Open Access Research Article
“THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021- CRITICAL ANALYSIS ON PROTECTING REPRODUCTIVE AND ABORTION RIGHTS OF WOMEN IN INDIA” BY : MANISHITA BHATTACHARJEE
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Article Details
“THE MEDICAL TERMINATION OF PREGNANCY
(AMENDMENT) ACT, 2021- CRITICAL ANALYSIS ON PROTECTING REPRODUCTIVE AND
ABORTION RIGHTS OF WOMEN IN INDIA”
AUTHOR:
MANISHITA BHATTACHARJEE
3rd
year B.A, LL.B (Hons.) student
COLLEGE
NAME: CHRIST (Deemed to be University), Delhi NCR.
I.
ABSTRACT:
The
importance of mental health, reproductive freedom, and the right to life with dignity are purely interconnected with a
woman’s reproductive rights which encompass a broad spectrum of human rights
standards. Over the years, Indian courts and other courts across the globe have
witnessed notable judgements recognizing women’s reproductive and abortion
rights as part of essential rights. India has itself committed to safeguarding
human and reproductive rights which revolved in various international forums.
After a long consultative process involving several governmental and non-governmental
agencies, professional bodies, and activists, the women's rights to
Reproduction and Abortion were tried to revolve through landmark judgements. To
effectively implement these policies, political will and commitment in terms of
adequate resource allocation, training, and infrastructure support should come
into the picture accompanied by social inputs based on women’s needs. This
paper presents the efforts
made to demarcate the sphere of the Medical Termination of Pregnancy
(Amendment)Act, 2021 along with the endeavor to protect the reproductive
health of women through the amendments made and their implications in the Indian society.
II.
KEY TERMS:
Human
Rights, Reproductive and Abortion Rights, Indian history of practicing
abortion, Prohibition on Sex Determination, Protection of women, The Medical
Termination of Pregnancy (Amendment) Act, 2021, Implementation and Challenges.
III.
SCOPE:
This
research paper aims to underline the importance of Women’s Reproductive and
Abortion Rights in India in respect of Socio-economic, civil and political
rights in a broad spectrum. It envisages on the critical analysis of the
Medical Termination of Pregnancy (Amendment) Act 2021 with its aim,
objectives, regulations and challenges faced in the parameters of Indian Society.
IV.
HYPOTHESES:
This
research paper is based on the following hypotheses:
·
A woman is entitled to get the Reproductive
and Abortion rights vis-a-vis consensual decision-making ability.
·
The majority of rural women are deprived of
medical rights and Education on the same is desperately needed.
·
The scope of the Medical Termination of
Pregnancy (Amendment) Act 2021 has broadened the purview of Women’s rights and
responsibilities including unnatural case victims.
·
The MTP Act has specific social and economic challenges
to properly implement in India in a broader aspect.
V.
INTRODUCTION:
Abortion
and Reproductive rights of women are one of the most talked
about, yet still a grey area with respect to human rights and fundamental
rights. Reproductive rights are essential to the realization of all human
rights, because these encompass a broad spectrum of socio-economic, civil and
political rights, from the rights to health and dignity, to the rights to
equality and non-discrimination, and privacy. It not only impacts human rights
standards,[1]
but also emphasizes the importance of maternal health, contraception, abortion,
and child marriage. Because Women’s sexual and reproductive health is
related to multiple human rights, including the right to life, the right to be
free from torture, the right to health, the right to privacy, the right to
education, and the prohibition of discrimination.
Despite
several obligations, violations of women’s sexual and reproductive health
rights are frequent. This takes up many forms including denial of access of
good quality services that women require, incidents related to women’s
reproductive and sexual health without the woman’s consent, forced sterilization,
forced virginity examinations, and forced abortion. Woman’s rights of sexual
and reproductive health are also threatened when they are subjected to Female
Genital Mutilation (FGM) and early marriage.
