Recognising the rights of pregnant people

Lately, the long-overdue amendments to the Medical Termination of Pregnancy (MTP) Act, 1971 were passed by Parliament. Nearly, five decades ago, the MTP Act was enacted as an exception to the IPC provision (S.312-316) which criminalises abortion. However, the MTP Act has become obsolete and archaic. The Parliament initiated an amendment, to keep up with the medical advancements. However the MTP Amendment Act, 2020 fell foul of the constitutional framework concerning advance reproductive choices, privacy and gender inclusivity.

The MTP (Amendment) Act, 2020 has broadened the ambit of the persons who can access abortion facility by obliterating the distinction of married and unmarried woman. The amendment has increased the gestational limit from, hitherto, 12 weeks to 20 weeks within which the foetus can be aborted on one doctor’s advice. The upper gestational limit has also been increased from, hitherto, 20 weeks to 24 weeks on two doctor’s advice. However, the limits have been increased only for women in certain categories- contraceptive failure or rape victims. In case a foetal anomaly has been diagnosed by the Medical Board constituted under the amendment, the upper gestational limit would not be applicable. It penalises the dissemination of any information related to the woman whose pregnancy has been terminated. The penalising provision can have a chilling effect on abortion services.

The amendment poses several disturbing threats to gender inclusivity, right to privacy and exercise of autonomy. The amendment endorses a progressive view by replacing the term ‘husband’ with ‘partner’ and ‘married woman’ with ‘woman’. However, this alteration still reflects heteronormative bias as it excludes other categories of pregnant persons such as transgenders, intersex and gender-diverse individuals. This amendment also excludes other marginalised communities, such as single mothers and sex workers, from claiming the ground of contraceptive failure as it requires relational or partnership factor.

The Supreme Court has developed a robust jurisprudence on reproductive rights. In KS Puttaswamy v UOI, the court reads into reproductive choices and right ‘not’ to procreate as important facets of the right to dignity, privacy and bodily autonomy under Article 21. However, the doctor-centric approach adopted in the amendment seems to have allowed abortion not as a legitimate choice but as a need. For instance, the requirement of third-party authorisation from medical boards and courts, in the amendment, depicts the lack of any scope for the exercise of decisional autonomy by the pregnant person. Not only does it violate the right to privacy but also violates the right to life and dignity by compelling a person to continue pregnancy without their will. The courts rely on the recommendations of the Medical Board, whose opinions are often based more on subjective bias than medical factors.

These requirements of medical opinion, authorisation and time frame restrictions prevent the effective exercise of the right to abortion which is a fundamental right under Article 21 as per Suchitra Srivastav v Chandigarh Administration. It shall be the pregnant person’s right which shall take precedence over the foetus’s rights as the latter is entitled to human rights only upon birth. Thus, the ultimate right of autonomy over the body shall lie with the person concerned and no third party should have any say in the manner such right is exercised.

The amendment allows for breach of confidentiality in case the information is demanded by ‘any person authorised by law’. Contrary to the spirit of the right to privacy as a fundamental right held in KS Puttaswamy v UOI, such disclosure compromises the safety and privacy of the pregnant person.

The recent amendment to MTP Act, 1971 has failed to synchronise with the Supreme Court’s pronouncement on gender inclusivity, reproductive justice and privacy. To foster inclusivity, the Act must replace ‘woman’ with ‘pregnant persons’ and should also expand contraceptive failure as a ground available to all, irrespective of the status of their partnership. Thus, the amendment must also recognise abortion on demand as long as the person’s life is not at risk.

The confidentiality clause gives leeway to the person authorised by the law to access the information about the pregnant person which violates privacy. To maintain that legitimate interest behind this move, the amendment must mandate disclosure only upon obtaining an order from a competent court of law.

(The writers are students of National Law School of India University, Bengaluru)