Background: In India, termination of pregnancy is regulated under the Medical Termination of Pregnancy Act, 2021. If the case doesn’t come under the ambit of the legislation, then either a person has to go for illegal abortion or forcefully bear the child. The act proves beneficial, and society thinks it to be progressive. However, the food for thought is that even in the 21st century, a woman still has no absolute say about her body and whether she wants to continue carrying the child.
In this paper, my main attention will be on the effect of the MTP Act 2021 on women in India and their reproductive rights. Alongside this, I would try to come up with some suggestions that would be helpful to keep the legislation flexible and prevent it from becoming old-fashioned.
In general parlance, medical termination of pregnancy is also referred to as abortion or termination.
Merriam-Webster define abortion as “the termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or foetus”
According to Cambridge Dictionary, abortion is “the early, intentional or unintentional ending of a pregnancy when a baby or a young animal is born too early and dies before it is fully developed.”
Simply put, medical termination of pregnancy is a procedure that uses medicine or a surgical means to end a pregnancy. Earlier, abortion was not at all accepted in any case. Roe v. Wade 410 US 113(1973) is the landmark case that legalised abortion. Not only this, the rate of illegal abortions and deaths dropped dramatically in the years following the judgement.
There are majorly two types of abortion and depend upon the causes of miscarriage.
- Spontaneous abortions or miscarriages may occur for many reasons, including disease, trauma, genetic defect, etc.
- Induced abortions are performed for reasons that can be classified in four broad heads: for rape/incest victims, for the mental well-being of the mothers, if a foetus is detected with abnormalities, or to prevent a birth for social or economic reasons. There are numerous kinds of abortion techniques, and the option depends on the duration of the pregnancy. A person can terminate pregnancy either by taking medication or going through surgery.
Reproductive rights of Women
Reproductive rights mean an individual’s capability to decide whether to reproduce and make independent and informed choices regarding reproductive health. In other words, they are the legal rights and freedom relating to reproduction and reproductive health that vary from country to country.
These rights formed a part of – the Universal Declaration of Human Rights 1948, related to sexual and reproductive matters since 1968.
Para 7.3 of the International Conference on population and development (ICPD) 1994 states, “Reproductive rights embrace certain human rights that are already recognised in national laws, international human rights documents and other consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes their right to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents”
Similarly, the Beijing Declaration, 4th World Conference on Women states, “The explicit recognition and reaffirmation of the right of all women to control all aspects of their health, particularly their fertility, is basic to their empowerment”.
The reproductive right was not always constitutionally protected. It remains a controversial issue which is still developing. These rights fluctuate over time due to various social norms, religious beliefs, etc. Any society uses the preventive measure on abortion to regulate immoral sexual behaviour.
The Medical Termination of Pregnancy (Amendment) Act, 2021: Critical analysis
In the present time, when a developed nation like the USA is amending abortion laws to make them stricter and prevent couples from using such measures, India is trying to come up with amendments that would make it more accessible.
In India, anciently, abortion was regulated with Section 312-316 of the Indian Penal Code,1860. Under Section 312 it is stated that whosoever voluntarily causes a woman with a child to mis-carry shall be punished with imprisonment, fine, or both. This also includes if the woman does so intentionally. The only exception is for miscarriage caused in good faith to save the woman’s life. Tremendous progress was made when the legislature came up with the Medical Termination of Pregnancy Amendment Act 1971, which proved to make the laws more lenient and meet the expectations of modern society regarding the basic human right of a woman to have control over her body.
The most recent legislation on the abortion issue is the Medical Termination of Pregnancy (Amendment) Act of 2021. This act is the upgradation of the Medical Termination of Pregnancy Act of 1971. Dr Harsh Vardhan tabled the bill, Ministry of Health and Family Welfare. The act aims to extend the upper gestation limit for legal abortion and has made a few crucial changes which are certainly welcomed. It is widely seen as a significant contribution to women’s rights.
- The act allows abortion for up to twenty weeks based on the judgement of one medical practitioner.
- Two doctor’s consent is required to terminate pregnancies between 20-24 weeks. But only special categories of women, such as rape/incest victims, minors, differently abled women, and minors, are granted such an extension of the gestation period.
- The state-level medical board will evaluate whether abortions after twenty-four weeks are permissible based on whether there are significant foetal abnormalities.
- Abortions can be performed by specialists who specialise in obstetrics and gynaecology.
- The name and other details of the woman whose pregnancy has been terminated shall not be revealed to anyone other than the one authorised by the law.
- The writ petition has to be filed if abortions are requested to terminate pregnancies resulting from rape and a gestation period of more than 24 weeks.
- A pregnancy may be terminated up to a period of 20 weeks by a married woman if a contraceptive method or device fails. The amended act has also allowed unmarried women to terminate a pregnancy under such circumstances.
Impact of the Act on Indian women
The act has not only affected the health of the mother and the child. Instead, it has a significant impact on the status of women socially, politically, legally as well as economically. Some of the noticeable effects are discussed here.
Rape/incest victim- According to National Crime Records Bureau (NCRB), rape is the 4th most common crime against women in India. In the 2021 annual report of NCRB, the number of rape cases recorded was over 31 thousand. There have been several instances where a woman gets pregnant due to rape. In such cases, the woman prefers to abort the baby rather than live with proof of her shame. The MTP Act of 2021 has given women a sufficient period of 24 weeks of gestation to abort the pregnancy. It also leaves a scope of termination even after 24 weeks by filing a writ petition. This will decrease the cases of illegal abortion and will ensure the safety of both the mother and the baby.
