Women’s right to abortion is a stepping stone to gender equality. India’s advancement occurred when the Medical Termination Act of 1971 was brought to the forefront. Yet, abortion had been equated with criminality in Section 312 of the Indian Penal Code. As this section entailed, the woman would be deemed guilty if she wanted a voluntary abortion. The punishment, therefore, would extend up to 7 years.
On the other hand, the Medical Termination Pregnancy Act introduced in 1971, or Act No. 34, clearly highlights a registered medical practitioner could terminate that pregnancy under two conditions: the gestation period does not exceed twelve weeks and the gestation should not extend beyond 20 weeks, even if the pregnancy has crossed beyond 12 weeks.
The Shah Committee recommended in 1966 that abortion must be legalised and introduced the terminology of Medical Termination of Pregnancy. However, this Act did not bring under its purview Jammu and Kashmir. By this Act, two medical practitioners had the responsibility for terminating an unwanted pregnancy to cease if the gestation crossed 20 weeks. Of course, the opinion of a second medical practitioner is not deemed necessary when pregnancy has not exceeded beyond 12 weeks. Of course, under the terms of the Act, abortion could only be carried out under these circumstances:
Firstly, if the pregnancy has emerged as a threat to the mental well-being of the woman as a cause of rape, and secondly if methods of birth control have failed which could lead to severe mental injury. And it argues that if rape has occurred with a woman who is mentally challenged, it can lead to the child being born with abnormalities. However, it states that if a woman is above 18 years of age, consent was necessary to carry out the abortion. It was in 1997 that the Government of India assessed the usefulness of the Medical Termination Amendment Act, 2002, legalising the usage of mifepristone and misoprostol if the pregnancy is on seven weeks.
On 17 February, 2020, Dr Harsh Vardhan introduced the Medical Termination of Pregnancy Bill, which aimed at the amendment of the Medical Termination of Pregnancy Act, 1971, namely alterations in Sections 2, 3 and lastly 5. The new Bill clearly states that the opinion of the medical practitioner will be deemed the most significant in abortion. The medical practitioner will terminate the pregnancy if his/her opinion is that the pregnancy may be a risk to the life of the woman.
On the other hand, the approvals of two registered medical practitioners are necessary if the gestation period is 20 to 24 weeks. In the new the clause, termination of pregnancy is only applicable to special categories of women as specified by the New Amendment Bill which includes rape victims and differently-abled women. By this discourse, the notion of victimhood is espoused on the women.
However, the mental trauma that a rape survivor may undergo must be administered by justice and empathy. In 2017, a 16-year rape survivor’s plea was rejected by the Madhya Pradesh High Court for abortion who had a 33-week foetus. The upper-gestation period must be expanded, which the Bill does not take into account. The gestation period, therefore, limits the ability of the rape victim. The provision of “married woman or her husband” has been replaced by “woman with her partner” by the new Amendment Bill which is inclusive and broad.
Of course, the Bill allows the failure of contraceptives as a ground for abortion. However, the woman must establish her relationship with her partner by this above provision when she seeks to terminate her pregnancy. On the other hand, the gestation period can only be extended beyond 24 weeks if the woman has been diagnosed with foetus abnormalities. “The provisions of sub-section (2) relating to the length of the pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a medical board” .
The MTP Bill 2020 has brought under its purview the terminology of ‘registered health care providers’ which would permit practitioners of Ayurveda, Homeopathy as well as nurses to conduct abortions. Nevertheless, the clause of the Medical Termination of Pregnancy (Amendment) Bill propounds the constitution of Medical Boards which must include a Gynaecologist, a Pediatrician and Sonologist or a Radiologist by clause 2(C). However, women from marginalised sections of society would not have access to safe abortions as most medical practitioners are based in urban cities. The delays might continue in rural areas as the Medical Board decides whether the pregnancy can be terminated.
Indeed, a woman must justify why she seeks an abortion in the first place. However, the Bill highlights in Section 5(A) that “No registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by law for the time being in force” . This provision states that the woman’s privacy must be preserved. But the truth is that the autonomy of a woman to terminate a pregnancy is still determined by the Registered Medical Practitioner and the opinion of the woman is disregarded.