In the 50th year of the Medical Termination of Pregnancy Act, abortion in India is legal in certain circumstances and illegal in certain circumstances. Section 312 (“voluntarily causing a woman to miscarry”) of the Indian Penal Code criminalises the act of abortion and has set out a punishment of up to three years for commission of the offence.
The Medical Termination of Pregnancy Act, 1971 (MTP Act) creates an exception by laying down grounds under which medical termination of pregnancy is permissible. The preamble of the MTP Act reads: “…an Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.” Hence, it is a doctor-specific legislation, not giving women any right to abortion.
The government of India has notified the Medical Termination of Pregnancy (Amendment) Rules, 2021. The centre had previously amended the Medical Termination of Pregnancy Act, 1971, thus making this the second amendment in the 50-year-old history of the Act. The latest amendment modifies Section 3 of the Act to extend the upper limit for medical termination of pregnancy to 24 weeks, from 20 weeks, for certain categories of women which has now been defined by the notification of the Medical Termination of Pregnancy (Amendment) Rules, 2021.
The following categories of women have been permitted extension of gestational limit for medical termination of pregnancy:
- Survivors of sexual assault or rape or incest.
- Minors.
- Change of marital status during the ongoing pregnancy (widowhood and divorce).
- Women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)].
- Mentally-ill women, including mental retardation.
- The fetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped.
- Pregnant women in humanitarian settings or disaster or emergency situations as may be declared by the government.
The Medical Termination of Pregnancy (Amendment) Act, 2021, has further increased the limit for gestational limit for pregnancies that may be aborted on the advice of one “registered medical practitioner” from 12 weeks to 20 weeks and for pregnancies that may be aborted on the advice of two “registered medical practitioners” from 20 weeks to 24 weeks. Furthermore, it replaces the word “by any married woman or her husband” with the words “any woman or her partner” and has also introduced the establishment of medical boards comprising:
(i) A gynaecologist
(ii) A paediatrician
(iii) A radiologist or sonologist
(iv) Other members, as may be specified by the state government
The Medical Termination of Pregnancy (Amendment) Act, 2021, further mandates not to reveal the name and other details of the woman undergoing medical termination of pregnancy, except to the person authorised to know.
According to the National Family Health Survey (NFHS-4) conducted by the International Institute for Population Sciences (IIPS), more than 26% of abortions are performed by women at their homes, with no medical assistance by mid-wives, auxiliary nurses and dais.
These amendments would have come as a boon to many women, especially those women who have had to approach various High Courts and the Supreme Court for termination of pregnancy of rape survivors and women with foetal abnormalities, yet it does not go far enough, retaining the notion that the State must decide the circumstances under which termination of pregnancy should be allowed.
Recently, a 16-year-old girl from Jhajjar, Haryana, was found to be pregnant, having completed 23 weeks and six days of the gestation period. The parents of the girl kept the matter secret for two weeks before approaching the police. The parents of the girl subsequently approached the Punjab and Haryana High Court for the medical termination of pregnancy of the minor survivor. Justice Lisa Gill immediately ordered the Jhajjar civil surgeon to constitute a medical board to examine if the pregnancy of the minor survivor, which was at an advanced stage, could be terminated.
Within three days, the medical board submitted its report whereby it was stated that foetus had gained gestational age of 28 weeks, three days (=/- 2 weeks) and it was risky to abort. A crucial amount of time was lost between when the pregnancy was first discovered and the time she was examined by the medical board.
Similarly, the Delhi High Court was approached by a 31-year-old for termination of a 21-week pregnancy due to the petitioner’s foetus suffering from “nuchal edema & a bilateral cleft lip and palate” due to which there was a substantial risk that the child, if born, is likely to suffer from serious physical deformities.
Previously, in 2019, the woman had conceived a twin pregnancy. However, due to underlying complications, she delivered the children pre-maturely, with one child passing away even after prolonged treatment due to physical deformities, whereas the other child is still undergoing treatment for the past two years.
Justice Rekha Palli ordered AIIMS to constitute a medical board at the earliest and submit its report regarding the feasibility of the termination of the petitioner’s pregnancy. The board furnished its report after 13 days, stating further tests are required to be carried out in order to rule out any genetic disorders and the turnaround time to receive the reports of the tests being suggested as about four to six weeks, by which time, the gestation of the petitioner would be at a quite advanced stage for medical termination of her pregnancy.
Justice Palli allowed the medical termination of pregnancy, keeping in view the fact that the medical board had not disagreed with the findings and observations made in the ultrasound obstetrics report, whereby the petitioner’s foetus was diagnosed with “nuchal edema & a bilateral cleft lip and palate”. Even though, the termination of pregnancy was allowed in this case, it happened after a significant delay of 18 days, since the discovery of the foetal abnormalities. Furthermore, she was helped by the fact that she had approached the Court early, when she was 20 weeks and five days pregnant, otherwise such a delay would have made it risky to terminate the pregnancy.
On March 16, former health minister Dr Harsh Vardhan during a Rajya Sabha debate had stated: “There is need for increasing access of women to legal and safe abortion services in order to reduce maternal mortality and morbidity caused by unsafe abortions.”
The debate about a woman’s right to abortion has garnered worldwide prominence in the wake of a new law called the “Heartbeat Act” that had come into force in Texas, United States, whereby abortions have been banned after a heartbeat is detected in the foetus, making abortion after about six weeks illegal, further it incentivised people to sue anyone suspected of helping a woman obtain an abortion.
On October 7, US District Judge Robert Pitman temporarily blocked the Heartbeat Act, calling it a “offensive deprivation” of a constitutional right. “From the moment S.B 8 (Heartbeat Act) went into effect, women have been unlawfully prevented from exercising control over their rights, their lives, in ways that are protected by the constitution; this court will not sanction one more day of this offensive deprivation of such an important right,” opined Judge Pitman who was appointed by former US President, Barack Obama.
—By Shashank Rai and India Legal News Service