The article highlights key changes the Medical Termination of Pregnancy (Amendment) Bill, 2021 seeks to make in the 1971 Act and also deals with the issues with some of these changes.

Key changes

• The 1971 Act had moral biases against sexual relationships outside marriage, adopts an ableist approach and carries a strong eugenic emphasis.
• In addition to preventing danger to the life or risk to physical or mental health of the woman, “eugenic grounds” were recognised as a specific category for legally permissible abortions.
• To deal with these issues the Medical Termination of Pregnancy (Amendment) Bill, 2021 was passed by the parliament.
• The bill is being hailed for two reasons:
• First, the bill replaces “any married woman or her husband” with “any woman or her partner” while contemplating termination of pregnancies resulting from contraception failures, thus ostensibly destigmatising pregnancies outside marriage.
• Second, the time limit within which pregnancies are legally terminable is increased.

Issues with the Bill

1) Scope for executive overreach

• The bill raises the upper gestational limits for the two categories of permissible abortions envisioned in Section 3(2) of the 1971 Act.
• Limit for the first category in which pregnancies are terminable subject to the opinion of one medical practitioner is raised from 12 weeks to 20 weeks.
• The limit for the second category in which pregnancies are terminable subject to the opinion of two medical practitioners is raised to include those exceeding 20 but not exceeding 24 weeks, instead of the present category of cases exceeding 12 but not exceeding 20 weeks.
• However, the second category is left ambiguous and open to potential executive overreach insofar as it may be further narrowed down by rules made by the executive.

2) Rejection of the bodily autonomy of women

• Pregnancies are allowed to be terminated only where:
• 1) Continuance of the pregnancy would “prejudice the life of the pregnant woman.
• 2) Or cause grave injury to her mental or physical health”
• 3) Or “if the child were born it would suffer from any serious physical or mental abnormality.”
• As such, the bill seeks to cater to women “who need to terminate pregnancy” as against “women who want to terminate pregnancy.”
•  By not accounting for the right to abortion at will the Bill effectively cripples women’s bodily autonomy.

3) Ableist approach

• A woman’s right to terminate the pregnancy of a child likely to suffer from physical or mental anomalies or one diagnosed with foetal abnormalities, on socio-economic grounds or otherwise, merits recognition.
• However, in treating “physical or mental disability” or “foetal abnormalities” as separate categories amounting to heightened circumstances for termination of pregnancies, the bill reveals its ableist approach.
• This evidences a presumption that certain people are by default societally unproductive, undesirable and somehow more justifiably eliminable than others.
• This ableism becomes stark when the said 24-week limit, which is purportedly dictated by scientific and legislative wisdom, is completely lifted where the termination of a pregnancy involves “substantial foetal abnormalities”.

4) Dichotomy in allowing termination beyond 24 weeks

• When read together with Section 3(2B) of the bill, a strange dichotomy emerges:
• 1) It is either the case that medical advancement is such that a safe abortion is possible at any point in the term of pregnancy, and hence, the bill allows it in case of “substantial foetal abnormalities” .
• Or that, a 24-week ceiling is scientifically essential and abortions beyond the said limit would pose risks to the health of the pregnant woman or the foetus.
• If it is the former, then allowing termination only in cases of “substantial foetal abnormalities” is a fictitious and moralistic classification.
• If it is the latter, then the secondary status of women’s safety and the dominant eugenic tenor of the bill once again becomes evident.

Need to sensitise healthcare provider

• Access to abortion facilities is limited not just by legislative barriers but also the fear of judgment from medical practitioners.
• It is imperative that healthcare providers be sensitised towards being scientific, objective and compassionate in their approach to abortions notwithstanding the woman’s marital status.

Consider the question “What are the changes the Medical Termination of Pregnancy (Amendment) Bill, 2021 seeks to make in the 1971 Act. Discuss the issues with the changed provision in the Act.

Conclusion

In KS Puttaswamy v Union of India, the Supreme Court recognised women’s constitutional right to “abstain from procreating” was read into the right to privacy, dignity and bodily autonomy. The MTPA Bill falls short of meeting this constitutional standard and its own stated objectives.

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