INTRODUCTION

“In late January 2020, the Union Cabinet amended the 1971 Medical Termination of Pregnancy
(MTP) Act allowing women to seek abortions as part of reproductive rights and gender justice.
The amendment also places India in the top league of countries serving women who wish to
make individual choices from their perspectives and predicaments.

The amendment has raised the upper limit of MTP from 20 to 24 weeks for women including
rape survivors, victims of incest, differently abled women and minors. Failure of contraception is
also acknowledged and MTP is now available to “any woman or her partner” replacing the old
provision for “only married woman or her husband.” The new law is forward looking,
empathetic and looks at a very sensitive issue with a human face.

According to Section 3 (2) of the MTP Act, 1971 a pregnancy may be terminated by a
registered medical practitioner:

 Where the length of the pregnancy does not exceed twelve weeks, or

 Where the length of the pregnancy exceeds twelve weeks but does not exceed
twenty weeks. In this case, the abortion will take place, if not less than two registered
medical practitioners are of opinion, that the continuance of the pregnancy would involve
a risk to the life of the pregnant woman (her physical or mental health); or there is a
substantial risk that if the child were born, it would suffer from some physical or mental
abnormalities to be seriously handicapped.

One of the criticisms of the MTP Act, 1971 was that it failed to keep pace with advances in
medical technology that allow for the removal of a foetus at a relatively advanced state of
pregnancy. The original law states that, if a minor wants to terminate her pregnancy, written
consent from the guardian is required. The proposed law has excluded this provision. Thereby,
the extension of limit would ease the process for these women, allowing the mainstream system
itself to take care of them, delivering quality medical attention.”
 NECESSITY FOR THE AMENDMENT

“Currently, women seeking to terminate the pregnancy beyond 20 weeks have to face the
cumbersome legal recourse. This denies the reproductive rights of women (as abortion is
considered an important aspect of the reproductive health of women). Obstetricians argue that
this has also spurred a cottage industry (kind of informal industry) of places providing unsafe
abortion services, even leading to the death of the mother.
As a result, a 2015 study in the India Journal of Medical Ethics noted that 10-13% of maternal
deaths in India are due to unsafe abortions. This makes unsafe abortions to be the third-highest
cause of maternal deaths in India.”

PROMINENT FEATURES OF THE BILL

“The Bill seeks to amend Medical Termination of Pregnancy (MTP) Act, 1971. The Bill
proposes the requirement of the opinion of one registered medical practitioner (instead of two or
more) for termination of pregnancy up to 20 weeks of gestation (foetal development period from
the time of conception until birth). It introduces the requirement of the opinion of two registered
medical practitioners for termination of pregnancy of 20-24 weeks of gestation.

It has also enhanced the gestation limit for ‘special categories’ of women which includes
survivors of rape, victims of incest and other vulnerable women like differently-abled women
and minors. It also states that the “name and other particulars of a woman whose pregnancy has
been terminated shall not be revealed”, except to a person authorised in any law that is currently
in force.”

CRITICAL ANALYSIS

“India’s move comes at a time when the landmark Roe v. Wade in the Supreme Court of the
United States (US) is under scrutiny. That 1973 judgment protects a pregnant woman’s liberty to
decide whether or not to have an abortion without needless government restrictions. A historic
piece of legislation, it served as a beacon of hope for women around the world. Roe v. Wade is
now shaking at its roots as a conservative US Supreme Court wants doctors performing abortions
to get admitting privileges from a nearby hospital.

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American women rightfully worry that the government could ring fence their options. A decision
is not expected until later this year and stakes are high. The European Court of Human Rights
has never spoken out on the question of abortion and whether or not it should be legalised. In
fact, Ireland, a member of the European Council, legalised abortion only in 2018.

According to Union Cabinet Minister for Textiles and Women and Child Development Smriti
Irani, India will now stand amongst nations with a highly progressive law which allows legal
abortions on a broad range of therapeutic, humanitarian and social grounds. It is a milestone
which will further empower women, especially those who are vulnerable and victims of rape”.

The Indian amendment says there is no limit for gestational age in case of fetal abnormalities.
This addresses maternal mortality and morbidity arising from unsafe abortions. Women will also
be spared the stress and agony of seeking permissions from courts as time runs out on them. The
amendment clarifies the role of practitioners who hesitate to intervene in cases of rape and incest
survivors.