Patriarchal concepts of women’s roles within the
family also impact negatively when women are judged on the basis of their
ability to reproduce. Women are also often blamed and tortured for infertility
and being unable to give birth to a male child after several tries.
Over
the last decade, Indian courts have issued several notable decisions
recognizing women’s reproductive and abortion rights as part of the “essential
rights” which is exclusively protected under the fundamental right to life.
In certain ground-breaking judgments, the courts have adopted robust decisions
by adding value to women’s rights concerning pregnancy. Despite 30 years of liberal
legislation, a major portion of female population of India still lack access to
safe abortion facilities.
The
Medical Termination of Pregnancy (Amendment) Bill, 2020 was
introduced in the Lok Sabha on 2nd March 2020. 1 It received Parliament’s
approval on 17th March 2020 and eventually received the President’s assent on
25th March 2021, resulting in a comprehensive law governing abortions in India.[2]
VI.
ANALYSING REPRODUCTIVE AND ABORTION RIGHTS IN
INDIA:
Reproductive
rights rest on the endorsement of the basic right of all couples and
individuals to decide freely and responsibly the number, spacing and timing of
their children. It also includes their right to make decisions, as expressed in
human rights documents concerning reproduction free of discrimination, coercion
and violence. The equal relationships between women and men in matters of
sexual relations and reproduction play a significant role, including full
respect for the person's integrity, mutual respect, consent and shared
responsibility for sexual behaviour and its consequences. The right of a
woman to choose to be a mother or not emerges from her human right to live with
dignity which, falls within Article 21 of the Constitution.
The
Indian Penal Code 1862 and the Code of Criminal Procedure
1898, with their origins in the British Offences against the Person Act
1861, made abortion a crime punishable for both the woman and the
abortionist except to save the woman. The 1960s and 70s saw the
liberalization of abortion laws across Europe and the Americas which continued
in many other parts of the world through the 1980s. Until 1973 abortion was
considered a crime unless performed by physicians to protect the life of the
mother, a phrase often broadly interpreted. The liberalization of abortion law
in India started in 1964 in the context of high maternal mortality due to
unsafe abortion. Untrained persons performed thousands of abortions each year
using unhygienic and dangerous means, resulting in permanent damage of organs,
and the death of many women.[3]
The presence of numerous interdictions associated with unsafe abortions have
always triggered end number of debates regarding this issue. [4]
India
has committed itself to safeguarding human and reproductive rights revolved in
various international forums. In the year 1964, the Government of India
tried to consult a special committee for the purpose of drafting a full-fledged special law
regarding the practice of abortion in India. Led by Shantilal Shah, Shantilal
committee succeeded in reaching to a final submission of drafting a
separate and special law for abortion considering various suggestions of laws upholding
the abortion rights of citizens of India. Several recommendations were presented by this committee to draft a
comprehensive law and finally pass those proposals to the
parliament in the form of a bill known as the Medical Termination
of Pregnancy Bill.
After
a long consultative process involving various governmental and non-governmental
agencies, professional bodies and activists, the Parliament of India enacted the
Medical Termination of Pregnancy (Amendment) Act 2021 and amended Rules and
Regulations relating to termination of pregnancy.
VII.
REFORMING LEGISLATIONS RELATED TO THE
MEDICAL TERMINATION OF PREGNANCY:
The
history of the Medical Termination of Pregnancy Act can be traced back
to the 1960s when illegal and unsafe abortions were prevalent in India.
According to estimates, over 6.4 million abortions were performed
annually, and most of them were unsafe and carried out by untrained persons.
Women who sought abortions were often subjected to severe physical and mental
trauma, and many even lost their lives due to complications arising from unsafe
abortions.
In
1964, the Indian government appointed a committee to study the problem of
illegal abortions and to make recommendations on how to address it. The
committee recommended that the government should legalize and regulate abortion
services to provide women with safe and legal options. The MTP Act was
then enacted in 1971, which legalized abortions up to 20 weeks of
gestation and under certain conditions.
