Note4Students

Medical termination of pregnancy has many dimensions. Indian legal system had considered the women’s right to choose her pregnancy as a moral and ethical problem. Legal system often took narrow stand regarding the abortion of pregnancy under special circumstances. Social mentality also doesn’t recognize the women’s autonomy over her own body. MTP amendment trying address all these issues. So this topic is important in the backdrop of union government’s decision of introduction the amendment bill.

Introduction

• In India, the 1971 Medical Termination of Pregnancy Act, while allowing abortions under a broad range of circumstances, can be considered a conservative law from a feminist perspective.
• The Act allows healthcare providers rather than women seeking abortion to have the final say on abortion, and creates an environment within which women are made dependent on their healthcare providers.
• The draft Medical Termination of Pregnancy (Amendment) Bill of 2014 seeks to amend Section 3 of the principle The Medical Termination of Pregnancy Act of 1971 to provide that “the length of pregnancy shall not apply” in a decision to abort a foetus diagnosed with “substantial foetal abnormalities as may be prescribed”.
• The Medical Termination of Pregnancy (MTP) Act in India was amended in 2003 to facilitate better implementation and increase access for women especially in the private health sector. However, unsafe abortions are widely prevalent even 40 years after the Act came into force.

Analysis

Recent Developements

1. On more than one occasion, the court has rejected abortion petitions on the ground that its hands are tied by the MTP Act.
2. In January, it did allow a rape victim to abort a 24-week old foetus that had severe abnormalities, but only after a panel of doctors ruled that the pregnancy could put her life in danger
3. The Supreme Court declined a woman’s plea to abort her 26-week-old foetus detected with Down’s syndrome. The women argued that it was the woman’s constitutional right to terminate her pregnancy.
4. It was contended that the congenital abnormality found in her foetus and the woman’s anguish about the future were the reasons for her decision.
5. The court refused permission for abortion, calling the foetus “a life”. It said the Medical Termination of Pregnancy Act of 1971 places a 20-week ceiling on termination of pregnancy.

Social aspects of abortion

1. Abortion is seen as a complex and thorny socio-political subject with religious and moral dimensions in almost all countries.
2. LEGALITY: Its legality is like a double-edged sword because of the misuse it can and does unleash.
3. CULTURALLY: An issue of feminist and humanist rights, it also gets invariably mixed with cultural attitudes, family superstitions and moral tugs of war.
4. SOCIAL ATTITUDE: Even women who wish to abort (within the legally allowed 20 weeks) are not viewed kindly. They are stalked by judgement even if the decision to abort stems from the husband’s choice. India has perhaps the highest number of abortions related to female foeticide and sex determination, but making an elective choice to abort a baby (considered God’s own blessing) for the mother’s comfort and readiness or a couple’s financial situation is eyed with scepticism, even seen as sin.
5. Many Indian couples hide abortions from family elders for fear of moral judgement. very few Indians discuss abortion openly even today.

Analysis of MTP Act 1971

1. MTP Act 1971 does not allow abortions above the gestational age of 20 weeks.
2. However, legal experts have argued that medical science and technology have made the 20-week ceiling redundant and that conclusive determination of foetal abnormality is possible in most cases after the 20th week of gestational age.
3. Under the 1971 Act, even pregnant rape victims cannot abort after 20 weeks, compelling them to move court.

Important Feature of proposed Bill

1. FOCUS: Proposed changes could initiate a shift in the focus of the Indian abortion discourse from healthcare providers to women.
2. Such a shift would decrease the vulnerability of women within the clinical setting and free them from subjective interpretations of the law.
3. HEALTHCARE PROVIDERS: The Bill also expands the base of healthcare providers by including mid-level and non-allopathic healthcare providers. While the medical community has resisted this inclusion.
4. The Bill amends Section 3 of the principle Act of 1971 to provide that “the length of pregnancy shall not apply” in a decision to abort a foetus diagnosed with “substantial foetal abnormalities as may be prescribed”.
5. They do away with the need for the court’s sanction for aborting a more than 20-week old pregnancy
6. Increasing the legal limit for abortion from 20 weeks to 24 weeks,
7. AUTONOMY IN THE DECISION: The draft Bill allows a woman to take an independent decision in consultation with a registered health-care provider, if the pregnancy involves substantial risks to the mother or child, or if it is “alleged by the pregnant woman to have been caused by rape”.
8. RAPE VICTIMS: Significantly, the draft recognises that “rape may be presumed to constitute a grave injury to the mental health of the pregnant woman, and that such an injury could be a ground for allowing abortion
9. CAPACITY DEVELOPMENT: The draft law also takes into account the reality of a massive shortage of both doctors and trained midwives, and seeks to allow Ayurveda, Unani and Siddha practitioners to carry out abortions, albeit only through medical means, and not surgical ones.

Why Medical Termination Amendment Bill Is Required

1. Haresh and Niketa Mehta case, the Bombay high court observed that only the legislature could address the demand for change in the legal limit.
2. Unanimity among medico-legal experts : the MTP act has failed to keep up with changes in science. They argue that foetal abnormalities show up after 18 weeks and a two-week window after that is too small for the parents to take the difficult call on keeping their baby. The growing number of sexual crimes against women and the need to empower them with sexual rights have also made it imperative that the MTP Act be changed.
3. According to data from The Registrar General of India, Sample Registration System (2001-03), unsafe abortions contribute to 8% of the total maternal deaths. Making out a strong case to amend the Act to increase the availability of safe and legal abortions in India, all stakeholders argue that unsafe abortions still continue to outnumber safe and legal abortions in the country.
4. At least 3% of the 26 million births annually in India involve severe foetal abnormalities.
5. SC AS LAST RESORT: With the 2014 Bill in limbo, the Supreme Court is the last resort of the affected people. The Court has agreed to look into whether a wider interpretation ought to be given to phrases like “risk to the life of the pregnant woman” and “grave injury to her physical and mental health”.
6. ETHICAL ASPECT :Even though the apex court remarked that it was a matter of “life versus life”, its decision in favour of the woman is a pragmatic, life-affirming verdict—instead of one based on moral and sentimental considerations.
7. in the face of the high rates of unsafe abortion, such a step is both ethical and necessary
8. Legal and medical experts feel that a revision of the legal limit for abortion is long overdue. Foetal abnormalities show up only by 18 weeks, so just a two-week window after that is too small for the would-be parents to take the difficult call on whether to keep their baby. Even for the medical practitioner, this window is too small to exhaust all possible options before advising the patient to take the extreme step.
9. Again, the 45 years since the enactment of the law has seen technology break new grounds — from ultrasound to magnetic resonance imaging to a range of high-end foetal monitoring devices that have taken prenatal diagnosis far beyond the illegal sex determination tests that have refused to die out completely.
10. The rising incidence of sex crimes, and the urgent need to empower women with sexual rights and choices both in their own interest and for the sake of reducing the fertility rate as a whole, have made it imperative that the law be changed. In any case — and what is far more worrying — is the fact that the lack of legal approval does not prevent abortions from being carried out beyond 20 weeks. And they are done in shady, unhygienic conditions by untrained, unqualified quacks, putting thousands of women at risk probably every day.

Conclusion

1. The Bill recognise a woman’s right to self-determination and autonomy (although such recognition is limited to the first trimester),
2. It also represents something of a shift in the focus of the abortion law in India from the healthcare provider to the woman undergoing abortion.
3. Such a shift decreases the vulnerability of women within the clinical setting and frees them from subjective interpretations of the abortion law.

Questions

Q)“Medical termination of pregnancy bill recognizes the autonomous right of a woman to abort the foetus under special circumstances.”  analyse