Framing is key in public health. Frames decide what is at stake, who is responsible and where
solutions can come from. Critics say amendment does not go far enough. Their principle concern
is absence of scale in the provider base. The amendment is suitably large allowing for the
inclusion of changes as the dialogue frames its parameters. Framing is key in public health.
Frames decide what is at stake, who is responsible and where solutions can come from. Gender
justice, reproductive health, maternal health and a woman’s right to her body are issues that need
special attention because what is at stake is not just the welfare of women but also that of entire
societies.

Public health ground realities in India differ vastly from state to state. What is normal in Kerala
(response to Nipah) and Coronavirus cannot be said for most Indian states where data is patchy.
The first large scale study on abortions and unintended pregnancies conducted by The Lancet in
2017 said one in three of the 48.1 million pregnancies in India end in an abortion with 15.6
million taking place in 2015.

Abortion laws rarely address investments and resources because data gathering is not
standardised. Most Indian women (and men) go to government hospitals or health care centres
for family planning advice including MTP. Since health is a state subject, the enabling aspects of

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the amendment, especially data gathering, between New Delhi and the states cannot be
underestimated.

Abortion laws rely essentially on deciding when life begins and societies will always debate this.
At what point does the foetus’ life become worthy of protection? After how many months is it
justified to restrict a woman’s right to MTP? There is no one answer and proponents of anti-
abortion laws, who believe that life starts at fertilisation, have just strong an argument as people
who believe it does not.

That is why we need laws. They do not always reflect values of a society but in the presence of
uncertainty, laws have to provide a frame within which people can navigate knowing with
certainty what is legal and what is not. This makes the point that the limit can be seen as arbitrary
but it is necessary. This is not a reflection of what is right and what is wrong. In the case of
abortion, legislators have decided on a certain time frame. For some countries it is 12 weeks, for
other like India, it is now 24 weeks. Millions of women around the world rely on a range of
solutions to abortions, ranging from expensive private clinics to quacks. Unwritten and unsaid
prejudices follow them from menstruation through pregnancies to menopause, in most cases
without any legal or family support. The amendment has ended one set of uncertainties. A roll
back is not possible and that is a major step for women.

The bill, however, falls short when benchmarked against the changes proposed in the draft MTP
Amendment Bill 2014, with the biggest lacunae being the failure to expand provider base to offer
safe abortion services to every women who needs them. One in three of 48.1 million pregnancies
in India end in an abortion, with 15.6 million abortions taking place in 2015, according to the
country’s first large-scale study on abortions and unintended pregnancies, study published in The
Lancet in November 2017.

Though one of the provisions of the Bill talks about safeguarding the ‘right to privacy’ of women
who have terminated their pregnancies, it falls short of achieving the core aspects of the ‘right to
privacy’. Denying women to make reproductive choices is a violation of ‘Right to Privacy’. In
2017 Puttaswamy judgement, the Supreme Court declared that privacy safeguards ‘individual
autonomy’ and recognizes the ability of the individual to control vital aspects of her life. The
pursuit of happiness is founded upon the autonomy and dignity of the individual. If women do

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not have a say in deciding what happens with her body when she is pregnant, her bodily integrity
is violated.

Abortion jurisprudence of the Supreme Court is based on the recommendations of Medical

Boards and not on the women’s choice. And there have also been cases where the decision taken
by the Medical Boards are very subjective influenced by social and moral norms and not on the
medical factors concerning risk to the life of the women or foetus. Rather than facilitating
women to take the decisions, institutions are seen as the primary decision makers. Therefore, we
need a more progressive abortion law which allows women to make conscious choices about the
termination of pregnancy until 24 weeks without any special conditions.

For any legislation or policy to be hailed as landmark or progressive, it should benefit a vast
majority of the target audience the legislation/policy is meant to serve or it should be expanding
the boundaries on the issue it seeks to address. The proposed amendments fail this test miserably.
For the overwhelming majority of the estimated 15.6 million women (over 99%) who seek to
terminate their pregnancy every year, the amendment does not change anything. Even for the
small number of women who will benefit, the amendments do not go far enough. Many
countries, both developed and under-developed, including some in the sub-continent already
have a much liberal abortion law. Seventeen countries including Vietnam, South Africa,
Bangladesh and Sweden allow nurses and non- physicians (as recommended by WHO) to
provide first trimester abortion using medical methods or manual vacuum aspiration (over 90%
of abortions in India are estimated to be first trimester abortion).