However,
despite the legalization of abortion services, access to safe and legal
abortions remained a challenge. There were several legal and practical barriers
that prevented women from accessing these services, such as lack of trained
providers, stigma, and social norms. Furthermore, the MTP Act did not address
the issue of access to abortion services for women who were beyond 20 weeks
of gestation, even if their lives were at risk.
To
address these challenges, the MTP Act was amended in 2002 to expand the
scope of legal abortions to include pregnancies resulting from rape,
contraceptive failure, and those involving fetal abnormalities. The amendment
also extended the period for legal abortions from 12 to 20 weeks of
gestation. However, the amendment did not address the issue of access to
abortion services for women who were beyond 20 weeks of gestation.
In
2014, the MTP Act was amended again to address the issue of access to safe and
legal abortion services for women who were beyond 20 weeks of gestation.
The amendment allowed for medical termination of pregnancies after 20 weeks if
two medical practitioners agreed that continuing the pregnancy would endanger
the woman's life or would cause severe physical or mental abnormalities in the
fetus. This amendment provided women with access to safe and legal abortion
services, even if they were beyond 20 weeks of gestation.
Despite
these amendments, there were still some challenges that needed to be addressed,
which led to the proposed MTP Amendment Bill in 2021. The Bill seeks to
address several issues, including expanding the purview of legal providers who
can perform abortions, allowing women to seek abortions on the basis of their own
reproductive choices, and enhancing access to abortion services in rural
areas. The Bill also seeks to strengthen the provisions for the regulation of
surrogacy in India. It proposes to prohibit commercial surrogacy, which
involves the payment of money for carrying a pregnancy to term, and to allow
altruistic surrogacy, where a woman carries a pregnancy for another person
without payment. This provision aims to protect women from exploitation and to
ensure that surrogacy is carried out in an ethical and regulated manner.
The
MTP Amendment Bill 2021 is the latest amendment proposed for the Medical
Termination of Pregnancy Act, 1971 to provide women in India with access to
safe and legal abortion services. It has been amended twice before in 2002 and
2014, seeking to address several challenges, including expanding the provisions
amounting to an increased number of safe legal abortions.
VIII.
THE MEDICAL TERMINATION OF PREGNANCY
(AMENDMENT) ACT 2021:
The
MTP Bill, 2020, has been adopted in India as a breath of fresh air as it
removed the existing limitation on abortions in cases of serious foetal
abnormality and extended the limit for legal abortions for certain categories
of women to 24 weeks. The term "termination of pregnancy"
has been defined as "a procedure to terminate a pregnancy by using
medical or surgical methods" under Section 2(e) of the MTP
(Amendment) Act, 2021. On two prominent grounds, this Act is seen as a
significant amendment under the MTPA's existing legal framework-
Firstly, the Act increased the upper limit of
legal abortions from 20 weeks to 24 weeks; Secondly, the
amendment has replaced the term "any married woman or her husband"
with "any woman or her partner”, recognizing instances of abortion
resulting from contraceptive failure and allowing for non-marital pregnancies.
This change has given unmarried and single pregnant women equal rights as
married women, expanding the original scope of the MTPA.
The legislature in the amended Act
has made sincere efforts to protect the privacy of the female who undergoes an
abortion. According to the new provisions, only the person who is authorized by
law is given permission to know about the status of pregnant woman who wants to
exercise her right of abortion. If the registered medical practitioners try to
break this rule, he may be punished with an imprisonment up to one year, fine
or both.
The new Act also gives the liberation
to those women who became pregnant because of failure of contraceptive
device. Such women have the right to abort the child up to the twenty weeks
of gestation limit.
IX.
IMPACT OF THE ACT IN INDIAN SOCIAL SCENARIO:
One of the most significant impacts
of the MTP Amendment Act, 2021 has been on women’s reproductive rights.
