Introduction
Rights regarding abortion have always been at the cross-section of legally right but morally wrong. It is considered taking someone’s life, even before the person has taken birth. On grounds of morality and emotions, it might seem negative but with legal rationale put together by stating it as a matter of pure choice of women, it is regarded as a righteous course of action. In past, there have been numerous amount of discussions regarding “Abortion laws”, and the question of women’s right to sexuality and reproductive health has seldom come to light. But the legislation depicts the trauma of the patriarchal society that has patronized men over women; moreover, it has treated women as subject to the authority of men. With the coming of the Medical Termination of Pregnancy (Amendment) Act, of 2021, women’s rights, consent, and choice have been highlighted. The medical termination of the Pregnancy Act focuses mainly on the reproductive rights of women and caters to the need for gender equality which is certainly the need of the hour. Abortion is the main term used throughout this act, therefore, it is defined as, “termination of pregnancy after, accompanied by, or closely followed by the death of the embryo”. MTP Act, 1971 has been amended recently in 2020, and this amendment has brought in a landmark change in society.
History of abortion laws in India
Till the 1960s, abortion was illegal in India and it was a punishable offense under the law. Under section 312[1] of the Indian Penal Code, of 1860, a woman can face imprisonment which may extend to 3 years or a fine, or both, if the miscarriage caused was not in good faith. This simply means that currently, intentional miscarriage is criminalized.[2] The need for abortion law was felt in the mid-1960s when the government of India set up Shantilal Shah Committee, which was headed by Dr. Shantilal Shah. This committee reviewed every aspect of why abortions take place, ranging from economic to social problems, and recommended the legalization of abortion laws as well as the setting of abortion care so as to provide a safe system for this.Based on this very report, [3]the Medical Termination of Pregnancy Act, of 1971 was tabled in Lok Sabha and Rajya Sabha, and it was passed by the parliament in August 1971, the act came into force on 1 April 1972. This act was based upon the principles of the British Act which was passed in 1962. It did not allow abortion for all. In true essence, this act did not fully permit the abortion of a child on the desire of the mother, but it liberalized a few aspects of it and barred it from being considered a criminal activity.
Some important provisions under this act are: –
Section 3[4] of the MTP act, 1971 states various conditions under which the pregnancy can be terminated- “when pregnancies may be terminated by the registered medical practitioners”.
- A licensed health professional terminates the pregnancy in accordance with the law relating to it.
- Only where the gestational period has not exceeded longer than 12 weeks.
- Where the time period has exceeded 20 months, depending upon the severity and speciality of the cases.
- Where there is the probability that the child born would be extremely poor in terms of his/her physiological and mental health.
- Any girl who is a minor or of unsound mind cannot have her pregnancy terminated without her parent’s or guardian’s permission or authorization.
- If there is greater harm to a woman’s health condition and a threat to her life.
Provisions where sections 3 and 4 are not applicable–
- Section 3[5] and 4[6] shall not be applicable in the case where the medical practitioner is of the opinion, to immediately terminate the pregnancy because it is necessary to save the life of the women
- Termination of pregnancy is done by a person who is not a registered medical practitioner, he/she shall be punishable with rigorous imprisonment and a fine.
- If termination of pregnancy is done at any place, other than mentioned in section 4[7] of MTP Act shall be liable for punishment.
Shortcomings and loopholes of the MTP Act, 1971
These were the only instances in which the termination of pregnancy was allowed, but the biggest loophole was that this privilege was not given to all women. Only married women and victims of rape were allowed. Unmarried women, widows, as well as divorced women were deprived of this right. This led to the emergence of illegal and illicit abortions which were unethical and not covered under sections 3[8] and 4[9] of the MTP Act because there was no other way left for this section of women. Women had to deal with social stigmatization of doing wrong and they could not live their life the way they wanted to. With the advent of this law, although abortions were made legal in 1971, still illegal abortions outnumbered legal abortions by a large margin. Another shortcoming of this act can be considered the fact that the Medical Termination of Pregnancy Act of 1971 came because of medical advancement but it was not able to keep pace with further progress that happened.
