by HIMANSHU RANJAN and RITIK KANOUJIA
MEDICAL TERMINATION OF PREGNANCY BILL, 2020: A BEACON OF HOPE BUT NOT THE SUNSHINE
Examining whether the MTP Bill, 2020 passes the test of progressiveness in light of the increasing advancement in technology and transformative judicial pronouncements.
One of the least discussed rights in the realm of Gender equality debate is the Women’s right to abortion. Although it has been declared by the United Nations as an inalienable ‘Human Right’, in most of the countries, there is no such right et al. India advanced miles ahead in 1971 when the Medical Termination of Pregnancy Act [hereinafter MTP Act] was legislated by the Parliament legalising safe abortion. With the passage of time and advancement in the medical technologies, the process of abortion has undergone a sea change – it has become comparatively easier and safer. In furtherance of which, the Medical Termination of Pregnancy (MTP) (Amendment) Bill, 2020 [hereinafter bill] was tabled in the parliament and has been passed by the Lok Sabha on 17th March, 2020. In this article, the authors aim to examine whether the change proposed is in pith and substance, progressive or not.
WHAT THE AMENDMENT PROPOSES?
The proposed bill seeks to amend the MTP Act of 1971 by incorporating major changes in Section 2, 3 and 5 of the original Act.
For the purpose of achieving safer termination of pregnancy, the current bill proposes formulating a medical board under purview of Section 2(D) of the MTP Act. The recent bill seeks to amend Section 3 of the MTP Act, 1971 by enhancing the maximum gestational limit for the termination of the pregnancy. With the passing of the new amendment bill, the upper gestational limit stands to 24 weeks from the earlier 20 weeks. Under the provisions of the earlier MTP Act, a woman could not terminate the pregnancy if the gestation period exceeded by 12 weeks. Previously, the MTP Act mandated the pregnant woman to be bound by the advice of one medical practitioner in the case of 12 weeks of pregnancy and beyond that time limit (up to 20 weeks), the advice of two medical practitioners was necessary. In the current bill, the opinion of one medical practitioner is mandated for the termination of the pregnancy up to twenty weeks of the gestation period and beyond that, the advice of two medical practitioners should be necessitated to abort the pregnancy.
The proposed bill provides for non-applicability of the provisions relating to the length of the pregnancy in cases where the termination of pregnancy is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a medical board. The earlier Act permitted pregnancy in one of the cases, when there was a substantial risk that if the child would be born, it would suffer from such physical or mental abnormalities to be seriously handicapped. The present bill has broadened the scope and allows pregnancy, even in the cases where the abnormality would not seriously handicap the children. The bill also provides a safeguard to the privacy of a woman seeking the termination of the pregnancy by inserting Section 5A in the MTP Act, 1971 and states that no registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated except to a person authorised by any law for the time being in force. The person contravening the said provision shall be punishable with imprisonment which may extend to one year, or with fine or with both.
The earlier MTP Act only provided for the remedy of contraceptive failures to the married women and husband but the present bill seeks to amend this discriminatory provision. The bill currently allows the remedy for the contraceptive failures to both married and unmarried women (including their respective partners). Moreover, in the original Act, the anguish caused by an unwanted pregnancy was presumed to constitute a grave injury to the mental health of the pregnant woman only in cases where the purpose of the pregnancy was to limit the number of children. Whereas in the current bill, an unwarranted pregnancy if resulted, even when the purpose was to prevent any form of pregnancy, will be presumed to constitute an injury to mental health.
WELCOMING CHANGES OF THE PRESENT BILL
The MTP bill tabled before the Lok Sabha undertakes an eminent step towards the gateway of providing a safe abortion to the women. The amended Bill is a welcome step as it enhances the upper-gestational limit for termination of pregnancy. The earlier qualification that the child’s physical or mental abnormality must lead him/her to be ‘seriously handicapped’ so for the women to avail the termination of pregnancy has been uplifted by the present bill. Therefore, the bill has broadened the scope of termination of pregnancy under section 3.
One of the most welcoming steps proposed in the bill is that it has obliterated the difference between ‘married’ and ‘unmarried’ women and allows the latter also to avail the benefits of termination of pregnancy under section 3 of the Act. The Courts have erstwhile upheld live-in relationships. The removal of such discriminatory clauses will safeguard rights of unmarried women. The bill also empowers the women to terminate pregnancy, notwithstanding the limitation of the gestation period as provided under sub-section (2) of Section 3, where such termination is necessitated by the diagnosis of ‘any of the substantial foetal abnormalities’ diagnosed by a medical board.