The act has been hailed as a positive step towards ensuring that women have
greater control over their bodies and reproductive choices. The increased time
limit for abortions means that women have more time to make a decision and
obtain the necessary medical care, which can be especially important in cases
of fetal abnormalities or other health concerns.
Moreover, the introduction of RMPs as
Registered Medical Practitioner has also helped to increase access to
safe and legal abortions, particularly in rural areas where there may be a
shortage of doctors. This has been an important development, as access to safe
abortion services is critical to reducing maternal mortality and morbidity
rates.
However, while the MTP Amendment
Act, 2021 has been a positive development for women’s reproductive rights,
there are still concerns about its impact on society. For example, some have
criticized the act for not going far enough in terms of recognizing abortion as
a fundamental right for women. The act still requires women to meet certain
criteria, such as proving that their physical or mental health is at risk, in
order to obtain an abortion. This means that women who do not meet these
criteria may still face barriers to obtaining an abortion.
Furthermore, there are concerns about
the implementation of the act and whether women are able to access the
new services that it provides. For example, there may be a lack of awareness
among both healthcare providers and women themselves about the changes brought
about by the act, which could prevent women from accessing the care that they
need. There may also be social and cultural barriers that prevent women from
seeking abortions or that lead to social stigma and discrimination
against those who do seek them.
Another concern is that the act does
not address the root causes of unwanted pregnancies, such as inadequate
access to contraception and sex education. While the act does allow for
easier access to safe and legal abortions, it does not do enough to prevent
unintended pregnancies from occurring in the first place. This could be a
missed opportunity to address the underlying issues that contribute to the need
for abortions in the first place.
The Medical Termination of Pregnancy
(Amendment) Act, 2021
has had a significant impact on society, particularly in terms of women’s
reproductive rights and access to safe and legal abortions. While there are
concerns about the act’s limitations and its implementation, it represents an
important step forward in ensuring that women have greater control over their
bodies and reproductive choices. However, there is still work to be done to
address the underlying issues that contribute to unintended pregnancies and to
ensure that all women have access to the care that they need.
X.
CHALLANGES OF THE ACT- ENSURING BETTER
IMPLEMENTATION ON CONTEMPORARY SOCIETY:
While
there is a compelling need to improve woman’s access to risk-free termination
of pregnancies to mitigate the maternal mortality rate, the challenges faced by
Indian women are prevalent in every step. However, as per 2018-19 data released
by the All-India Rural Health Statistics, there is an acute shortage of more
than 75% specialist doctors at Community Health Centres
("CHCs") in rural areas across the country.[5]
Moreover, the National Health Profile of 2017 also highlights that the Country
has only one specialized medical professional for nearly 10,200 people in the
public sector.[6]
Besides
this, there is another recent research study conducted by the Centre for Justice,
Law and Society at Jindal Global Law School which states that there is a
glaring shortage of roughly 80% specialist medical professionals at
CHCs, who are well-equipped to carry out abortions.[7]
In
some states like Tamil Nadu and Gujarat, there is almost no availability of
specialized doctors in rural areas, while in Meghalaya, Mizoram, Arunachal
Pradesh, and Sikkim, there is a shocking 100% lack of pediatricians in
the Medical Board at the state level.
A
female victim of rape whose pregnancy has progressed beyond the 24-week mark
is required to seek the assistance of the court in order to abort the child.
When the decision to abort the child is delayed by the judiciary for various
reasons, the complexities in abortion cases multiply.
The complications in abortion cases
multiply when the decision regarding aborting the child or not is delayed due
to various reasons by judiciary. The amended Act has not laid down any time
–limit within which the Medical Board should give a decision regarding removal
of the fetus. Termination of pregnancy is a time-bound act, causing an
unnecessary delay can always put the pregnant woman in a state of risk and
dilemma.
