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MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021: A COMPARITIVE STUDY

INTRODUCTION

By the Medical Termination of Pregnancy Act (MTP), 1971, a woman is entitled to determine whether her pregnancy is to proceed or to cease. It is a liberal regulation that allows licensed physicians to stop pregnancy for social and sociomedical purposes and the mother’s potential hazards. Women were spared “inflicted conception” and “forced maternity.”

The reforms introduced in the Medical Termination of Pregnancy Amendment Bill aim at increasing women’s access to clinical, eugenic, social, and humanitarian care for secure and legal abortion.

The modifications include replacement of specific subsections, the inclusion, in particular provisions of the original abortion act, of specific additional conditions to raise the maximum time date for termination of pregnancy under certain circumstances, and to improve access under strict requirements for comprehensive abortion, without jeopardizing safety in the area of service and efficiency.

In March 2021, Rajya Sabha voted in favor of the Medical Termination of Pregnancy Bill (Amendment). The lower house in 2020 passed the Bill. This is a vital bill aimed at enhancing women’s reproductive rights in India. You can read this article concerning the Medical Termination of Pregnancy Bill, 2021, and the original Act of 1971.

BACKGROUND

After careful consultation with different parties and many ministries, the ministry of health and family welfare submitted changes to the termination of the pregnancy law. The change seeks to improve women’s access, bearing in background improvements in healthcare technologies, to secure abortion facilities.

A number of applications were recently presented to the Court, demanding leave on the grounds of a fetal abnormality or pregnancy caused by sexual assault against women for abortion of pregnancies at a gestational age above the current allowable cap. 

SIGNIFICANCE

There are varying viewpoints about whether or not abortions can be permitted. According to one perspective, ending a pregnancy is the pregnant woman’s decision and a part of her reproductive rights. The other is that the state has a duty to defend life, so the fetus should be protected as well. Countries worldwide set different standards and time limits for allowing abortions, depending on the health of the fetus and the danger to the pregnant mother.

The Pregnancy Termination Medical (Amendment) Act is designed to protect women’s welfare and well-being. The expected rise in the maternity cap ensures that women who need to stop their pregnancy have privacy, autonomy, secrecy, and fairness.

The Medical Termination of Pregnancy (MTP) Act of 1971 is being amended by this bill. In India, this Act regulates abortions. It was revised twice, in 1975 and 2002. Abortion was illegal in India before the passage of this law, according to Section 312 of the Indian Penal Code.

According to a survey, approximately 67 percent of countries worldwide (that have a federal law governing pregnancy) need at least one health care provider’s approval before an abortion can be performed.  The World Health Organization does not recommend terminating a pregnancy until a certain amount of time has passed.

The MTP Act demanded modifications because it was obsolete in many ways and was unaware of the new advances in the industry. Present modern engineering enables the use of early pregnancy abortions.
In addition, it was regressive to provide that minors with abortions had to have informed consent from parents/guardians. This provision has been eliminated under the current law.

Many quacks and unskilled individuals in illicit abortion clinics endangered many women’s lives because of the gaps in the older legislation. New amendments are intended to address these concerns and bring more abortions to the organized sector, where trained physicians can take decisions and administer legal abortions.
The reform was passed in Parliament after the previous Act raised specific questions that have now been resolved.

KEY POINTS IN THE AMENDMENT PROVISIONS

Termination attributable to contraceptive method or device failure:

  • A married woman may terminate a pregnancy up to 20 weeks after the failure of a contraceptive method or system under the Act. Unmarried women may even end a pregnancy for this purpose under the Amendment Act.

Boards of Medicine:

  • Any state government must establish a Medical Board.
  • The members of these Medical Boards will be
  1. a gynecologist,
  2. a pediatrician,
  3. a radiologist or sonologist, and
  4. every other number of members as determined by the state government.

Anonymity:

  • A woman’s “name and other particulars of a woman whose pregnancy has been terminated shall not be disclosed,” except to an individual approved under current law.

Opinion Required for Pregnancy Termination:

  • One licensed medical practitioner’s opinion (rather than two or more) is required for pregnancy termination up to 20 weeks of gestation.
  • From pregnancy to birth, the fetal growth stage is known as gestation.
  • Two licensed medical practitioners’ opinions on terminating a pregnancy that is 20-24 weeks gestation.
  • If pregnancy is discontinued after 24 weeks due to significant fetal anomalies, the opinion of a state-level medical board is required.

Increasing gestation period for the special categories:

  • Inclusion of rape perpetrators, victims of incests, and other marginalized women (as distinctly females, minors), etc., in the MTP revisions, the upper gestation limit of 20 to 24 weeks is improved.

PERKS OF THE BILL:

Here are the intended advantages of approving the changes.

