For the past three decades, several nations have modernized their abortion legislation. After 1980, the global liberalization movement advanced. Currently, just 8 percent of the global population resides in nations where abortion is prohibited by legislation. While most nations have very restrictive abortion legislation, 41% of females reside in nations where abortion is accessible at the option of females. In our country, the “Shantilal Shah Committee (1964)” proposed the liberalization of abortion legislation in 1966 to decrease maternal morbidity and mortality owing to unlawful abortion. Based on this, a “Medical termination bill was proposed in Rajya Sabha and Lok Sabha in 1969 and enacted by the Parliament in August 1971. The MTP Act, 1971 was executed in April 1972. Enacted laws were amended once more in 1975 to remove sluggish method for the authorization of the location and to render facilities more easily accessible. “The preamble of the MTP Act, 1971, reads An Act to allow for the abortion of such pregnancies by approved medical professionals and for events relevant therewith or subordinate thereto”.
It is quite evident from the preamble that abortion will be allowed in certain circumstances. The situations in which abortion is allowed are set out within the Act. In addition, only a licensed medical professional who is described in Section 2(d) of the Act as “a professional who holds any acknowledged medical training as specified in Clause (h) of section 2 of the “Medical Register” and who has similar experience or qualifications in “gynaecology and Obstetrics” as may be provided by regulations issued under the Act” can be allowed to perform the abortion. Other issues relevant thereto include, for instance, the issue of approval for abortion, the location where abortion could be carried out, the right to set down legislation and rules under this favor.
IMPORTANT PROVISIONS OF THE ACT
S. 2(d) of the MTP Act, 1971 describes “Licensed Medical Professionals”. As per the Act, a “Licensed Medical Professional” implies any medical professional who holds the necessary professional credentials as specified in S. 2 of the “Indian Medical Council Act, 1956” and whose identity has been documented in the “State Medical Register” and who holds the necessary medical expertise in obstetrics and gynecology as specified by the Act.
Sec. 3 of the MTP Act, 1971 indicates that “when pregnancy may be ended by licensed medical professionals”.
A licensed medical professional shall not be liable for any wrongdoing that has been stated in the Indian Penal Code or any other legislation that he/she has performed during abortion as per the requirements of the legislation.
Where the duration and period of pregnancy haven’t surpassed more than 12 weeks.
Where the period and duration of gestation have been more than 12 weeks, but not more than 20 weeks, in this situation by the views of the two medical professionals in good conscience.
The prolongation of the pregnancy can pose a significant risk to a female’s health.
When there is an apprehension that an infant born out of this pregnancy would be vulnerable to adverse wellbeing and will be impaired.
It is necessary to remember that the informed permission of the relatives or parents is needed for abortion of any minor girl or girl who is above eighteen years of age but who is of unsound mind.
NEEDS FOR AMENDING THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971
Presently, women seeking to abort the baby after 20 weeks entail many legal complexities, however this bill aims to change the legal frameworks of abortion from 20- 24 weeks.
A lot of females suffer every day because of dangerous and unlawful abortions. This bill aims to establish safeness and care for pregnant mothers in a simpler and more accessible way.
One of the drawbacks of the Act is that it has struggled to catch up with new technologies. As it was introduced in 1971 and that moment, the technology was not so progressed and hence warranted an alteration.
It is specified in the Act that valid written permission of the parent is needed in the situation that the female is a minor or under 18 years of age and over 18 years of age if of unsound mind. The proposed legislation aims to exclude this clause, which is laid out in the MTP Act 1971.
This proposed legislation would ease the complex legislative requirements laid out in the existing MTP, Act 1971. It would further facilitate the cautious pregnancy termination for many females more appropriately and efficiently.
The Union Cabinet adopted the bill in January 2020 under the governance of PM Narendra Modi.
VARIOUS OTHER LAW RELATED TO ABORTION IN INDIA
There are several other pregnancy terminations regulations in India. Abortion in India is permitted in some cases. About 15.6 million abortions are reported to happen in India annually. Although many of these dangerous and unlawful abortions are taking place every day in India, which triggers the death of the mothers. In addition to the MTP Act, 1971, the administration and the Family and Health Ministry have separate plans and proposals for secured pregnancy terminations.
Effective Abortion Supervision- Aid Distribution and Preparation Standards 2010 - These instructions deliver for all broad and thorough details on pregnancy termination. It also includes legal problems linked to it. Both the State Administrations and the Union Territories extend these rules towards systematic abortion services for females in India.
CAC Training Programme- The Health and Family Welfare Ministry has established a structured training program and framework that offers suppliers, instructors, and functional advice on systematic abortion treatment. It was carried out in 2014 after consulting with all medical professionals for the training of practitioners in all States.
