increased.
The question that such a move raises is, does abortion at a later stage in the pregnancy adversely affect the health of the woman? In a study that was published by Obstetrics & Gynecology in 2014, data was collected from over 50,000 different women and on looking for any complications that may have arisen within six weeks of the procedure, the researchers had concluded that any major complications are extremely rare. It was recorded by this very research that the complications that can be classified as major, occur in less than a quarter of a per cent of the time, and it is no more than the complications involved in a simple procedure of colonoscopy.
The Act also laid down termination of pregnancy on the advice of two medical practitioners between well 12 to week 20 of gestation. This period has now been moved in order to facilitate easy terminations without undue delays or harassment of the woman seeking such abortions. Now, such approval of two medical practitioners shall only be required for the termination of pregnancy between week 20 to week 24. But, such special extension of upper limit shall only lie in special cases such as “special categories of women” which may include rape survivors, victims of incest, differently-abled and minors.
A special condition has also been laid down to keep minimum discretion in the hands of medical practitioners to prevent any exploitation. The Bills provides for specific norms that shall be laid down by the central government in the form notification in for the medical practitioner whose opinion is required for abortion.
The 1971 Act provided especially for an unwanted pregnancy as a consequence of a failed contraception method. Special immunity was provided for such women and it was laid down the continuation of such pregnancy shall be considered a grave injury to the mental health of a woman and thus, such provisions as applicable in the case of a pregnancy causing health risks to a woman will be applicable to pregnancies that were a consequence of failed contraception. In other words, such pregnancies shall be covered within the ambit of the Act. But, such provision had a very limited ambit as it only took into consideration the relations between a married woman and her husband while talking about the use of contraception. This implied that if there is pregnancy as a consequence of a failure of contraception between two partners who are not married, it shall not be covered within the ambit of this provision.
In order to widen the impact of the Act, the new Bill of 2020 has sought to amend the use of “any married woman or her husband” to “any woman or her partner”.
A special Medical Board shall also be constituted under the new Bill shall diagnose any substantial foetal abnormalities. On identification of such abnormalities, the cap put on the upper limit for termination of pregnancy shall not lie. This provides a safeguard for parents who may be unwilling or incapable of maintaining and rearing a child with disabilities or special needs. Such board shall consist of a gynaecologist, paediatrician, radiologist, and any other number of members, as may be notified by the state government.
Another notification that shall be issued by the Central Government will consist of all the powers and duties of such a Medical Board and the diagnosis they make.
As aforementioned, earlier notification of 1975 laid down that there shall be privacy for a woman seeking to terminate her pregnancy and the medical professionals must abide by their confidentiality. In the new Bill, it is proposed that information such as the woman’s particulars must not be revealed except to a person who may have the authority of law. The new Bill also seemed to make contravention of this provision punishable with up to one year of imprisonment, fine or maybe even both.
This move not only ensures the privacy of a woman who terminates her pregnancy but also provides her with the safety from any ill-consequences that may follow if such sensitive information regarding her is released. It also empowers a woman more by giving her an absolute right to make decisions regarding her body and the child that she will carry and rear.
The Bill seeks to give increasingly more autonomy to a woman who terminates her pregnancy and this is a small step towards not just ensuring sound physical and mental health but independence of women in the country.
 Population growth (annual %) – India, The World Bank Data, https://data.worldbank.org/indicator/SP.POP.GROW?locations=IN
 K.D. Guar, Abortion and the Law in Countries of Indian Subcontinent, ASEAN Region, U. K., Ireland and U. S. A., 37 JILI 3, 4 (1995).
 Section 2(ii)(e) of Medical Termination of Pregnancy Act (Amendment), 2020.