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.
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.
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.