Medical Termination of Pregnancy (Amendment) Bill, 2020

inbatv Articles, Health, India, Legal Reforms

A remarkable amendment was passed by the Lok Sabha on 17th March 2020 in a relief to the suffering pregnant women of the country. The Medical Termination of Pregnancy (Amendment) Bill, 2020 was passed mainly to amend the Section 3 of the parent Medical Termination of Pregnancy Act, 1971 that provides maximum length of twenty weeks for termination of pregnancies by registered medical practitioners.

The Bill came in the light of developments and advancements of medical technologies in the present scenario. The Statement of Objects and Reasons of the Bill identifies that due to these advancements it is now possible to increase the upper time limit for termination of pregnancy to twenty-four weeks.

One of the main challenges which is present in the MTP Act is that the pregnant woman does not have the discretion or authority to decide whether to continue or terminate the pregnancy. It is the medical practitioner whose opinion matters. It is required by the medical practitioner to state, in good faith, that the pregnancy, if continued, would result in a risk to the life of the pregnant woman or would cause grave injury to her physical or mental health and a substantial risk of the child being suffering from a physical or mental abnormality, once born.

Though the physical abnormality or injury could be determined easily, but the question that arises is what would constitute a mental injury to the pregnant woman as it is subjective in nature.

The definition of mental injury to the pregnant woman is given in Explanation 2 of Section 3(2)(b) of the MTP Act. It is defined as if the pregnancy occurred due to a failed device or method used by either the woman or her husband to prevent the pregnancy, then the resulting pregnancy would be regarded as constituting a grave mental injury to the pregnant woman.

  1. A remarkable amendment was made in this provision by The Medical Termination of Pregnancy (Amendment) Bill, 2020 wherein the word “husband” was substituted with the word “partner”. This amendment is welcomed happily by people as it would widen the scope for termination of pregnancy which results not only by husbands but also by partners living in live-in relationships or even indulging in casual sexual relations. This bill widens the scope by eliminating the narrow definition of pregnancy under the Act of 1971 which was defined to be resulting from marriage only.
  2. Another amendment brought by the Bill is that in cases where the requirement for termination of pregnancy is the diagnosis of “substantial” foetal abnormalities by an authorized Medical Board, then the upper limit for termination provided under Section 3 of the Act would not be applicable. In cases like X vs. Union of India 2016, Tapasya Umesh vs. Union of India 2017, Meera Santosh Pal vs. Union of India 2017, Supreme Court has considered the termination of pregnancy due to substantial foetal abnormalities apart from the cases where only danger to the life of the women is considered. It shall be noted that no such provision exists for the same and it is due to the wise interpretation of the judges that this is possible and becomes a precedent across the judiciary of the country.

By introducing such creative amendments, the Bill still misses out on few provisions which are crucial in the long-run and need to be amended to meet the present scenarios of the society. Such as-

  1. The word “substantial” in substantial foetal abnormalities shall have been interpreted and defined to avoid confusions in the courts. An exhaustive list cannot be given, but some abnormalities could be mentioned so that the litigant is safe from the court’s discretion in determining whether the case fall in the “substantial” category.
  2. In India, the healthcare system and resources are limited, say less. Therefore, an amendment shall be made to replace “registered medical practitioners” with “registered healthcare providers”. This would enable the trained and qualified healthcare providers, such as Ayurveda or Homeopathy doctors or nurses, to carry out termination of non-high risk pregnancies.
  3. Also, few provisions must be added in the Act that determines the human rights of the pregnant women. Provisions which demand the reasons for abortion by “registered medical practitioners” are opposing to the personal choice of the pregnant women. Due to these criminalisation and hurdles, many of them take the way of illegal and unsafe abortions which are a risk to their lives. They work as barriers to safe abortions.

To conclude, it would be safe to say that the amendment has brought bold reforms in the out-dated parent Act of 1971, but it leaves a lot that need to be on par with the twenty-first century. The medical termination of pregnancy laws shall be made in the interest of the choice of the pregnant women with keeping in mind the other rights such as health and life. It was rightly held in K.S. Puttaswamy vs. Union of India (2017) that the woman’s right to terminate her pregnancy comes with her constitutional right to make reproductive choices and comes under personal liberty under Article 21 of the Constitution of India. And, therefore a pregnant woman’s freedom of choice to whether bear the child or not comes under the realm of privacy.

-Ayushi Mishra

Student Reporter INBA