There are countries where gestational limits are higher (Austria, Sweden, Korea) or where there
is no gestational limit prescribed (Canada, Vietnam, Norway, Switzerland, China), where
abortion is a women’s right (Canada, Vietnam) In India it still continues to be a conditional right.
The proposal requiring only opinion of one provider up to 20 weeks gestation is indeed useful for
women who seek termination in the second trimester (currently opinion of two providers is
required).

For a woman, a visit to the doctor’s office often involves a question regarding her marital status.
The oft-repeated query is put so casually that the dangers associated with answering this
question, without comprehending its implications, are left entirely unnoticed by most of us.

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While most women may make the connection rather belatedly – that it is just a way of arriving
at a decision about the status of a woman’s sexual activity, such association does not leave a safe
space for the woman to provide this intimate detail. The ability to make this connection is
accompanied with the understanding of the moral high horse the question rests upon.

In a country where medical professionals have not been trained or sensitised to normalised
sexual intercourse amongst consensual adults, even when decisions regarding health are at stake,
stringent legal obligations for health professionals are certainly the need of the hour. Without
such action by the legislature, one cannot even begin to battle with the challenges associated with
women exercising their choices regarding sexual and reproductive health. The assumptions
regarding sexual intercourse, marital status and personal life choices are uncomfortable and
disconcerting, to say the least, no matter what medical treatment a woman is seeking. Such
questions are tricky to answer in any scenario, but when such query is asked on a visit involving
pregnancy for an unmarried woman, it makes an already complicated experience entirely
unsettling. The confidentiality women seek at the time of terminating an unwanted pregnancy
arises from the stigma associated with sexual intercourse outside of marriage. But when those
responsible for your health possess such beliefs, even in a professional setting, women are denied
a safe or accessible abortion. In such circumstances, the arrival of The Medical Termination of
Pregnancy Bill, 2020 (MTP Bill) after approximately 50 years after the existing legislation being
brought into force, ought to have been accompanied by a number of discussions. Such
conversations, though, appear to be entirely missing. The absence of debates which are common-
place across the globe regarding choice is not only worrying, but regresses the jurisprudence
around such questions.

The Supreme Court has held that decisions associated with reproductive rights and bodily
autonomy fall within the realm of privacy. The absence of any form of debate in this regard has
been despite the fact that religion does not play as large a role in the politics involving
reproductive health rights in India as it does in Western countries. With Christianity and Islam
condemning abortion as a practice, a belief system about reproductive rights is far more complex
in other countries where religion may dominate policy decisions.

Surprisingly, women’s bodily autonomy when it comes to reproductive health is not only wholly
absent in the MTP Bill, but the approach the legislature appears to have adopted is inherently

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regressive. We have taking several steps backwards, and have eroded what was painstakingly
achieved in terms of jurisprudence. The Bill’s focus continues to be on eugenics over the health
of women, and the question of the well-being of a woman even when addressed appears to be
secondary.

The MTP Bill has, no doubt, brought about some welcome changes, with the word “partner”
replacing the word “husband” in Explanation 1, Section 3. However, such changes in recognising
that relationships outside marriage involve consensual sexual intercourse are a negligible effort
towards an equal society, particularly in view of the fact that we have had decades to develop the
law. The agency of a woman in such a decision has not at all been a consideration of the
lawmakers.

It is often ignored that the decision to carry forward a pregnancy could have life-threatening
implications for a woman, and the MTP Bill continues to play its part in such patriarchal
ignorance. The sanctity associated with motherhood, and the inability for society to accept that a
number of women may not possess a desire to bear children continues to be the basis of the
approach of the legislature as well.

We have consistently witnessed a well-paced feminist movement in India. However, despite the
medical advancement in terms of termination of pregnancies, reproductive health has not
received the attention it deserves from the state. This is evident from the objectives of the MTP
Bill, which in the absence of a foetal “deformity”, merely envisages termination of a pregnancy
either (i) in the event of rape, (ii) where the pregnancy would result in the physical health of the
women being at risk, or (iii) where “anguish caused may be presumed to constitute a grave injury
to the mental health of the pregnant woman”.

First of all, such limitations on the medical termination of a pregnancy entirely robs a woman of
her autonomy to choose to terminate the pregnancy at her will. While it would be safe to assume
that women have surely continued to terminate unwanted pregnancies under the garb of “mental
health”, the complacency we have in adopting such an approach feeds into patriarchal notions
that termination of prospective “motherhood” would certainly be traumatic for any woman.