State Policy Development Strategies- All States are supposed to put forward their initiatives and objectives and guidelines as a segment of the “National Health Mission” for the execution of health plans in healthcare facilities. These are examined by the Health and Family Welfare Ministry and then the funding is distributed appropriately.
Guaranteeing secure abortion procedures and preventing gender-based activities and racism in gender classification- The Government adopted the Medical Termination of Pregnancy Act, 1971 and the Preconception and Prenatal Diagnostic Technique Act 1994, which renders the gender selection of the child unlawful.
Health Governance Information Structure- This is an effort of the Family and Health Welfare Ministry under the “National Health Mission”, which offers in-depth knowledge of the health treatment facilities provided to the general public. This Gateway is modified frequently.
National Mass Media Initiative-The Health and Family Welfare Ministry initiated it in 2014 to render the termination of pregnancies in a safe way. It was one of the first mainstream initiatives of its type. It concentrated on normalizing abortions and implementing better policies for pregnancy termination.
Section 312 of IPC, 1860. It is also associated with unlawful and involuntary pregnancy termination. As per this Section, whoever willingly induces a female to abort a baby, unless in good conscience, or if a female is mentally and physically disabled, if she wants to have a baby, the individual is punishable for the incarceration of up to three years and is also subject to a penalty.
MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) BILL 2020
The Lok Sabha approved the MTP (Amendment) Bill 2020 (hereafter Bill) on 17 March 2020. This bill revised the Medical Termination of Pregnancy Act 1971. The main provisions of the proposed bill comprise: expanding the pregnancy duration for abortion from “20 weeks to 24 weeks”, creating a health board in each State, and ensuring the seclusion of females whose pregnancy has been ended.
Although this reform is a move in the proper path, there is yet a considerable distance to reach in securing the sexual rights of females. The Bill recommends that the upper limitation for abortion be extended from 20 weeks to 24 weeks. Nevertheless, in sub-section 2 (b) of the bill, it seems that this expansion of the limitation would extend only to specific groups of women. “Specific groups of women” comprise rape victims, survivors of violence and minors, etc, Minister of Health, Dr. Harsh Vardhan mentioned during the passing of the bill.
As per the clarification to sub-section 2, the higher pregnancy limitation would not extend in situations where abortion is entailed due to the presence of some foetal deformities recognized by the Health Board. This distinction is not fair, since technical developments render it possible to detect some foetal defects even after 20 weeks, which can convert the ideal pregnancy into an unwanted one.
To all appearances, the “freedom to abort” must be given to a female on request as so much as the welfare of a female is not at stake. The capricious grouping represents a decremental approach against female’s freedom to their bodies to do whatever they want with respect to the child. It further strengthens the oppressive framework in which women do not have an institution to rule on issues pertaining to their family offspring and their anatomy.
Refusing women the “freedom to abort” is a breach of “Article 21” of the Constitution of India. As the Apex Court mentioned in its Suchita Srivastava verdict of 2009: “There is no question that the freedom of a mother to make a reproductive decision is indeed an aspect of individual freedom as described in Article 21. It is necessary to understand that reproductive decisions may be taken to reproduce as well as to withdraw from reproduction.
While one of the aspects of the Bill speaks regarding protecting the “right to secrecy” of females who have aborted, it drops short of fulfilling the main elements of the “privacy rights”. Neglecting women to make reproductive decisions is a breach of the “freedom to privacy” concept. In the 2017 Puttaswamy decision, the Supreme Court ruled that privacy protects “personal freedom” and identifies the right of people to regulate crucial facets of their lives. The achievement of satisfaction is centered on the person’s freedom and self-respect. If females do not get a voice in determining what occurs to their bodies while they are pregnant, their dignity would be abused.
The Apex Court’s instance on pregnancy termination is focused on the opinion of the Health Boards and not on the option of mothers. There have been instances where the actions made by the Health Boards are subjectively affected by social and virtuous standards and not by medical considerations with reference to the danger to the safety of mother or baby. Instead of making it easy for mothers to take action, organizations are perceived as the main choice-makers. We thus require more inclusive abortion legislation that encourages females to make sound decisions over abortion up to 24 weeks without any special requirements.
CURRENT LAW AND POLICY: WHAT IS STILL MISSING?
Its brawny medical prejudice is a big censure of the Medical Termination of Pregnancy Act. The rule of “doctors only” for providers eliminate intermediary health suppliers and professionals of substitute structure of medicine. The need for another medical view for a second-trimester pregnancy termination further limits access, particularly in remote areas.
