INTRODUCTION
The relation between a woman and her child is seen as sacrosanct and a situation where the women might want to abort her child, something which is seen as the greatest gift which can be bestowed upon a woman is nothing less than exceptional vulgar in the eyes of the gold loving & (fearing) people. With abortion being illegal in India in the early years, women used to turn to unconventional means to bring it to an end which a not only led to abortion but also unprecedented demise of the pregnant women too. One of the most infamous “Medication” used to bring a pregnancy to an end was Lysol, an antiseptic soap. Others included heating the vagina with hot water or even pouring it into the rectum with the help of pipe which used to be excruciating and heinous considering in a way it was a method used to kill a child.
The first time when Indians came across a law relating to abortion was in the year 1860 with the implementation of Indian Penal Code, Section 312 which made such an act punishable with imprisonment of at least 3 years and utmost 7 years with fine.
But over the period of time, it was noticed that such a law was obsolete and thus needed drastic change for the better. Thus in the year 1971, an Act with a specific focus on Abortion by the name, Medical Termination of Pregnancy Act 1971 was passed[i]. This Act brought welcoming changes that made the act of abortion legal if proper steps were followed.
LAW AT PRESENT
Things took a drastic turn for the better when the medical termination of pregnancy act which was brought into effect in the year 1971. It was a relief to women and whosoever was affected by the act and a welcome change considering the need of the time. All the requisite things related to abortion which needed to be regulated was pondered over in the concerned act.
Termination of pregnancy is permitted for a broad range of conditions up to 20 weeks of gestation and the opinion of the medical practitioner was given due recognition in the act, as he is the concerned authority who can give a valid opinion that whether an abortion is necessary. The opinion of only one doctor could suffice when it comes abortion till 12 weeks of pregnancy but when the time period of pregnancy crossed 12 weeks opinion of 2 doctors became a statutory obligation which cannot be surpassed.
The justification for inclusion of such a condition is that when the time period of pregnancy crosses 12 weeks then the condition becomes so complex that only one doctor might not be reliable enough to decide on such a sensitive issue and thus a second opinion to be sure was found to be a necessity[ii].
one of the most intriguing things was that not just physical fitness was taken into consideration but also the mental condition of the person was also delved upon by the concerned act. In a situation where the birth of the child or further continuing with the pregnancy can lead to huge mental agony than in such a situation, on the advice of the concerned medical practitioner the pregnancy can very well be terminated.
For instance where the pregnancy was the result of a tormenting sexual assault, then that very pregnancy and further on the birth of the child might inflict huge mental agony to the mother. In such a situation, on the advice of the doctor, the child can very well be terminated.
NEED FOR AMENDMENT IN THE OLD ACT
As per the report in India, 6.4 million abortions are done every year, and more than half (3.6 million) are perilous and kill 10 women every day. The death rate due to abortion accounts for 8% of India’s 44,000 annual maternal deaths[iii].
The act which was enacted in the year 1971 was a comprehensive one but over the period of time, it became obsolete and thus needed changes to bring it at par with the needs of the time and to ensure that the law remains in sync with the need of the hour, “The Medical Termination of Pregnancy Amendment Bill” was introduced in Lok Sabha on 2nd of March 2020[iv]. It has included several drastic measures for better medical choice for pregnant women and the government.
The bill has delved on several aspects which were not pondered upon in the act enacted before and also enhanced certain provisions present in the present act. The proposed change in the act ranges from the no. of doctor required for termination of pregnancy during different stage of pregnancy as well as the competence of doctors who will be terminating the pregnancy being made a statutory necessity before terminating a pregnancy. These suggestions are few among many which have been enumerated in the proposed bill. But the main thing is that each and every suggestion has a judicial example to back it up.
In section 3 (2A)[v] it has been stated that the norms of medical practitioner required to terminate the pregnancy will such that will be stated in the rules made under this act for the different gestation period. Thus the bill clearly states that if the act is passed then the rules that will be made under it will encumber within it the qualification of doctor required to make suggestion during the different gestation period. This ensures that only competent doctors with experience in fetal abnormalities and medical termination of pregnancy will only get to terminate the pregnancy. This rule was present earlier in the rule regarding the termination of pregnancy but it was not specifically delved upon in the act enacted in the year 1971.
