What we all were celebrating on 8th March, the International Women’s Day. Now, take a look at your gadgets be it phone, laptop or your iPad I bet you have some new news regarding the misery and horrible condition of women that is still persistent in this society.To overcome a part of the gigantic and humongous problem of women in terms of their health and right to live in accordance with Article 21 with a blend of women and law, the Medical Termination of Pregnancy (Amendment) Bill, 2021 was passed in Rajya Sabha earlier in 2020 The Medical Termination of Pregnancy (Amendment) Bill, 2020 was passed by Ministry of Health and Family Welfare in which the significant development was in increase of time period within which abortion may be carried out.
The instant Bill seeks to amend the Medical Termination of Pregnancy Act, 1971 and increase the upper age limit of legal abortions from 20 to 24 Weeks. The instant article deals highlight the major legal changes proposed by the 2021 bills. In the instant context, can’t women have a right to their own body, how to treat it in a reasonable manner. It is imperative to understand that everyone has a right to life under Article 21 of coupled with the Right to privacy, it is a ‘guaranteed fundamental right.’ [Justice K.S. Puttaswamy (Retd) ... vs Union of India And Ors. (2017) 10 SCC] Abortion is under the ambit of right to privacy, which is part of the right to personal liberty, which is derived from the right to life as held in case of Roe v. Wade.
Background: A revisit to journey of transformation of MTP Act, 1971
The plight of women in Indian society was seen from the medieval time ranging from the evil practices like SATI Pratha to Instant divorce in cases of Muslim’s, the list is long if I need to quote as how women has suffered at length and still suffering. In the light of the aforesaid we need to understand that prior to 1971 the abortion under the Indian Penal Code, 1860 is illegal and not permissible. Section 312 of IPC criminalized the act of abortion. With the changing time law needs to get evolved and on the same lines this provision needs a revisit.
At the same time, European Countries has taken bold steps as after the Roe v. Wade (410US 113 (1973)) case, American and European nations started to legalise the act of abortion. Since the 1970s, many countries have liberalized their abortion laws over the last thirty years. The Roe case was later changed by the US Supreme Court in Planned Parenthood v. Casey, which now ties the validity of abortion laws to the viability of the foetus rather than the strict third trimester test defined in Roe. A wind of change blew in India on the subject matter of adoption post the developments in other nations of world. On August 25, 1964, the Central Family Planning Board in India recommended that the Ministry of Health form a committee to research the need for abortion legislation. The recommendation was implemented in the latter half of 1964, with representatives from various Indian public and private organizations joining a committee named Shantillal Shah Committtee. Following the recommendations of this committee the government passed the Medical Termination of Pregnancy Act, 1971 and give a sigh of relief to Indian women by liberalising the abortions laws in India.
Decoding the Bill and further aspects: Crystal Clear Understanding
The latest development that is recommended in the Act of 1971 is proposed via Medical Termination of Pregnancy (Amendment) Bill, 2021 as it was passed by Rajya Sabha on 16th March 2021, just after the 8 days of International Women’s day celebration, is it a gift or just an oxymoron and a symbolic relief by the patriarchal society. The Bill was already approved in Lok Sabha on 17th March 2020.
In India, foetus removal (Abortion) has been permitted in restricted conditions since the Medical Termination of Pregnancy (MTP) Act 1971 was passed, making a special case for the offense of foetus removal under the Indian Penal Code, 1860. The law's main role was populace control and family planning1 and it does not have a rights-based structure. The law is specialist driven and over-medicalises fetes removal, stripping pregnant people of their entitlement to substantial and decisional independence and vesting the choice to cut short with the specialist. The new bill introduces some watershed changes for the rights of women and better healthcare but sadly the instant Bill fails to measure up to the Supreme Court’s existing reproductive jurisprudence that is developed with time and further, it fails in aspect of the fundamental rights to autonomy, privacy and bodily integrity.
Salient Features of Bill
The Bill amends the 1971 Act which was nearly 5-decade old law. There are some remarkable changes proposed in the bill that will strengthen the right of women and moreover a liberal view was taken for abortion with a progressive approach as the changes incorporated under the bill.
The new provisions were incorporated for special categories of women. Under the special categories of women some specific groups of women included as survivors of rape, victims of incest, differently abled, minors etc are some of them. The new Bill talks for providing a safer abortion to the women in general coupled with the special care for aforesaid group of women for the abortion.
The Bill also recognised the needs of abortion for unmarried women.
The major change that is proposed in this bill is enhancing the upper gestation limit from 20 to 24 weeks for special categories of women and women in general.
The new bill proposes that to terminate pregnancy of a women of 20 weeks there is now opinion needed of only 1 doctor and for the termination of pregnancy of a woman of 20-24 weeks there is opinion needed of 2 doctors
The composition, functions and other details of Medical Board is to be prescribed subsequently in Rules under the Act.
