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Medical Termination of Pregnancy (Amendment) Act

  • Context (TH): The Delhi High Court has permitted a widow to terminate her 29-week pregnancy, though she had crossed the 24-week limit.
  • The woman was going through “immense trauma” and was showing “suicidal tendencies” after the death of her husband.
  • The court relied on a 2022 SC judgment, which held that “it is a woman’s prerogative to evaluate her life and arrive at the best course of action given a change in her material circumstances”.

Medical Termination of Pregnancy Act (MTPA), 2021

  • The Medical Termination of Pregnancy Act (MTPAA) 2021 amended the MTP Act 1971 to increase the upper gestation limit for termination of pregnancy under certain conditions.
  • “The MTPAA” was passed due to the advancement in medical science regarding safer abortions.
  • The MTPAA expands access to safe and legal abortion services on therapeutic, eugenic, humanitarian and social grounds to ensure universal access to comprehensive care.
  • MTP,1971, legalises abortion in India up to 20 weeks of pregnancy when provided by a registered medical practitioner (RMP) at a registered medical facility.
  • A written Consent of a guardian is required for termination of pregnancy in two cases-
    1. When a woman is below the age of 18 years or
    2. When a woman has a mental illness (irrespective of her age).
      • The MTP Act defines a guardian as someone who cares for the minor.
      • This does not imply that only parent/s are required to consent.

Features of MTPAA, 2021

  1. Termination due to Failure of Contraceptive Method or Device
  • A pregnancy may be terminated up to 20 weeks by a married woman in the case of failure of a contraceptive method or device.
  • It allows unmarried women to also terminate a pregnancy for this reason.
    1. Time limit and grounds for terminating a pregnancy
  • The 1971 Act specifies the grounds and time limit for terminating a pregnancy.
  • The MTPAA, 2021, amends these provisions.
    1. Upper Gestation Limit for Special Categories:
Time Since Conception Requirement for terminating Pregnancy
MTP Act, 1971 MTP (Amendment) Act, 2021
Up to 12 weeks Advice from one RMP Advice from one RMP
12 to 20 weeks Advice from two RMPs Advice from one RMP
20 to 24 weeks Not allowed Two RMPs for some categories of pregnant women
More than 24 weeks Not allowed Medical Board in case of substantial foetal abnormality
Any time during the pregnancy If immediately necessary to save a pregnant woman’s life
  • The Act Increases the upper gestation limit from 20 to 24 weeks for special categories of women.
  • This includes survivors of rape, victims of incest and other vulnerable women (differently abled women, minors, among others).
    1. Medical Boards
  • All state and UT governments will constitute a Medical Board.
  • The Board will decide if a pregnancy may be terminated after 24 weeks due to substantial foetal abnormalities.
  • The medical board is to provide a decision within three days of being approached.
    1. Confidentiality
  • The “name and other particulars of a woman whose pregnancy has been terminated shall not be revealed” except to a person authorised in any law that is currently in force.

Key Issues and Analysis

  1. Different opinions on Termination
  • Terminating a pregnancy is the choice of the pregnant woman and a part of her reproductive rights.
  • Another opinion is that the state must protect life and, hence, provide for the foetus’s protection.
    • Countries set varying conditions and time limits for allowing abortions based on foetal health and risk to the pregnant woman.
      1. Medical Board to decide termination only in some instances
  • The Act allows for termination of pregnancy after 24 weeks only in cases where a Medical Board diagnoses substantial foetal abnormalities.
  • This means for terminating pregnancies due to rape that have crossed the 24-week limit, there is no change in the process: the only recourse is to get permission through a Writ Petition.
    1. Categories of women who can terminate pregnancy between 20-24 weeks not specified
  • The Act allows specific categories of women to terminate their pregnancies between 20 and 24 weeks.
  • The GoI will notify these categories.
  • The categories of women should be specified by Parliament and not delegated to the government.
    1. Unclear if transgender persons will be covered
  • The Transgender Persons (Protections and Rights) Act, 2019, recognises transgender as an additional gender in India.
  • There have been cases where persons who identify as transgender can become pregnant even after receiving hormone therapy to transition from female to male.
  • Since the Act only provides for the termination of pregnancies in the case of women, it is unclear if transgender persons will be covered under the Bill.
    1. Issue related to “Viability of the foetus”- Ethical Issue
  • Viability implies the period from which a foetus can live outside the womb; as technology improves, this ‘viability’ naturally improves.
  • Currently, viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24. Thus, late termination of pregnancy may conflict with the viability of the foetus.
    1. Sex-selective abortion
  • The preference for a male child keeps sex determination centres in business, which is illegal.
  • There are concerns that a more liberal abortion law can aggravate this state of affairs.

Need for the MTPAA, 2021

  • Before MTPAA, 2021, women seeking to terminate the pregnancy beyond 20 weeks had to face the cumbersome legal recourse, denying them reproductive rights.
    • “This led to an increase in informal providers offering unsafe abortion services.”
    • A 2015 study in the India Journal of Medical Ethics noted that 10-13% of maternal deaths in India are due to unsafe abortions, making unsafe abortions the third-highest cause of maternal deaths in India.
  • The MTPA, 1971, lagged behind advancements in medical technology, allowing removal of a fetus at later stages of pregnancy.”
  • Certain fetal genetic abnormalities can only be identified after 20-21 weeks. The previous law did not allow abortion in those circumstances.

Significance of MTPAA, 2021:

  • The Bill will provide greater reproductive rights to women as abortion is considered an essential aspect of the reproductive health of women.
  • Deaths and injuries from unsafe abortions are largely preventable, provided services are performed legally by trained practitioners.
  • This will help in decreasing maternal morbidity and mortality.
  • The Act also applies to unmarried women and, therefore, relaxes one of the regressive clauses of the 1971 Act.

Medical Termination of Pregnancy & Global Practices

UK

  • A pregnancy may be terminated at any time:
    1. To protect the life of the woman,
    2. To prevent grave permanent injury to the physical or mental health of the woman or
    3. If the child is at risk of being seriously handicapped.

South Africa

  • A pregnancy may be terminated up to 12 weeks at the request of the woman.
  • Between 12 to 20 weeks if:
    1. It poses a risk to the mental or physical health of the woman,
    2. There is a risk of foetal abnormalities,
    3. It was caused due to rape, or
    4. continuing the pregnancy would affect the socio-economic circumstances of the woman.
    5. It is also permitted beyond 20 weeks if there is a risk to the life of the woman or the foetus or if there is a risk of foetal abnormalities.

USA

  • In the US, the law on abortion varies across states.
  • In 1973, the US SC ruled that abortion was legal.
  • However, some states, such as Alabama, ban abortions in almost all cases unless there is a severe health risk to the mother or if the foetus has a lethal anomaly.
  • Some states prohibit abortion after the foetal heartbeat can be detected or as early as six weeks (Georgia, Kentucky).
  • Some states allow abortions up until 24 weeks (New York)
  • Some states allow abortions til the foetus cannot survive outside the womb (California, Rhode Island) or if there is a risk to the woman’s health or risk of foetal abnormalities.

WHO

  • The World Health Organisation does not specify any maximum time limit after which a pregnancy should not be terminated.
    • According to a study, about 67% of the countries in the world require authorisation by at least one healthcare provider to undergo an abortion.
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