The Medical Termination of Pregnancy Act, 1971 requires the State to offer abortion care at all healthcare facilities. Nevertheless, the absence of the necessary authorization for public health centers excludes the general public from the same compliance procedures that extend to the private sector. The presumption that a public healthcare agency is responsible to the people and has well-operational managerial mechanisms that don't need clarification in legislation and practice is false. Sometimes, any other legislation appears to be inadequate or requires clarity. In the case of low condition abortion treatment in the public sector, the same rigorous criteria should be implemented as in the private sector and subjected to the same inspected processes as required in the private one. Amusingly, though, the private sector in our country remains relatively uncontrolled and frequently loses the self-control required to conform with the quality requirements laid down in the legislation.
The absence of clear legislation on effective medical practice and analysis is a significant void in pergnancy termination strategy in India. The “National Technical Guidelines” released in 2001 do not comply with World Health Organisation’s directions and do not guarantee sound medical practice even in permitted termination services. As a consequence, 39-79 percent of suppliers and the continuing usage of anaesthesia in 8-15 percent of registered termination centers are still widespread. India has not figured out a way to guarantee the utilization of better and secured abortion procedures brought by study and continually improving reproductive technologies.
RISK ON REPRODUCTIVE HEALTH OF WOMEN
A female should have the freedom not only to pregnancy termination, but she should have the privilege to deliver a healthy child. As an infant with severe medical issues, not only the parents are burdened, but their relatives, community, colleges, etc. overlook them and, in any situation, the mother of the baby has struggled the most, resulting in extreme emotional trauma and other medical issues Thus, women’s sexual wellbeing must encompass all “pre-and post-pregnancy” concepts.
Current Legislation and policy improvements, however not drastic, still mark a move further in maintaining a female’s access to secure abortion treatment. It is only in past years that a number of governmental advisory initiatives including decision-makers, specialist entities such as the “Federation of Obstetrics and Gynecology Societies of India (FOGSI) and the Indian Medical Association (IMA), NGOs (notably Parivar Seva Sanstha, CEHAT, Health Watch and Family Planning Association of India)” and health campaigners have advocated the enhancement of secured and lawful pregnancy termination aids in our country. Most of their proposals are aligned with the goals and policies described in the Action Strategy of “India’s National Population Development, 2000”. They include:
Increased accessibility and adherence to cautious pregnancy termination facilities,
Creation of more skilled suppliers (comprising intermediary providers) and services, particularly in remote areas
Simplification of the approval procedure,
Detaching clinic and supplier certification,
Connecting strategy with technologies and analysis and effective medical practice,
The implementation of standardized practices for both the “private and public sectors” and
Maintaining the standard of treatment for termination of pregnancy.
Rising consciousness and eliminating myths regarding pregnancy termination legislation among professionals and policymakers are only one move forward. There is a demand to increase understanding of both birth control and pregnancy termination services, particularly among teens, in the wider sense of sexual and reproductive well-being, and to incorporate policies and approaches into value structures and family and sex ties.
For these initiatives to be enforced successfully, they need to be supported by governmental commitment and determination in terms of proper distribution of funding, training, and funding for facilities, coupled with social feedback focused on women’s needs. Outreach and intervention at the national and state levels are needed to implement the institutional policies applicable to pregnancy termination, as set out in the National Population Strategy, 2000 into outcome.
 Section 2(d) of the Medical Termination of the Pregnancy Act 1971 https://tcw.nic.in/Acts/MTP-Act-1971.pdf
 Section 3 of the Medical Termination of the Pregnancy Act 1971 https://tcw.nic.in/Acts/MTP-Act-1971.pdf
 National Estimate of Abortion in India Released https://www.guttmacher.org/news-release/2017/national-estimate-abortion-india-released#
 Comprehensive Abortion Care-Service Delivery and Training Guidelines 2010 http://tripuranrhm.gov.in/Guidlines/Abortion_Care.pdf
 Preconception and Prenatal Diagnostic Technique Act 1994 https://pndt.gov.inwritereaddata/l892s/PC-PNDT%20ACT-1994.pdf
 Section 312 of the Indian Penal Code 1860 https://www.indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf
 The Medical Termination of Pregnancy (Amendment) Bill 2020 https://clpr.org.in/blog/medical-termination-of-pregnancy-amendment-bill-2020/
 LS passes Bill to raise the limit for abortions till 24 weeks for special categories https://www.thehindu.com/news/national/ls-passes-bill-to-raise-limit-for-abortions-till-24-weeks-for-special-categories/article31093261.ece
 Suchita Srivastava & Anr vs Chandigarh Administration (2009) 14 SCR 989
 Abortion jurisprudence in the Supreme Court of India: Is it the woman’s choice at all? https://clpr.org.in/blog/abortion-jurisprudence-in-the-supreme-court-of-india-is-it-the-womans-choice-at-all/
By JAY GAJBHIYE
NATIONAL LAW UNIVERSITY ODISHA
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