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The Medical Termination of Pregnancy (MTP) Amendment Bill 2020 is due to be discussed in an upcoming Rajya Sabha session. This is the second time, in its 49 years of existence, that the MTP Act will be amended. While introducing the Bill in the Lok Sabha, the Health Minister highlighted the government’s intent to improve access to safe, affordable and legal abortion services for women without compromising on safety, quality of care and more importantly to ensure dignity, autonomy, confidentiality and justice for women who need to terminate their pregnancies.
The Amendment Bill proposes some welcome changes-- it replaces the phrase “married woman and her husband” with “woman and her partner”; increases the upper gestation limit to 20-24 weeks for “certain categories of women”; reduces opinion required for termination of pregnancy between the 12th and 20th week of gestation from two providers to one and removes upper gestation limit for foetal abnormalities ‘necessitated by the diagnosis of a Medical Board.”
The question is, does the proposed amendment live up to its intent? The answer, unfortunately, is not fully. A critical examination of the proposed amendments shows that with a few changes, the legislation can meet the needs of those seeking abortions. Despite the existence of a liberal legislation for 49 years, many abortion-seekers in India face difficulty in accessing safe and legal services to terminate their pregnancies for a variety of reasons. The MTP (Amendment) Bill provides an opportunity for parliamentarians to craft a progressive and path-breaking Act.
Changes that have been suggested by medical and legal experts and civil society can be classified under three major areas: Advancing rights-based legislation, syncing the Bill with recent laws and judgements, and operational convenience in implementation.
Exercising abortion rights in India is conditional and can be permitted based only on the opinion of the doctor. Making abortions in the first trimester (up to 12 weeks) a right or available on request would be a welcome step as around 90% of abortion-seekers terminate their pregnancy within 12 weeks. Sixty-six countries in the world already allow abortion as a right up to 12 weeks or more into gestation. As the world’s largest democracy, should we be denying our citizens this right?
The clause that prescribes “no upper gestational limit” is restricted to foetal abnormalities, and should be extended to survivors of sexual abuse. Having to continue with a pregnancy that is a consequence of sexual abuse can cause untold mental and physical anguish and have an adverse impact on survivors’ capacity to exercise their rights to life and liberty. Often survivors of sexual abuse take a longer time to seek help, given the trauma and associated stigma, which is only higher in the case of minors. Recognising this, in the past, the courts have allowed terminations beyond 24 weeks in such cases. Enshrining this in the law would avoid the need to seek judicial intervention and will ensure that one incident does not define the survivor’s life and autonomy.
The Transgender Persons (Protection of Rights) Act 2019 and the 2014 National Legal Services Authority vs Union of India judgement have upheld the right to self-identification of gender. Not only women but transgender, intersex and gender-diverse persons may also require access to abortion care. Changing the terminology in the Bill from “pregnant women” to “pregnant person” would make abortions more accessible to those who need them. It would probably make India the first country in the world to have gender-neutral abortion laws. The word ‘abnormalities’ implies that disabilities are ‘abnormal’ and those without disabilities are ‘normal’, and therefore more valued and wanted. Replacing the term ‘abnormalities’ with ‘anomalies’ would make the MTP Act inclusive and sensitive.
Confidentiality is valued greatly by persons seeking abortions and this must be protected by law. The provision in the proposed amendment that require personal details of abortion-seekers to be revealed to any person authorised under law can prove problematic for both seekers and providers. This could compromise the privacy and interest of the abortion seeker, could lead to harassment of the provider and could result in providers becoming hesitant or unwilling to provide services. Rewording the clause to say that “particulars of the person seeking MTP services should not be disclosed to anyone unless ordered by the courts” would protect both from overzealous officials.
Extending the upper gestation limit to 24 weeks for all pregnant persons and not just certain categories of women would keep the law simple and non-discriminatory, avoiding the need to categorise those who are eligible and those who are not. Given the shortage of specialists who can provide second trimester and late-term abortion, one provider’s opinion should suffice for abortions in the 20-24 weeks period. Also, when only one provider is required for the service, what is the need for the opinion of two providers? The setting up of medical boards with a gynaecologist, paediatrician, radiologist or sonologist and other members by the state government can pose a major operational problem since many districts do not have sufficient specialists. Also, with just one board in a state, pregnant persons would have to travel long distances to be diagnosed, implying increased costs and delayed decision-making. These changes would help smooth the implementation of the law, improve access and ease the burden on healthcare systems.
The changes suggested above would make the MTP Act more progressive, rights-based and ensure that anyone seeking to terminate their pregnancy can do so legally without compromising their safety, autonomy, confidentiality or dignity. At a time when sexual and reproductive health and rights are under threat globally, it would reinforce India’s leadership on this crucial issue. It is fervently hoped that the Parliament and government will stand up and be counted.
(The writer is CEO, FRHS India and Campaign Advisory Group member, Pratigya
Campaign for Gender Equality and Safe Abortion)