The amendments in the MTP Act bill are flawed
A woman’s right to reproductive freedom remains subordinated to the medical and legal regime
The Union Cabinet’s approval of the Amendments to the Medical Termination of Pregnancy (MTP) Act 1971, in January, sets the stage for a small though belated step forward. In a country where unsafe abortion is the third leading cause of maternal mortality, taking a toll of 13 lives each day, the law and the health system will need to do much more than the proposed MTP Amendments Bill, 2020.
It is a welcome amendment that the bill inter alia proposes to place an unmarried woman and her partner at par with a married woman and her husband, in securing abortion due to contraceptive failure. Jurisprudentially, this carries forward the rationale of the law against domestic violence which makes no distinction between the rights and protections available to a woman, whether in marriage or a live-in relationship. This recognition of women’s sexual agency will encourage access to safe abortion facilities as the stigma is erased.
Significantly, the amendments also propose increasing the upper gestation limit for abortion from 20 to 24 weeks. This comes against the backdrop of scores of women approaching the Supreme Court and high courts to secure permission for abortion post 20 weeks, upon discovery of a congenital foetal abnormality or late detection of pregnancy caused by sexual assault. With advances in medical technology, certain foetal abnormalities are discerned only after the 20-week gestation period and further abortion can be safely conducted up to 24 weeks, by medical doctors, making a strong case for enhancement of the upper gestational limit for abortion.
While the MTP Amendment Bill has not been placed in the public domain, reports suggest that the increase in upper gestational limit to 24 weeks for abortion is envisaged only for, “vulnerable women including survivors of rape, victims of incest and other vulnerable women (like differently-abled women, minors) etc”, and the same would not apply in cases of “substantial foetal abnormalities” diagnosed by the Medical Board. Thus the amendment bill sets no upper limit for abortion triggered by the discovery of substantial foetal abnormalities.
This classification is disturbing, as it rests on prejudice rather than science. Lurking under this classification are twin assumptions, both regressive. It reinforces the view
that certain foetuses (of disabled women, of rape victims, or with congenital abnormalities) are per se unwanted, undesirable and hence ought to be dispensed with and concomitantly that women do not have a sovereign right over their bodies to secure an abortion, unless they are bearing socially undesirable foetuses. Such a law not only fails to actualise autonomy and reproductive justice for women, rather the facade of rights further entrenches patriarchal and regressive notions of progeny that preserve caste-community purity, and promotes eugenics and ableism.
Interestingly, the jurisprudence on reproductive choice articulated by the Supreme Court a decade ago, in 2009, in Suchita Srivastava v Chandigarh Admin, has a more progressive impulse. In this case in which a woman suffering from “mental retardation” had conceived as a result of rape in a State-run institution, the court upheld her right to decide to reproduce and raise a child, stating, “There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected”. The special measures required to enable “vulnerable women”, to exercise their reproductive rights would involve the state assuming responsibility to defray medical expenses, provide specialised medical treatment and care, compensation, trained assistive child care etc. Regretfully, the law and policy are silent on this.
The 2020 amendments in fact echo the central government’s stance before the Supreme Court, in September 2019, where in a public interest litigation seeking decriminalisation of abortion, it submitted that “a pregnant woman’s right to abort her pregnancy is not an absolute right, and the right must be balanced against the compelling state interest of protecting the mother’s health and the life of the foetus/unborn child.”
It must be recalled here that in 1971 the MTP Act was introduced to carve out an exception to Sections 312 and 313 of the Indian Penal Code, which prohibit abortion by criminalising intentionally “causing miscarriage”, irrespective of the consent of the woman. The 2020 Amendment Bill does not decriminalise abortion and a woman’s sovereign control over her reproductive life remains fettered, except as permitted under the MTP law.
The 2020 amendments fall far short of the proclamation made in the government’s press note that, “The proposed increase in gestational age will ensure dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy”. The law continues to shackle a woman’s decision to abort by requiring endorsement by one or two medical practitioners for an abortion within 20 weeks or 24 weeks, respectively. Even within the 24-week period, a woman can only seek abortion for the reasons set out in the law and not on request, as available in Singapore or Canada. It fails to draw inspiration from the 2017 landmark Puttaswamy judgment of the Supreme Court that, while recognising privacy as a fundamental right held, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation... Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life.” The 2020 amendments perpetuate the subordination of a woman’s determination of her reproductive freedom to the medical and legal regime.