  • Unwanted births may be aborted on safe and lawful terms under the revised legislation for victims of abortions, disabled and minor women.
  • Only after the 20th week of pregnancy are several fatal anomalies observed. These will be covered under the revised provisions.
  • The Bill also extends to unmarried women and thus deletes the regressive provision in 1971 which states that unmarried women cannot request an abortion because they are not contraceptive.
  • Unmarried women will have the right to end an illegitimate pregnancy lawfully as a measure to protect their identity, and women will be granted abortion rights.

CHALLENGES:

Medical Boards:

  • The current healthcare budgetary allocation makes it both financially and functionally challenging to establish a board around the country.
  • Pregnant women in rural parts of the state have difficulty getting to the board.
  • There is no time limit for responding to requests.
  • Before allowing a woman to end her pregnancy, the board will refer her to a series of tests. This is an affront to one’s right to privacy and to live with dignity.

Male child preference:

  • Behind its illegal status, a male child preference holds sex determination centers in operation.
  • There are fears that a more restrictive abortion statute could exacerbate this.

Change in Decision:

  • Considerations such as personal choice, abrupt changes in conditions (because of separation from a spouse or death), and family abuse are not considered in existing legislation.

The fetus’s viability:

  • The ‘viability of the fetus has long been a central feature of the legality surrounding abortions.
  • The time during which a fetus is capable of surviving beyond the womb is referred to as viability.
  • This’ viability ‘inevitably increases as technology advances, equipment is upgraded, and skilled clinicians are in charge of patient treatment.
  • Currently, viability is estimated to be about seven months (28 weeks), but it can happen sooner, even at 24 weeks.
  • As a result, late pregnancy termination could jeopardize the fetus’ viability.

Shortage of Doctors:

  • Registered doctors are few, and, in view of the current legislation, women still face a loss of access to legal abortions.
  • The Act states that abortion shall only be conducted by doctors who have a gynecological or obstetrical specialization. In urban health centers in remote areas, there is a 75 percent lack of these physicians, and it will prove to be impossible for pregnant women to receive legal abortions.

Partner:

  • The law claims to be progressive and refers to the term partner as a husband. However, it does not grant the woman complete independence, as a written petition to terminate the child is needed after 24 weeks. The government must also reflect on this.
  • The question of abortion also has an ethical viewpoint. The public believes that the state must protect all life, including the unborn fetus’ life.

ANALYSIS OF OTHER COUNTRIES REGULATIONS:-

Many nations, along with some other considerations, allow abortions up to a period.

A pregnancy in the UK:

  • For instances, may be ended at any time, for example:
  1. protecting the existence of a woman;
  2. preventing substantial and permanent damage to a woman’s physical or mental well-being, or
  3. preventing a severe disability for the infant. In addition, her current or fairly predictable environment can be weighed when assessing the damage to women’s physical or mental health.

In South African countries:

Pregnancy will be stopped at the women’s request for up to 12 weeks and between 12 and 20 weeks if:

  • the pregnancy presents a danger to the woman’s psychological or physical health;
  • risk of fetal defects and
  • a risk of rapes; or
  • a chance of continued pregnancy affecting the women’s socio-economic conditions. If the woman’s or fetus’ life is at risk or fetal anomalies are likely, it is often allowed after 20 weeks.


Few nations, including the US, have different national laws on abortion.

  • The Supreme Court of the United States ruled in 1973 that abortions were lawful.
  • However, in most circumstances, some states, such as Alabama, prohibit abortion until a significant danger to the mother’s health is present or the fetus is fatal.
  • Any countries ban abortion after a fetal heartbeat or six weeks earlier (Georgia, Kentucky). Some states sanction abortions up to twenty-five weeks (New York) and up until the fetus can survive beyond the womb (California, Rhode Island).

Iraq, Philippines, Jamaica, Suriname, Egypt, Senegal, etc.

  • Totally forbidden.

India:

The Indian Penal Code, 1860, considers knowingly ending a pregnancy as a criminal offense (IPC). The Surgical Termination of Pregnancy Act, 1971, was passed as an exception to the IPC to allow licensed medical practitioners to terminate such pregnancies. The Bill amends the Act to raise the upper limit for termination from 20 to 24 weeks for some types of women and to abolish it in cases of significant fetal anomalies.

CONCLUSION:

While the Medical Termination of Pregnancy Bill, 2020 is a step in the right direction, the government must ensure that the standards and standardized procedures used by healthcare facilities worldwide are practiced in clinical practice to promote abortions.
In addition, abortion must be determined based on the values of civil rights, sound research, and technological progress.

References:-

Author :

P. BHUVAN DEEPAK, Gitam School of Law