Ensure privacy- The act has aimed to ensure the right to privacy for the woman who wants to go through an abortion. The show clearly states that the woman’s identity is not to be revealed to anyone other than the ones authorised by the law.
Progressive- The act is progressive in nature. Contraception failure was a valid reason for any married woman for an abortion. The previous act’s regressive provision kept unmarried women from citing this reason for a medical termination. The MTP Act 2021 has overcome this by -allowing unmarried women, to medically terminate pregnancies while also protecting their reproductive rights of the woman.
Foetal anomalies- the foetal anomaly scan is performed during – the 20th and 21st weeks of pregnancy. A foetal anomaly which is discovered might change the wanted pregnancy into the unwanted one. So, the provision of the act accepts that if abnormalities are found, the pregnancy can be terminated even after 20 weeks of gestation. State medical board also works to find anomalies and help pregnant women to get abortions.
- The state interference in this matter should be reduced to reduce illegal pregnancy termination. Every abortion should be allowed, and the only criteria should be that it must not affect the health of the female. This would result in a drastic decrease in maternal mortality rate and ensure safe terminations. Across the globe, countries set varying criteria and time limits for allowing abortion based on foetal health and risk to the pregnant woman.
- The act allows abortion after twenty-four weeks only if there is a substantial foetal abnormality diagnosed by the state medical board or in the case of rape/incest victims. That, too, is possible only through a writ petition. This would also increase the illegal abortion rate. The abnormalities are only visible after 20 weeks leaving a minimum period for abortion. So, in such a case, people will try to defy the law. In such a case, the legislation should be more tolerant towards such cases, and the criteria of a writ petition should be removed. It must be realised that the role of courts in determining whether a woman should or should not be able to afford an abortion has to be reduced.
- The act provides for abortion to be performed only by doctors specialising in gynaecology and obstetrics. There is a 75% shortage of doctors with such qualifications in community health centres in rural India. Hence, in rural areas, pregnant women will continue to find it difficult to approach the facilities for safe abortion. In my opinion, the qualifications should be brought down, and there must be an improvement in the rural healthcare sector.
- In a report by IndiaSpend published in September 2020, abortion is still looked down upon even by doctors. Doctors have been reported to refuse abortions as they find it immoral or they ask women to bring their parents or their spouse along for the procedure. So, in order to overcome this problem, social awareness must be brought among the masses.
- Despite the extension of the abortion deadline in India, it still doesn’t recognize the choice of women. Definitely, abortion is legal but only based on needs and not rights. So, the recognition of women’s choice and agency regarding abortion is of immense importance. Honouring individual freedom, safety and reproductive rights of women are the major pillars in the progress of society.
Analysis of the case of Mahima Yadav Vs Government of NCT of Delhi and Ors (2021)
Facts: In the mentioned case, the petitioner has filed the petition to get permission to terminate her pregnancy medically. The provisions of the MTP Act of 1971 were invoked. Although the petitioner’s foetus was more than 24 weeks old, the counsel appearing on behalf of the appellant contends that she should be permitted to carry out the termination because of anomalies of the foetus and risk to the petitioner, who is already suffering from severe hearing issues.
Judgement by the court: according to the reading of section 3 of the amended MTP Act, the pregnancy can be terminated even after 24 weeks in case of substantial abnormalities.
The Medical Superintendent (MS) of AIIMS was commanded by the court to designate a Board of Doctors to examine Mahima Yadav. Following the examination, the report was provided, and it found that allowing the foetus to mature would harm both the mother and the child. It was found that the petitioner was a heart sufferer and had been prescribed blood thinners. The medical board believed that the blood thinners would prove to be a risky prognosis concerning immediate and long-term results.
The court looked into various similar matters and found that the recent amendments of the MTP are per the decisions taken earlier in cases like Shaikh Ayesha Khatoon vs Union of India and ors (2018), Nisha Suresh Aalam v. Union of India and ors (2018), Priyanka Shukla v. Union of India and ors (2019), etc. in all these case, the abortion was allowed beyond the set period of 20 weeks prevailing at that time. Hence, the court found the amendments confirming these cases and the precedents set in these cases.
Reviewing the judgement: In my opinion, the high court allowing the petitioner for abortion beyond 24 weeks also set a good precedent for upcoming cases. The amendment does not provide for termination after 24 weeks in every case but only in the case where foetal anomalies are found as prevalent in this case. The amendment is in congruence with the earlier precedents by various courts.
Legal recognition of the same is essential as it goes a long way in the emancipation of women from the age-old fear of abortion being considered sinful and criminal. Even after making the laws progressive with the changing times, it triggers a thought that the woman who has to bear the child doesn’t have complete control of her body. Her choice of whether to keep the baby or not is regulated by the law or society and allows unbridled intervention by courts in a matter that should strictly fall within the medical purview. It will significantly impact empowering women and instilling a belief that they can make decisions independently without being dependent on third parties. This is especially important in developing and still-slightly-socially-backwards countries such as India.
 Abortion definition & meaning Merriam-Webster, https://www.merriam-webster.com/dictionary/abortion (last visited Nov 5, 2022)
 Abortion Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/abortion (last visited Nov 5, 2022)
 Definition of Reproductive Health (from ICPD, 1994) SlideServe, https://www.slideserve.com/ella/definition-of-reproductive-health-from-icpd-1994 (last visited Nov 7, 2022)
 Beijing Declaration and platform for action, Beijing +5 political declaration and outcome UN Women – Headquarters, https://www.unwomen.org/en/digital-library/publications/2015/01/beijing-declaration (last visited Nov 7, 2022)
 Section details India Code, https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=46077§ionno=312&orderno=350 (last visited Nov 6, 2022)
Author: Kriti Gupta