Medical Termination of Pregnancy in India: Progressive or Regressive?

In India, medical termination of pregnancy was legalized through the 1971 act which was limited in its statute: it allowed abortion only in cases of risk to life, rape or incest. A provision was also made for the termination in cases of failure of contraceptive, but it only applied to married women. The doctor’s authorization was necessary in all cases and the limit for the procedure was set at 20 weeks. Over time, numerous demands for reforms have been raised especially in the view of advancing technology and increasing awareness of social and reproductive rights. In response, the government did initiate a few amendments. Most recently, the MTP Bill 2020 was passed by both houses of the Parliament, and awaits Presidential assent before being formalized into a law. Though the bill makes significant strides from its predecessor in terms of gestation-limit and expanding the beneficiary base, it still has considerable deficiencies that limit its accessibility and application.

Denial of Agency

The MTP in spirit is not a rights-centric act: it gives precedence to the doctor over the patient. The very name of the act, Medical Termination of Pregnancy, instead of abortion seeks to protect doctors who conduct the procedure from IPC provisions that criminalize the latter. Hence, the very basis of the law is not the exercise of agency by people, but the protection of practitioners. Although MTP Bill 2020 removes compulsory medical consultation for abortion till 12 weeks gestation period, it still mandates approval by doctors post the first trimester, thereby severely undermining people’s bodily autonomy and agency. Medical termination of pregnancy is not viewed at par with other medical procedures where the ultimate authority regarding a person’s body and the risks involved resides with them. The regressive undertones of the legislation effectively deny a person their right to undergo abortion as per their own choice and instead place their fate in the hands of doctors. In the proposed law (as was the case with the 1971 legislation) the agency of the patient is subservient to the doctor’s opinion (and in third-trimester abortion cases) the courts and state apparatus.

Accessibility Issues

Accessibility to abortion services remains a concern in the proposed bill as well. This problem is severely aggravated due to structural inequalities like class, caste, region, level of social development, and even gender as the bill allows abortion only to women, thereby disregarding the rights of trans-people and other non-women capable of conception and requiring these medical services. The bill mandates that the abortion process be performed only by Registered Medicine Practitioners (RMP’s) with a specialisation in gynecology or obstetrics; however most primary and community healthcare centers don’t have the staff or the equipment for the same. There is a 75% shortage of qualified doctors. This severe dearth of qualified professionals makes it hard to obtain even one RMP’s opinion before the procedure, effectively denying safe abortion to most women of the rural demographic. Only 53% of abortions are performed by a registered medical practitioner while the rest conducted by a nurse, midwife, dai, family member, or self. Hence, a first step needs to be better training, a wider provider base and provision of logistical support for supplies. The bill allows termination of pregnancy post 24 weeks upon the diagnosis of “substantial foetal abnormalities” and proposes the setting up of medical boards, with at least five experts. However, anyone seeking an abortion on grounds besides this (such as rape) post 24 weeks would still need to file a writ petition before the court. The feasibility of such measures is still debatable in urban areas, but it’s impractical to expect that people from rural or marginalized communities to consult such boards for permission. The bill doesn’t provide a timeframe in which the board’s decision needs to be taken. Delays made during such time-sensitive periods can have grave repercussions on the health of a woman.

Compromise of Privacy

Moreover, these proceedings often breach privacy, lead to stigmatisation and discomfort. The compulsory consultation with doctors for abortion after the pregnancy enters the second trimester and being subject to medical boards and court proceedings for abortions past the 24-week mark in violation of the Right to Privacy as affirmed by the Supreme Court. Additionally, the confidentiality clause in the bill ‘allows’ people authorised by the law to know the details of the person that has undergone medical termination of pregnancy. This not only compromises the privacy of the abortion-seeker but also places them at risk of being stigmatized, subsequently discouraging people from seeking a safe and legal abortion.

In the case of adolescents, the synthesis of the POCSO Act 2012 with MTP forms an inescapable vortex for teenage pregnancies resulting from consensual intercourse, therefore virtually eliminating any desire for privacy regarding abortion. The POCSO act maintains that all adolescent pregnancies be treated as rape victims, leading to the involvement of the judiciary and mandating parents’ consent for abortions. Hence, pregnant minors are forced to seek unsafe avenues to maintain confidentiality and avoid social and parental violence.

Conclusion

The new bill does address certain shortcomings of the previous legislation but is not rid of lacunas that deny many stakeholders their right to seek termination of pregnancy. No law should circumvent the agency of a person in favour of medical practitioners and courts. Many of its provisions are also detached from the grassroots reality of the reproductive care infrastructure of the country and disregard social barriers that propagate inaccessibility. Though it raises the time gestational limit on account of the advancement of technology, it fails to acknowledge the social advancement of our time by excluding non-women and perpetuating ableism through its language. Hence, the bill must be discussed with those it impacts most and also be referred to an expert committee.

About The Authors

Bhavika Behal is pursuing Master’s in political science from Lady Sri Ram College, University of Delhi, and graduated in Political Science Honors from Jesus and Mary College, University of Delhi. She has been an active debater and researcher, particularly interested in Indian Politics and jurisprudence

Sukeerat Kaur Channi graduated in Political Science from Sri Venkateswara College and is currently pursuing a Master’s in Journalism from Jamia Millia Islamia. She has previously worked as a researcher and content creator and hopes to specialize in political reporting and gender sensitization.