This is not to disregard that a termination of a pregnancy is often a distressing or painful

experience for several women. However, such generalisations are not only perilous, but reiterate

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notions that women can under no circumstance want to terminate an unwanted pregnancy, and
may even come out of such experience unscathed. Leaving women with no option but to cite
“mental health” as a reason for terminating a pregnancy forces a decision where at the very
threshold of such termination, the experience is necessarily made “traumatic”. Moreover, such an
approach also contributes to our entirely distorted understanding of mental health as a society.

Even in the event that such situation does in fact affect the mental health of a woman, the
determination of risk is entirely at the discretion of the medical professional. The use of the word
“may” in Explanation 1, as opposed to the use of the word “shall” in Explanation 2 of Section 3,
regarding “presumption” of “injury to mental health” leaves no room for doubt that the decision
continues to lie with the medical practitioner. Regrettably, the MTP Bill does not provide any
specifications that the medical professional possessing such sole discretion ought to hold any
training in matters of mental health. Consequently, such discretion would lie with the hospital
staff or gynaecologist advising the woman regarding the pregnancy. This authority would
presumably have no training whatsoever in mental health, and inevitably such discretion would
solely be based on personal beliefs or even hospital policies.

In matters where time is of utmost essence, the ability of a woman to exercise bodily autonomy,
if any, continues to solely lie upon the medical professional who should be willing to commit
what would be a dishonest and unprofessional act. Even with a medical professional who would
provide such non-judgmental safe space, it would be at the personal risk of attesting that the
pregnancy would be “harmful” to the woman, and thereby entirely strip a woman of her dignity
and autonomy

To summarize, the proposed amendments addresses, to some extent, only the tip of the iceberg.
For the vast majority of women who need to terminate a pregnancy, the amendments will not
make any difference. It is unlikely to make any dent in the maternal mortality and morbidity due
to unsafe abortions. Even when compared to the draft MTP Amendment Bill 2014, developed
after wide ranging consultation with a number of experts and stakeholders, the proposed
amendments seem inadequate. In its current form, the MTP Amendment Bill 2020 cannot by any
stretch of imagination be termed as progressive, women-centered or advancing women’s rights
and agency. The full draft of the bill is yet to be circulated widely and hopefully there are no
more surprises in store.”

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 STRUCTURAL CHANGES

INCREASE IN NUMBER OF PROVIDERS

“With an estimated 90% of women seeking before 12 weeks gestation, training village-level
healthworkers (auxiliary nurse midwives) and nurses to prescribe simple abortion pills will help
take safe services to the doorsteps of vulnerable women and, in case of complications, lead to
timely referrals. Only 22% of 15.6 million abortions happen in healthcare facilities, there is no
record of the others. We need far more providers at the lower levels of healthcare delivery to
ensure safe abortion services reach more women. Training mid-level providers for medical
abortions, as recommended by WHO, is a practice in many countries, including developed
nations such as Sweden and South Africa, and in neighbouring countries like Nepal, Bangladesh
and Cambodia. It is a huge missed opportunity for India. This gap in services can be addressed in
the new rules that will be framed when the amended act is passed. “The training requirements
specified in the MTP rules could be modified to include a two to three days short training on
medical abortion for MBBS doctors (traditional training is for 12 weeks) to make them eligible
to provide abortion using abortion drugs. This would dramatically expand the provider base as
India has around 610,000 MBBS doctors, of which only 90,000 are currently trained to provide
abortion services.

EXCESS NUMBER OF PLAYERS

Doing away of medical boards that decide cases related to substantial foetal abnormalities would
be another pro-women move. In the past, we have seen girls and women face delays, stigma, and
repeated invasive exams by different doctors. It’s another layer that is not just a barrier to
seeking abortion care but also disrespectful towards women’s dignity and rights. It legitimises
third party authorisation when abortion is a decision best left to a woman and her service
provider.

INCREASED AWARENESS
Complicating matters further is low awareness of abortion being legal in India. A study of 1,007
women of ages 15-24 years in Assam and Madhya Pradesh in November 2018 found only 20%
young women know about modern contraceptive methods, and 22% are aware that abortion is
legal in India. None of the women surveyed were aware of the correct legal gestation of 20

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weeks. The survey, which included attitude to abortion, found 62% women believe abortion is a
sin, and 33% said they would disown friends who have had an abortion.

