NEWS  The amendment to the abortion laws retains the notion that the state must intervene in what is a woman’s absolute right.

CONTEXT  Recent amendment by central government done to the abortion laws not only retains the traditional notion that the state must intervene and decide for women as to when and in what circumstances abortions may be carried out, but even the pathetic measures set out in the Medical Termination of Pregnancy (Amendment) Act 2021 are too little and have come too late.

MEDICAL TERMINATION OF PREGNANCY ACT, 1971

The Medical Termination of Pregnancy Act, 1971 (MTP) can be considered as a progressive act, as it came at the time, when abortions were a crime and the woman concerned and her doctor would invariably land up in jail.

The act allows for legal abortions in India with few restrictions. Under it:

• Section 3 put an outer limit of 20 weeks on the length of the pregnancy and required two doctors to certify that the continuation of the pregnancy would involve a risk to the life of the woman or grave injury to her physical or mental health or that there was a substantial risk that the child born would suffer from such physical or mental abnormalities as to be seriously handicapped.
• Rape cases, pregnancies occurring as a result of the failure of contraception have also been considered as valid reasons for abortion over the years.
• Section 5 created an exception to the 20 week limit whenever such an abortion was immediately necessary to save the life of the pregnant woman.

CONCERNS

• The Medical Termination of Pregnancy (Amendment) Act 2021 fails miserably on the main count while introducing few collateral progressive measures.
• The Act fails to recognise the absolute right of a woman over her body in taking decisions regarding abortions and reproductive health. It still reserves to the state the right to dictate to the woman that she cannot have an abortion at will.
• Even though the limit has been pushed back from 20 to 24 weeks, this comes with the same state conditionalities as before.
• 24 weeks is not rational given today’s technology where abortions can be done safely up to full term.

Medical boards are obstacles

• By far the biggest failure of the government lies in enacting section 3(2B) which requires the pregnant woman to approach a medical board in cases of substantial foetal abnormalities and where she has crossed the 24 week limit.
• These boards impose insurmountable obstacles to the woman seeking late abortions.
• First, what used to be an exchange between the pregnant woman and her gynaecologist who would take a decision as to safety, has now been replaced by a board of a minimum of three doctors. This is totally unnecessary and breaches her privacy.
• Second, and this is indicative of complete non-application of mind, the Act provides in section 3(2C) for a single board for a State.
• Given the millions of abortions taking place in India past the deadline, it is impossible for one board to handle all cases.
• Third, assuming multiple boards will be established, the records show that no State has the finances or the human resources to maintain the operation and functioning of these boards.
• Fourth, the right to seek termination is restricted to “such category of women as may be prescribed by rules”.

POSSIBLE IMPLICATIONS  

• It pushes women seeking abortions underground where terminations are carried out in unhygienic and dangerous places, and in horrific situations.
• Even today about 800,000 illegal and unsafe abortions are performed every year in India, many of them resulting in morbidities and death, while the governments remain indifferent to their woes.
• Given that the statutory provisions would not allow abortions beyond the set limits despite the availability of the technology to do so, several petitions are filed in the Supreme Court and the High Courts. This adds on to already overburdened judiciary litigations.

CONCLUSION

• The provision for Medical boards is totally unnecessary and an invasion of woman’s privacy.
• Pregnant women, should be left alone to consult their gynaecologist in late term pregnancies and carry out their abortion under the certificate of their own gynaecologist that the abortion can be performed safely. This is the trend worldwide and in the courts.
• The Indian government needs to wake up and educate itself on women’s emancipation worldwide.

Reference:

1. https://www.thehindu.com/opinion/op-ed/abortion-is-a-womans-right-to-decide/article34266999.ece