Moving ahead, the expression ‘substantial foetal abnormality’ in the present bill remains a disputable fact and not well elucidated or classified under the purview of Section 3. The term bears a restrictive interpretation and remains ambiguous to construe a safe abortion to the women. The bill though respects the discretion of women up to a larger extent, but it however doesn’t meet with the progressive benchmark, when it is perceived comprehensively. The term ‘Substantial’ is undefined and must be thoroughly laid down in the MTP rules; otherwise, it would be misused by the medical practitioners. The bill must resolve this problem by adequately categorizing certain circumstances which constitute substantial foetal abnormalities.
The Right to privacy has now been declared as an intrinsic and indispensable part of the Fundamental Right to Life and Personal liberty. Ensuring the dignity and privacy of women, the bill aims to secure the sensitive data of pregnant women and has a penal provision which provides for punishment of the offenders, infringing privacy of the pregnant women. This feature of the Bill represents a commendable move in the procedure for the termination of pregnancy.
CRITICISM OF THE MTP BILL, 2020 AND SUGGESTIONS TO REDRESS IT
Ostensibly, the prolongation of the gestational limit up to 24 weeks is desirable but in a holistic sense, it is still not progressive. The bill should ideally aim to truncate the gestational period boundaries, i.e. there should represent no upper limit et al, keeping in mind the cutting-edge medical science technology that can provide safe termination of pregnancy even in the later stages of the pregnancy (i.e. post 24 weeks). Many times, what happens is that the brutally raped victims, who are shattered by the incident, are overburdened by the colossal emotional trauma. Thus, raped victims are unable to overcome such trauma in a quick time, and the doors of the hospice of medical science are shut for them, leading to complete injustice and apathy. Moreover, in the case of Suchita Srivastava & Anr. v. Chandigarh Administration, the apex court held that, in cases where the medical opinion is otherwise, the right to seek termination of pregnancy is available to the victim of the forced conception, which has to be honoured and upheld unconditionally irrespective of the length of gestation. After the landmark judgement of the Supreme Court in Justice K.S Puttaswamy v Union of India, there is no doubt that a woman’s right to make reproductive choices is an integral dimension of ‘right to privacy and personal liberty’ as understood under Article 21 of the Constitution of India. The crucial consideration is that a woman’s right to privacy, dignity, and bodily integrity should be respected. Further, Rajasthan High Court also recently reiterated that the fundamental right of the pregnant woman should be heavily weighed over the right of the fetus, which is yet to be born.
In the current bill, the term ‘medical practitioners’ should be substituted with ‘registered health care providers’ as it was envisaged by the MTP Bill 2014. Such a change is necessary as it would include doctors qualified in Ayurveda, Homeopathy and nurses under the ambit for providing safer termination of pregnancy. This becomes significantly essential and viable in rural areas where due to shortage of registered medical practitioners, the women are incapable to safely abort. However, all the health care providers must be thoroughly trained in this process, before assuming actual responsibility.
Section 2 of the MTP Bill provides for establishing a ‘Medical Board’ consisting of a gynaecologist, paediatrician, sinologist and any other member notified by the Government. The medical board shall be responsible for the diagnosis and providing a safer abortion to the women. The provision for formulating a medical board is a welcome decision by the MTP bill, however there remains a void. The board must also consist of a ‘registered psychologist’ who would provide counselling to the sexually abused victim, dealing with her severe mental trauma, as well address the psychological trauma of those women who decide to abort their child. Most of the time, the decision to abort is a challenging one, which requires comprehensive guidance and counselling.
CONCLUSION: THE WAY FORWARD
The Indian legal Jurisprudence on gender rights transformed in the early 1970s with the enactment of the MTP Act. Subsequently, there were several amendments catering to the changing scientific advancement in technology. There eternally existed a conflict between the reproductive autonomy of women and the state’s compelling interest in the unborn child. The decision in the K. S Puttaswamy case wherein the court recognised the reproductive autonomy of women as a part of right to privacy proved to be a watershed moment in the history of India. The judgement has heavily tilted the debate between Women’s decision to abort and state’s restrictions henceforth in the favour of pregnant women. The MTP Bill marks a much sought step in that regard but it will not be incorrect to say that it is still not progressive and changes suggested must be taken into consideration after discussing again with all the stakeholders before the bill translates into an Act.