Instead of denying services to women because of the apprehension of untrained practitioners

profiteering, the government should focus on regulating the healthcare sector to ensure basic
quality services, such as contraception, safe delivery and abortion, are available for the asking.”

INTERNATIONAL PRACTICES

UNITED STATES (US)

Roe v. Wade is almost synonymous with the US and abortion laws. According to it medical
judgement may be exercised in the light of all factors, physical, emotional, psychological and
familial, allowing the attending physician the room he needs for making the best medical
judgement.

Gestational limits vary between eight to twelve weeks. Twenty two states have banned the use of
procedure anywhere between 13 and 25 weeks. Some states like Alabama do not allow
termination throughout the pregnancy period.

Many states restrict access through means ranging from regulations targeting abortion providers
and mandatory delays. Some states are passing increasingly restrictive bans, including pre-
viability bans, which are the subject of ongoing litigation. Many are in court. If Roe v. Wade is
weakened, abortion rights would be protected in less than half of the US states and none of the
US territories.

Eight states have trigger bans — meaning abortion could be outlawed if Roe is overturned.

In 2019, nine states passed bans on abortion at various points in pregnancy including Arkansas,
Georgia, Louisiana, Kentucky, Mississippi, Missouri, Ohio, Utah, and Alabama (which passed a
total abortion ban). None of these laws are in effect, and the Center for Reproductive Rights and
its partners are fighting to keep it that way.

GERMANY
Medical termination of pregnancy is available on request. The gestational limit is 14 weeks,
calculated from the first day of the last menstrual period.

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 BRAZIL
Legal abortions are permitted in case of rape and if there is no other way to save the life of
pregnant women. Women and girls who terminate pregnancies under any other circumstances
face up to three years in prison. Media reports say more than 300 abortion-related cases against
women were registered by the courts in 2017, many of them reported by health professionals
from whom women were seeking MTPs outside the system.

FRANCE
The gestational limit is 12 weeks from conception or 14 weeks from first day of the last
menstrual period, and MTP is available on request. During this period the intervention can be
performed any time if two physicians, members of a multidisciplinary team, certify, that
continuance of the pregnancy seriously endangers the health of the woman or there exists a
strong probability that the unborn child is suffering from a disorder of particular seriousness
recognised as incurable at the moment of diagnosis.

CANADA
Abortion is permitted on request and gestational limits vary depending on strict regulatory
mechanisms.

SRI LANKA
Abortion is legally permitted to save a woman’s life. Punishment for causing a miscarriage is a
fine that could include up to three years imprisonment. Despite these laws the number of
abortions in the island nation remain high with the Ministry of Health reporting in 2016 that 658
abortions per day. In Sri Lanka, 12.5% of all maternal deaths are due to illegal abortions, making
it the third most common cause of maternal mortality.

CONCLUSION

“Though Medical Termination of Pregnancy (Amendment) Bill, 2020 is a step in the right
direction, the government needs to ensure that all norms and standardised protocols in clinical
practice to facilitate abortions are followed in health care institutions across the country. Along
with that, the question of abortion needs to be decided on the basis of human rights, the
principles of solid science, and in step with advancements in technology. Public health is not a

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running race. It is an integral part of a country’s developmental path with several moving parts.
The amendment sets women’s health in India in the trajectory it merits.

Denying the ‘right to abortion’ to women is a violation of Article 21(Right to Life) of the Indian
Constitution. As Supreme Court in its Suchita Srivastava judgement delivered in 2009 said,
‘There is no doubt that a woman’s right to make a reproductive choice is also dimension of
‘personal liberty’ as understood under Article 21. It is important to recognise that reproductive
choices can be exercised to procreate as well as abstain from procreating.

The intention of the government seems to be right, but the execution seems to fall short.
Hopefully some of the issues can be addressed when the Rules under the Act are framed. Given
the advances in medical technology, current discourse on women’s rights and available evidence,
it is an opportune time to make the MTP Act truly women-centric. Women’s health and rights in
general, and abortion in particular, are increasingly under threat globally. A great opportunity
exists for India to take a leadership role in setting the global agenda. This would require the
government to review what is proposed and overhaul the amendments, so that a contemporary
MTP Act, which serves the needs of women and advances their rights, is tabled in the
parliament. If this opportunity is not grabbed, we will be failing 50% of our population. Should
Indian women wait for another two decades to exercise full control over their bodies?”

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