NEO MTP ACT (MEDICAL TERMINATION OF PREGNANCY (amendment), 2021)
This provides a much more liberal arena and social ground to access abortion by a larger section of women. Medical Termination of Pregnancy(amendment) act, 2021 came into force with effect on 24th September 2021 and it can be considered one of the most revolutionary steps taken toward the betterment and enhancement of women’s status. The new amendment in the MTP Act is in line with the judgment given in the case of Mahima Yadav v. Government of NCT of Delhi and Ors[10]. In this case, the petitioner filed the case to obtain permission to have her pregnancy terminated under the Medical Termination of Pregnancy act, of 1971, although her fetus is more than 24 weeks old. The counsel appealed that there are certain anomalies and it would be fatal for the petitioner. The act has come into existence to ensure the availability of legal and safe abortion procedures on therapeutic, humanitarian, and social grounds.
MTP Act, 2021, a boon for women
With the kind of changes that have been done in the legislation, MTP Act has broadened its horizon and has become a lot more welcoming to all strata and sections of women. Is the impact all good on women? It is indeed because when the pandemic took its toll, there were more than 2 million unwanted pregnancies and very limited access to abortion. MTP Act, 2021, is surely bringing a progressive mindset to society, and as its long-term implication, it is helping women in accessing their bodily autonomy, which once was a far-fetched dream for them. Even if this amendment has brought shine in doomsday, but yet it has left many ambiguities-
- It does not allow abortion on any request. There are certain criteria set for it such as foetal abnormalities, a risk to physical and mental health, etc.
- It is unclear how would it help in curbing sex-based abortion.
It is indeed a milestone, but policy maker must consider these ambiguities in order to ensure safe abortion for women and ultimately give them their bodily autonomy.
Conclusion
The new amendment in the law is significant because it will help in contributing towards ending preventable maternal mortality. In light of progress within society, in terms of family ties and social relationships, the development of the MTP act was a must. With the increase in the number of live-in relationships, the chances of pregnancies have quadrupled and it creates a huge fear of hindrance in the life of women and men. In such a scenario, protecting the rights and dignity of women is necessary for the government and in order to achieve it such legislation must come into existence. This is one of the most progressive developments to date toward empowering women and enhancing their rights, instead of pulling them down and putting a taint on their image. Restructuring of this act has been truly a blessing in disguise for women, who had to leave their career, education, and sometimes their family for the sake of the unwanted pregnancy. In my personal opinion, as a law student, this amendment is a ray of hope for this gloomy society that is built on fake promises. MTP (Amendment) 2021, was much-needed legislation for bringing equality in rather more done than said terms. Women now can live a life where they have the right to choose and regulate the functioning of things to be done.
Author(s) Name: Shreya Srivastava (Savitribai Phule University, Shankarrao Chavan Law College)
References:
[1] Indian Penal Code 1860, s 312
[2] ‘Abortion in India’ (Outlook India, 28 July 2022) <https://www.outlookindia.com/national/abortion-laws-in-india-a-look-back-at-the-timeline-news-212618> accessed 30 January 2023
[3] Mohd Aqib Aslam, ‘Medical Termination of Pregnancy (Amendment) Act, 2021’ (Legal services of India) <https://www.legalserviceindia.com/legal/article-6037-medical-termination-of-pregnancy-amendment-act-2021.html> accessed 30 January 2023
[4] Medical Termination of Pregnancy 1971, s 3
[5] Ibid
[6] Medical Termination of Pregnancy 1971, s 4
[7] Ibid
[8] Medical Termination of Pregnancy 1971, s 3
[9] Medical Termination of Pregnancy 1971, s 4
[10]Mahima Yadav v Government of NCT of Delhi and Ors Writ Petition (C) No. 4117/2021
