Friday, 28 January 2022

Medical Termination of Pregnancy

 Introduction

The Medical Termination of Pregnancy (Amendment) Act, 2021 alters the Medical Termination Pregnancy Act, 1971.To know what is the new amendment and what was the need for an amendment, we must look at the previous Medical Termination Pregnancy Act,1971.

Medical termination of pregnancy Act, 1971

Before 1971, it was illegal to abort a child under section 45 of the Indian Penal Code. Thus there was a need to enact a law which can regulate abortions in India. In 1971, The Medical termination of Pregnancy Act legalized abortion in India. 

                 Section 3(2)(a) states that, “A pregnancy may be terminated by a registered medical practitioner, where the length of the pregnancy does not exceed 12 weeks.” 

                Section 3(2)(b) states that, “A pregnancy may be terminated by two registered medical practitioner where the length of the pregnancy exceeds 12 weeks but does not exceeds 20 weeks.” However, this required 2medical registered practitioners. This pregnancy can be terminated if registered medical practitioners is of opinion that-

  • The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health.

  • There is a substantial risk that if the child were born, it would suffer from such physical or medical abnormalities as to be serious handicapped.

Under this Act, if a pregnant woman is below the age of 18 years, then, to terminate her pregnancy, the consent of her parents/guardians must be taken. Also if a pregnant woman is above the age of 18 years, then her consent is must for terminating her pregnancy. 

Only a hospital established or maintained by government, or a place for the time being approved for the purpose of this act by the government, is allowed to terminate pregnancy. If termination happens elsewhere, it is illegal. Exceptions to these are that if any time during the pregnancy, a doctor can terminate the pregnancy of a woman if it is immediately necessary to save the life of the pregnant woman. 

Concerns over the Medical termination of Pregnancy Act, 1971

This 50 year old act does not cope up with the new generation. In India, according to some reports, approximately, 80% of abortions that occur in India are outside health facilities. Unsafe abortions are the 3rd leading cause of maternal deaths in India. On a daily basis, 10 to 13 women die due to unsafe abortions. 

              Many women were approaching the court to seek approval for abortions over 20 weeks. Most of these pleas are due to fetal anomalies that are detected late and in cases of sexual assault, rape of minors in particularly. In many fetal anomalies can be detected after 20 weeks. There was ambiguity around the provisions in the act for unmarried women to terminate pregnancy due to contraceptive failure. There was a considered amount of stigma attached to having a non-marital pregnancy or birth. For pregnancy above 12 weeks, the consent of 2 week registered medical practitioners was required. This was challenging in rural areas where even 1 practitioner is difficult to find.

Medical Termination of Pregnancy Amendment Act of 2021

Thus, the Delhi High Court has allowed the medical termination of pregnancy of a woman who had completed 22 weeks of gestation as the fetus was suffering from multiple abnormalities. Now, pregnancy up to 20 weeks can be terminated with advice of one registered medical petitioner and termination of pregnancy up to 24 weeks can take place with the advice of two registered medical practitioners. The amendment also allows unmarried women to terminate a pregnancy. The act says that a pregnancy may be terminated up to 20 weeks in case of failure of contraceptive method or device. The act says that all the States and Union Territories will constitute a Medical Board which will decide if a pregnancy may be terminated after 24 weeks due to significant fetal abnormalities. This implies that there is no change provision for terminating pregnancies due to rape that have crossed 24 weeks limit. The old resource that is to file a writ would still be there for such cases.

                 The biggest loophole of this new amendment is that there is no time frame for medical board’s decision within which the board must make its decision. Thus, it can happen that the baby is already out before the medical board pronounces any decision. 

              The registered medical practitioners cannot reveal the details of a woman whose pregnancy has been terminated. A person authorized by law is an exception. The violator will be punished with imprisonment up to a year, a fine or both. 

          The amendment, however, does not make it clear whether the transgender persons would be covered under this bill or not. 

Conclusion

It is commendable that the Central Government has taken such a bold stand while balancing the diverse cultures, traditions and schools of thought that our country maintains, however the amendment still leaves women with various conditionalities, which in many cases become an impediment in access to safe abortion.

 


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