Though
the amendment came into force, there is a pervasive lack of understanding of
the MTP Act, its conditions, and its revisions among the general public.
XI.
CONCLUSION:
This
paper illustrates the significant and evolving role to address the legal and
practical barriers which intend to deny women and girls their reproductive
rights. Women's rights to her reproductive and maternal health following gender
justice are deep-rooted concerns that require special consideration because
this influence not just the welfare of women but also the wellbeing of entire
society.
Since
women's right to reproductive and maternal health is fundamental to gender
justice, it is imperative to consider these issues with special attention
as they have far-reaching effects on society's welfare. Despite recent law and
policy reforms, gender and reproductive rights activists are still dissatisfied
with the outcome, as abortion is still not recognized as a woman's choice that
can be pursued on-demand, unlike in 73 other countries.
While
the recent legal and policy reforms represent a step forward in ensuring a
woman's right to safe abortion care, their effective implementation requires
political will and commitment, as well as adequate resource allocation,
training, and infrastructure support, based on women's needs. Indian courts
have created a mandate for the government to shift away from population control
approaches, confront discriminatory stereotypes, and instead center women's
rights to dignity, autonomy, and bodily integrity in reproductive
health-related laws and policies. It is therefore important for the Indian
Parliament to take advantage of this opportunity to amend the pending MTP
(Amendment) Bill and the Surrogacy (Regulation) Bill in accordance
with the privacy judgment and protect an individual's privacy.
There
are several suggestions that could be adopted to tackle the issue of
abortion. First and foremost, educational institutions must make efforts
to provide information to students about the complications involved in
procedures like abortion and surrogacy, so that they can handle such situations
in the future with utmost care and caution.
Secondly, the
Central Government of India and respective State Governments must
make efforts to improve the quality of legal abortion services, so that women
have access to safe and effective procedures.
Finally, an
emergency helpline number could be established to ensure that cases requiring
immediate attention in relation to abortion services can be dealt with without
wasting any time. In conclusion, reproductive rights are an essential
component of women's rights and are necessary for the wellbeing of society as a
whole. Addressing the legal and practical barriers that deny women and girls their
reproductive rights require significant and evolving efforts. The way forward
for post-20-week abortions should consider women's choices and ensure
that substantive law and procedures respect those choices.
While
recent legal and policy reforms represent progress, there is still more that
can be done to ensure women's reproductive rights are protected. Adopting
suggestions like providing education on reproductive health and improving the
quality of legal abortion services can go a long way in achieving this goal.
[1]
Devika Biswas v. Union of India,
W.P. (C) 81/2012.
[2]
Government of India. The Medical Termination of Pregnancy (Amendment) Act 2021;
The Gazette of India: New Delhi.
[3] Yokoe
R, Rowe R, Choudhury SS, Rani A, Zahir F, Nair M, et al. Unsafe abortion and
abortion-related death among 1.8 million women in India. BMJ Global Health.
2019;4. doi:10.1136/bmjgh-2019- 001491.
[4]
Alaka Malwade Basu,The Socio- cultural and Political Aspects of Abortion:
Global Perspectives 102(2003).
[6] Central Bureau of Health Intelligence,
http://www.indiaenvironmentportal.org.in/files/file/NHP_2017-1.pdf (last
visited on Mar. 31, 2021).
[7] Kalantry, Sital; Brundige, Elizabeth; Gupta,
Priya S.; Cornell Law School. International Human Rights Clinic; and Jindal
Global Law School. Good Rural Governance and Citizen Participation Clinic, Promoting
Clinical Legal Education in India: A Case Study of the Citizen Participation
Clinic, Cornell Law Faculty Publications, (2012).
Article Information
“THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021- CRITICAL ANALYSIS ON PROTECTING REPRODUCTIVE AND ABORTION RIGHTS OF WOMEN IN INDIA” BY : MANISHITA BHATTACHARJEE
Authors: MANISHITA BHATTACHARJEE
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/24
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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