One such case related to the termination of pregnancy by an inexperienced doctor was Surendra Chauhan v State of Madhya Pradesh[vi]. In this particular case supreme court had upheld the conviction of a doctor who didn’t have requisite qualification to terminate the pregnancy of the women in question but still did it. It was this very case that set the benchmark on the competence of doctor in this particular field to be a necessity before terminating a pregnancy.
Another major and welcome change in the bill is an extension of the no. of weeks till which women can get her pregnancy terminated from previous 20 weeks to 24 weeks with a change in norm regarding the number of doctors needed to be consulted before the pregnancy can be terminated at the different gestation period of pregnancy[vii].
The reason for such a change is that with the passage of time the medical science has developed so much that now abnormalities present in the foetus is more easily detectable and can thus be ascertained properly by only one doctor after going through the comprehensive reports which can be acquired by a normal sonogram or other requisite tests which are used to detect abnormalities in the foetus. The MTP amendment bill misses the opportunity to address the type of circumstances that arose in Ms Z v. State of Bihar[viii] (2017) where appellant the rape victim had sought for granting permission to terminate her pregnancy which had advanced to 23rd or 24th week due to the lack of care and delay on the part government hospital and continuous delays due to procedural red-tape. The Supreme Court was impelled to render the termination of pregnancy impermissible but the supreme court imposed a heavy amount of fine on the state.
CONCLUSION
The discretion of not bringing a child to life is one of the resilient decisions a woman makes. Pregnancy does not only include physical absorbance but also includes an enormous amount of emotions. In whatever way, if a woman makes the difficult choice of terminating her pregnancy, she must not be left vulnerable to an undesirable third party opinion. The sterned provisions of the MTP act intervene with the reproductive rights of woman. The right to have a reproductive choice is an integrated part of the personal liberty of women has been well conceded by the supreme court of India. The right to life and personal liberty under Article 21 of the constitution of India environs the right to have reproductive choices. Ergo, a law impeding the exercise of this right is a clear contravention of Article 21. In India legalizing abortion through MTP act has not bestowed on the anticipated outcomes. Despite the existence of moderate policies, the preponderance of woman still resorts to perilous abortions.
Therefore, the need of the hour is for the government and facets of civil society to come in conjunction and ameliorate the substantive and executional elements of India’s law and policy. What we need a good law so that no woman is forced into an unsafe abortion.
“No woman can call herself free who does not own and control her body. No woman can call herself free until she can choose consciously whether she will or will not be a mother.” -Margaret Sanger
[i] Lawyerslaw.org, The Medical Termination of Pregnancy Act, 1971, (February, 25, 2015), https://lawyerslaw.org/the-medical-termination-of-pregnancy-act-1971/.(Last visited on 11-04-2020).
[ii] Section 3 (2) of the MTP Act, 1971
[iii] Sanchita Sharma, Safe abortions: Why India needs more trained providers,Hindustan Times, (November,25,2017)https://www.hindustantimes.com/columns/safe-abortions-why-india-needs-more-trained-providers/story-PVXmYCEeGZiFSDxAdiCwPP.html. (Last Visited 12-04-20)
[iv] Ministry: Health and Family Welfare, The Medical Termination of Pregnancy (Amendment) Bill, 2020, PRS LEGISLATIVE RESEARCH, https://www.prsindia.org/billtrack/medical-termination-pregnancy-amendment-bill-2020. (Last Visited 12-04-2020)
[v] Section 3 (2A), MTP (Amendment) Bill, 2020
[vi] Surendra Chauhan v. State of M.P. (2000) 4 SCC 110.
[vii] Section 3 (2B), MTP (Amendment) Bill, 2020
[viii] Ms. Z v. State of Bihar, 2017 SCC Online SC 943.
This article is written by Pritesh Raj & Astutya Prakhar of NUSRL, Ranchi.
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