Current Legislative Framework on MTP
The MTP Act, 1971 was adopted nearly five decades ago with the aim of “providing for the termination of certain pregnancies by registered medical practitioners.” The law does not frame abortion from a women’s rights perspective, but instead focuses on establishing where registered medical providers are exempt from penalties under the Indian Penal Code (IPC) with regard to causing miscarriage and fetal death.
Under the MTP Act, 1971 a registered medical provider is authorized to provide an abortion to a woman whose pregnancy does not exceed 12 weeks if the provider has formed a “good faith opinion” that the continuation of pregnancy would involve a risk to the woman’s life or mental or physical health, or if there is a substantial risk that the child would be born with “physical or mental abnormalities as to be seriously handicapped.” When the woman’s pregnancy exceeds 12 weeks and is less than 20 weeks, at least two providers are needed to form this opinion. When the pregnancy exceeds 20 weeks, Section 5 of the MTP Act authorizes an abortion only when the provider has formed a “good faith” opinion that an abortion is “immediately necessary” to save the life of the pregnant woman.
There is no judicial authorization requirement in the MTP Act. Rather, the law establishes that “. . . a registered medical practitioner shall not be guilty of any offense . . . if any pregnancy is terminated by him in accordance with the provisions of this Act.” The law thus exempts the provider from damages if he or she has provided an abortion based on a “good faith” belief that it falls within the purview of the law. Despite this, providers continue to fear legal penalties under the MTP Act and often require women to seek judicial authorization to terminate their pregnancies beyond 20 weeks. These fears are compounded by providers’ concerns of investigation and harassment for performing MTP under other laws.
Why Women and Girls Need Access to MTP after 20 Weeks
Abortions later in pregnancy are extremely rare. Although recent data is lacking, a 1996 study in rural Maharashtra has found that only 3% of MTPs took place after 20 weeks. However, for each woman or girl who seeks such an abortion, the denial of safe and legal abortion carries serious and foreseeable risks to her physical and mental health by forcing the continuation of pregnancy or leading her to resort to a clandestine or unsafe abortion. Women and girls need access to MTPs after 20 weeks for several reasons, including where there have been procedural barriers causing delays in accessing services and in circumstances where pregnancy or pregnancy-related risks were only recognized after the 20- week mark.
Delays in Accessing Safe Abortions Caused by Legal and Practical Barriers
Legal and practical barriers are a serious impediment to women’s and girls’ ability to access safe abortion services without delays. In spite of being legal, “approximately 50 percent of abortions in India are estimated to be unsafe, and unsafe abortion is estimated to account for nine to 20 percent of all maternal deaths”. This percentage is similar to the incidence in countries where abortion is completely illegal.
A significant barrier women and girls face in accessing safe, timely and legal abortion services is the inadequate numbers of registered health care providers trained to provide abortion services and a dearth of facilities that are properly equipped to perform the procedure. These shortages remain throughout India, despite policy guarantees requiring abortion services be available in all government health facilities. Women in poor, rural areas are disproportionately affected by these barriers.
Women and girls also seek abortions after 20 weeks when circumstances shift significantly or where there are delays in recognizing pregnancy. Certain health complications for the pregnant woman may only come to light after 20 weeks, as has been the case for many of the petitioners in the post-20 week cases in India. Frequently, in the case of rape victims, the pregnancy itself may not even be discovered until well into the second or third trimesters. For women and girls in this situation, the forced continuation of pregnancy is linked to foreseeable and preventable physical and mental health harm.
Understanding Recent Cases on MTP after 20 Weeks
Although the MTP Act does not require judicial authorization for abortion, the Supreme Court and High Courts across the country have been undertaking a case-by-case analysis to approve or deny abortions for women and girls beyond 20 weeks of pregnancy. There have been at least 25 such cases since 2015. These cases typically involved pregnant women who received a diagnosis of fetal impairment or pregnant adolescents who were victims of rape. The decisions have been mixed – even in cases with petitioners seeking terminations in seemingly similar circumstances – leading to confusion about the law and the need for reform.
However, there have also been contradictory judgments, leading to a lack of clarity as to when a woman or girl is legally permitted to obtain an MTP beyond 20 weeks. Courts have not established a clear framework to determine when an MTP is legal beyond 20 weeks, how to eliminate the need for judicial and medical board authorization, and how to address the underlying issue of providers’ unwillingness to authorize legal abortions.
Decisions issued in post-20 week cases clearly recognize that the denial of MTP can lead to mental and physical suffering and constitute a fundamental rights violation. It is also critical to note that both high courts and the Supreme Court have recognized the need for reform of the law, although the Supreme Court has stated that it cannot amend the MTP Act as this is in the legislature’s purview.
The MTP (Amendment) Bill, 2020
On January 29, 2020, the Union Cabinet approved MTP (Amendment) Bill, 2020. The MTP (Amendment) Bill, 2020 has been drafted “for cases in which doctors diagnose foetal abnormalities or substantial risks to the mother or child until 24 weeks of pregnancy ”. The proposed amendments to MTP Act, 1971 focus on improving the scope of legal access to MTP for special categories of women, which includes survivors of rape, victims of incest, single women and other vulnerable women. A change in law permitting termination of pregnancy upto 24 weeks will be promising greater reproductive rights for Indian women. But the Bill is yet to be introduced in either houses of Parliament. The aged and outdated MTP Act, 1971 ignoring the pace of changing times and medical advancements, continues to be a hinderance in reproductive rights of women in India.
The need for law reform is urgent. The post-20 week cases reflect the dichotomy in India’s legal framework on abortion, with judges on one hand recognizing reproductive rights to be “sacrosanct,” and on the other establishing a third-party authorization procedure that arbitrarily interferes with pregnant women’s and girls’ reproductive decision making and, at times, leads to the forced continuation of pregnancy. Each day that passes without reform contributes to the “incalculable harm” and “prolonged suffering” that courts themselves have recognized pregnant women and girls seeking MTP after 20 weeks experience under the current legal framework. The Indian government must act to end this grave human rights violation. The MTP (Amendment) Bill, 2020 is a step towards increasing access of women to safe abortion services.
Dr. Priti Rana
Faculty of Law,
University of Delhi