The name and other personal information of a woman whose pregnancy has been terminated shall not be disclosed to anyone unless approved by statute.
The grounds for contraceptive failure have been extended to include women and her partners
The aforesaid are key features of bill that is passed by Rajya Sabha. The objective of bill is to expand access of women to secure and safe legal abortion services on therapeutic, eugenic, humanitarian or social grounds. The bill strengthen access to comprehensive abortion care. The amendments will pave a way for the women with a wider ambit and access of to safe abortion services and will ensure autonomy, confidentiality and justice for women who want to abort. But still there are some lacunae’s that exists in the instant Bill we need to cover them up for a absolute safeguard of women’s.
Loopholes in the Bill: Revisit for betterment
The current law represents heteronormative-patriarchal conceptions of family planning as a method for population control rather than a way of expressing reproductive sovereignty. The 2021 Bill does nothing to advance the interests of pregnant women or acknowledge their organization. Some of the important lacunae that is evident in the 2021 bill passed by Rajya Sabha for Medical Termination of Pregnancy.
First, despite proof that surgical abortion is safe and non-invasive, the amendments do not accept abortion at will at any point of pregnancy. Instead, the Bill maintains that doctors must approve abortions and restricts the conditions in which this permission can be granted. Based on World Health Organization guidelines, there is a need to expand the provider base and allow for mid-level provision of abortions up to 12 weeks by AYUSH practitioners, staff nurses, medical officers, and auxiliary nurse/midwives.
Second, only pregnant women with diagnosis of foetal defects are eligible for a gestational limit extension beyond 24 weeks. It is necessary to question the foregrounding of such an ableist and paternalistic context within which to extend abortion access.
Third, the most important one is that the confidentially clause is not absolute as itallows the disclosure of information of pregnant person’s detail to persons “As per statute or authorised by law” which is a clear violation of right to privacy.
Finally, the amendment is failed to recognise the rights of transgender. It is pertinent to mention here that Bill allows “pregnant women” for abortion but the bill is silent on the recognisation of Transgender’s as post 2019 by the virtue of Transgender Persons (Protection and Rights) Act, 2019 it is an additional gender in India.
We need to overcome the aforesaid lacunes in the existing Bill to made it in consonance with the established jurisprudence on reproductive rights as developed by Courts.
The Supreme Court of India has established a robust reproductive rights jurisprudence. In a landmark privacy decision, Justice Chandrachud claimed that reproductive choice should be understood in the light of the personal liberty guaranteed by Article 21 of the Indian Constitution. In addition, the MTP Amendment Bill 2020 emphasizes the importance of ensuring "dignity, autonomy, confidentiality, and fairness for women in need." The MTP Amendment Bill 2021 also stresses the value of providing “dignity, autonomy, confidentiality, and justice for women who need to terminate their pregnancy.” The reforms, however, may not result in a transfer of authority from the doctor to the woman requesting an abortion. As a consequence, abortion remains a conditional rather than an absolute right. The long excursion of enacting admittance to safe abortion that began in 1971 can genuinely be said to close just when India decriminalizes abortion. Then, there is a need to make a rights-put together lawful structure with respect to abortion that is in accordance with sacred qualities and India's global basic freedoms law responsibilities. The battle proceeds – for a law that maintains the rights to fairness, self-sufficiency, real uprightness and protection; and for one that can change the biological system inside which individuals can practise their full scope of regenerative rights, and especially their decisional independence to look for abortion. In toto, why we can’t decriminalise the abortion with some reasonable and proper guidelines with a proper authority constituted for it which can create a balance of rights between individual and state as right to privacy is a fundamental right that cannot be taken away except by the procedural established by law in reasonable manner.
In toto, the MTP Act is a reformist enactment, which has given ladies in India a similarity to conceptive rights and self-rule and this supposition has been repeated by the Supreme Court through different decisions. The Bill is a right step but the path chosen to put it forward still has some anomalies as I highlighted the existing loopholes of bill. There is a need to change them and ponder over the significant question of decriminalisation of abortion with reasonable precautionary to avoid the backlash from the said development.
As per the health ministry the Medical Termination of Pregnancy (Amendment) Bill of 2021 aims to increase women's access to safe and lawful abortions for medicinal, eugenic, humanitarian, or social reasons. The changes include the replacement of some sub-sections and the insertion of some new clauses under certain parts of the original Medical Termination of Pregnancy Act, 1971, with the aim of increasing the upper gestation limit for termination of pregnancy under certain conditions and strengthening access to comprehensive abortion treatment, under strict conditions, without jeopardizing service and quality of care. It is a step toward women's safety and well-being, and many women will benefit from it. Several petitions have recently been filed in the courts asking for permission to terminate pregnancies at a gestational age above the current legal maximum due to foetal defects or pregnancies caused by sexual abuse. The amendments would expand the reach of safe abortion services available to women and ensure dignity, autonomy, confidentiality, and justice for women who need to end their pregnancy.