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Why We Must Be Critical Of The Medical Termination Of Pregnancy (Amendment) Bill, 2020

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On 16th March 2021, the Upper House of the Parliament (Rajya Sabha) in India passed the Medical Termination of Pregnancy (Amendment) Bill, 2020. It was approved in the Lok Sabha on 17th March 2020.

A new set of amendments have been added to this nearly five-decades-old law. The new Bill includes several “progressive” provisions to aid rape victims, underage or ill women to terminate an unwanted pregnancy legally.

In India, abortion has been allowed in limited circumstances since the Medical Termination of Pregnancy (MTP) Act 1971 was passed, creating an exception to the offence of abortion under the Indian Penal Code, 1860 that rendered voluntary termination of pregnancy a criminal offence.

A pregnant woman who miscarries could be sentenced up to 7 years in prison, made to pay a fine or both. Sadly, this Bill fails to measure up to the existing reproductive rights jurisprudence developed by the Supreme Court of India and the fundamental rights to autonomy, bodily integrity, and privacy.

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The MTP Act 1971 sets the gestational limit for abortion at 20 weeks, beyond which abortions may only be performed when there is a risk to the pregnant person’s life, barring a court order to the contrary. However, even within this limit, doctors are often hesitant to provide abortion due to fear of investigations and prosecution.

This results from the criminalisation of abortion under the Indian Penal Code and confusion surrounding the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 and the Protection of Children from Sexual Offences (POCSO) Act, 2012. These barriers to safe abortion access have resulted in numerous litigations across the country.

The Pratigya Campaign for gender equality and safe abortion study showed that from 2016 to 2019, 194 women petitioned courts seeking approval for abortion; 40 of these were for pregnancies below 20 weeks.

In 2003, the rules to the MTP Act were amended to conditionally allow certified providers, outside registered facilities, to provide medical abortion (MA) services up to seven weeks.

Out of the 15.6 million abortions that occur annually in India, 81% are done using MA. While the greater availability of MA pills has increased access to abortion, the regulatory framework remains poorly implemented. Medical abortion is a safe and non-invasive method.

However, the government has failed to ensure that a sufficient number of public healthcare facilities are equipped to provide abortion services; thus, the majority of abortions are being sought in the private sector. This means an increase in costs, which can be prohibitive for marginalised groups, specifically those already facing barriers to healthcare access due to caste, religion, age and other factors.

Unfortunately, the new amendments do nothing to ease these barriers and help a pregnant woman/person.

First, it reflects the heteronormative-patriarchal understandings of family planning as a means of population control rather than an exercise of reproductive autonomy. It does little to advance the rights of or recognise the agency of a pregnant women/person.

Second, the amendments do not recognise abortion at will for any stage of the pregnancy, despite evidence that medical abortion is safe and non-invasive. Instead, the Bill continues to require doctors’ approval for abortions and limits the circumstances under which this approval can be given.

An important gain from these amendments is the relaxation of the requirement; only one doctor is needed to approve abortions for pregnancies up to 20 weeks instead of the earlier requirement of two.

However, the pool of providers remains unchanged. There is a need to widen the provider base and allow for mid-level provision – by AYUSH practitioners, staff nurses, medical officers and auxiliary nurse/midwives – of abortions up to 12 weeks, based on guidance by the World Health Organization.

Third, while the 2020 Bill extends contraceptive failure as a ground for abortion to any “woman or her partner” – as opposed to only married women – the inclusion of the term “partner” suggests that women will still have to cite relational grounds when they seek abortions.

This provision will exclude large numbers of single women, especially from marginalised groups, such as sex workers. Additionally, this provision continues to use “woman” and excludes transgender, intersex and gender-diverse persons.

Fourth, the extension of the gestational limit beyond 24 weeks is available only for pregnant women/persons with diagnoses of foetal anomalies. The foregrounding of such an ableist and paternalistic framework within which to expand abortion access needs to be interrogated. Eugenic policies have, throughout history, targeted vulnerable groups. Abortion access should be within a framework of autonomy and self-determination rather than focusing on specific grounds.

The Nairobi Principles on Abortion, Prenatal Testing and Disability recognised that there is “no incompatibility between guaranteeing access to safe abortion and protecting disability rights, given that gender and disability-sensitive debates on autonomy, equality and access to health care benefit all people”.

Furthermore, the amendments categorise only those whose pregnancies result from sexual violence as legitimate claimants to abortions beyond 20 weeks, thus creating a hierarchy of “victimhood”. They also set the gestational limit for them at 24 weeks. Compelling a person to carry a pregnancy to term is a violation of their right to life and dignity, especially when the mental trauma resulting from the sexual violence is immense, as reflected in the 1971 MTP Act itself.

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The 2020 Bill also mandates third-party authorisation for abortions post 24 weeks through the constitution of Medical Boards with at least five experts. Most specialists are concentrated in urban areas. Hence, seeking authorisation from these Boards will result in substantial costs and delays for marginalised persons, especially those in rural areas.

As we noted earlier, this will disproportionately impact groups such as Dalits, and Adivasis, for whom the structures of caste and class already act as barriers to accessing quality healthcare.

Finally, the confidentiality clause in the 2020 Bill allows disclosure of the pregnant person’s details to persons “authorised by law”, which violates the right to privacy.

In short, this bill is doctor-centric and over-medicalises abortion, strip a pregnant person of their right to bodily and decisional autonomy vesting the decision to abort with the state, does nothing to be more inclusive of marginalised people who need safe access to abortion, still needs citing of relational grounds in cases of contraceptive failure, use the word “partner” not husband as a gesture of tokenism, serving as a distraction from the underlying heteronormative family structure that this serves.

Most importantly, it still doesn’t recognise “abortion at will” in ANY stage of the pregnancy. So yes, this may be slightly better, but in no way a “Progressive Bill”.

The Indian Supreme Court has developed strong jurisprudence on reproductive rights. In the landmark privacy judgment, Justice Chandrachud stated that reproductive choice should be read within the personal liberty guaranteed under Article 21 of the Indian Constitution.

The MTP Amendment Bill 2020 also articulates the need to ensure “dignity, autonomy, confidentiality and justice for women who need to terminate a pregnancy”. However, the amendments do not translate into an actual shift in power from the doctor to the person seeking an abortion. Thus, abortion remains a conditional provision and not an absolute right.

The long journey of legislating access to safe abortion that started in 1971 can truly be said to conclude only when India decriminalises abortion. Meanwhile, there is a need to create a rights-based legal framework on abortion that is in line with constitutional values and India’s international human rights law commitments.

The struggle continues – for a law that upholds the rights to equality and autonomy and for one that can transform the ecosystem within which people can exercise their full range of reproductive rights, and particularly their decisional autonomy to seek abortions.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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