Author: - Shawaiz Nisar
3rd Year B.A. LL.B (Hons.)
Rajiv Gandhi National Law University, Punjab
On March 2, 2020, the Minister of Health and Family Welfare, Dr Harsh Vardhan presented the Medical Termination of Pregnancy (Amendment) Bill, 2020 in Lok Sabha. The Bill aims to amend the Medical Termination of Pregnancy Act, 1971 by adding to the definition of ‘termination of pregnancy’, ‘a procedure is undertaken to terminate a pregnancy by using medical or surgical methods.’
2. THE BILL
Currently, a pregnancy can be ended inside 12 weeks, if an enrolled clinical professional is of the supposition that: (i) continuation of the pregnancy may change the life of the mother, or cause grave injury to her wellbeing, or (ii) there is a considerable hazard that the child, whenever conceived, would endure physical or mental disabilities. In the event of termination between 12 to 20 weeks, the assessment of two clinical experts is required. The Bill amends to provide that a pregnancy can be ended inside 20 weeks, with the simultaneousness of an enlisted clinical specialist, and in case of its termination between 20-24 weeks, the concurrence of two such practitioners is required. The central government shall issue norms to regulate the practitioner’s opinion in this regard.
Another amendment relates to the replacement of words ‘married women or her husband’ with ‘women or her partner’ in the arrangement accommodating any pregnancy happening because of failure of any contraceptive or technique utilised by a married lady or her husband to restrict the number of kids, such an undesirable pregnancy may establish a grave physical issue to the psychological wellness of the pregnant lady. In the case of the upper limit for terminating the pregnancy, the bill states that the limit shall not apply to cases where such end is vital because of the analysis of significant foetal irregularities. Such abnormalities shall be diagnosed by a Medical Board to be constituted by every state government. The Bill also provides for its constituent members, there shall be the following members in the Board: –
- a Gynecologist,
- a Pediatrician,
- a Radiologist/Sonologist, and
- Any other members, as may be notified by the state government.
The Central Government shall notify the powers and functions of these Boards separately.
3. PRIVACY PROVISION
The Bill requires a registered clinical expert to not uncover the name and different specifics of a lady whose pregnancy has been ended, but to an individual approved by any law. In case of violation of the provision, the wrongdoer shall be punished with imprisonment of up to a year, or with a fine, or both.
4. NEED FOR THE AMENDMENT
Currently, a woman cannot seek to terminate the pregnancy after 20 weeks, and in case of a rare situation it can be allowed but women have to face a lot of cumbersome legal recourse.
Secondly, some of the abnormalities may be detected only after the 20th week, in those cases both the life of the foetus and others may be at risk at the time of delivery. Therefore, allowing termination after the 20th week can place the mother in a safer position.
Currently, many women die on account of abnormalities in the foetus detected after the 20th week. According to a 2015 study published in the India Journal of Medical Ethics, 10-13% of maternal deaths in India are due to unsafe abortions, making it the third-highest cause of maternal deaths in the country.
Thirdly, the termination of pregnancy is a big decision involving a lot of complications even if it is based on the abnormality of the child or risk to the mother. The delays occur in this process on account of decision making or confirmation of medical results and those delays may lead to a decision after the 20th week. In such cases, women do not have any redress.
Fourthly, the medical termination of pregnancy act 1971 is an old law being in place for about 50 years, at the same time medical science has developed so much over the same period. Today, the removal of the foetus can occur relatively easily and that too in the advanced stages.
5. POSITIVES OF THE BILL
- Many of the foetal abnormalities are detected after the 20th week of pregnancy, which may turn a wanted pregnancy into an unwanted one. The proposed extension will allow termination of pregnancy after knowing those abnormalities, which was not the case earlier.
- The proposed bill will allow rape victims and minors women to terminate their pregnancies. The bill has proposed to enhance the gestation limit for ‘special categories’ of women which includes rape survivors, victims of incest, minors, differently-abled women, and other vulnerable women.
- Most importantly, the bill applies to unmarried women also, this in effect relaxes one of the provisions in the Act of 1971, which says a single woman cannot cite contraceptive failure as a reason for seeking an abortion. Now, unmarried women too can terminate pregnancies as married could. This is a plus point in both providing reproductive rights to all women as well as can act as a population control mechanism.
- The Bill seeks to ensure data privacy to women terminating their pregnancies by providing rigorous punishment of imprisonment and fine for the unlawful disclosure of the information.
- The Act of 1971 provided that a minor can only terminate her pregnancy with the concurrence of the guardian. The Bill proposes to end such a provision.
6. ISSUES WITH THE BILL
- Allowing late termination of pregnancies may come in conflict with the viability of the foetus. Viability is the period from which a foetus is capable enough to live outside the mother’s womb. This period usually comes at about 28 weeks but may occur earlier, even at 24 weeks. By allowing late termination, a well – developed living foetus may be sacrificed for the good of the mother.
- In India, allowing abortion has always been subject to criticism as it leads to increased termination in case the child is a girl. The sex determination centres have been increasing their businesses even with strict abortion measures but now with this liberal approach, the chances of termination in the case of a girl child may rise.
- If we take a look at the International scenario, according to data collected in 2017, 59 countries allowed elective abortions, of which only seven permitted the procedure after 20 weeks.
- The Bill continues to provide a need-based approach to abortion rather than rights-based. A woman’s abortion is still subject to the provisions of the Act and dependent on the doctor’s decision. However, at the same time, there is a need to prevent female foeticide also. But that is a different issue to be dealt with stringent legislation and proper implementation.
- The provision for data security of women undergoing termination contravenes sections 19 and 21 of the Protection of Children from Sexual Offences Act, 2012. The Bill proposes to punish the doctor disclosing details of the women undergoing termination. However, sections 19 and 21 of the POCSO Act mandates a person to disclose the commission of rape on a minor in case the former knows it. The same provision applies to a doctor where a minor rape victim comes for abortion.
The Amendment to the 1971 Act is a need of the day as the law is very old governing an area where developments occur every day. There are a lot of positives in the bill but some limitations and practical solutions are yet to be addressed. Moreover, abortion needs to be dealt with by a right – based rather than need-based approach taken into account the advancements in the medical sciences and technology. The issue of female foeticide needs to be tackled differently with stringent legislation and proper implementation.
Although Bill is a good attempt at going with the advancements of science but a lot needs to be done to manage the issue properly.
 The Medical Termination of Pregnancy (Amendment)Bill, 2020 (Bill 55 of 2020).
 The Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971).
 S G Kabra, ‘Unsafe abortions and experimental excesses’, 11 IJME 3 (2003).
 20-week scan – Your pregnancy and baby guide,
 Fetal Viability,
 Is U.S. one of 7 countries that ‘allow elective abortions after 20 weeks of pregnancy?, https://journalgazette.net/news/fact-check/20171009/is-us-one-of-7-countries-that-allow-elective-abortions-after-20-weeks-of-pregnancy
 Amendments We Should Be Asking For in the Medical Termination of Pregnancy Bill, https://thewire.in/women/medical-termination-of-pregnancy-bill-amendments
 Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012).