The Bombay High Court has allowed a married woman to terminate her 33-week pregnancy after the foetus was detected with severe abnormalities. The Court noted that the length of the pregnancy did not matter, as the petitioner had taken an “informed decision” and only she had a “right to choose whether to continue with the pregnancy or not and not the medical board.”

The Supreme Court, July 2022, allowed an unmarried woman, whose relationship status changed during the pregnancy, to terminate her 24-week foetus.

“Petitioner should not be denied the benefit merely on the ground that she is an unmarried woman,” the bench said.Underlining that a distinction in law between a married and an unmarried woman should have no bearing on the right to terminate a pregnancy,

The Central law on abortion, The Medical Termination of Pregnancy Act,1971 (MTP Act), allows termination of pregnancy for all women in the first 20 weeks on the opinion of a registered medical practitioner. However, only certain categories of women are allowed termination between 20-24 weeks under certain circumstances.

Rule 3B of Rules annexed to the MTP Act, which was amended in 2021, specify seven categories of women who are eligible for termination between 20-24 weeks. These are: survivors of sexual assault or rape or incest; minors; those who have a change of marital status during the ongoing pregnancy (widowhood and divorce); women with physical disabilities; mentally ill women; women carrying malformed foetus that has substantial risk of being incompatible with life; and women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the government.

While the law recognises change in circumstances of the relationship status between a pregnant woman and her spouse — in the case of divorce and widowhood — it does not envisage the situation for unmarried women.

For pregnancies between 20-24 weeks old, the opinion of two doctors is required — they would have to determine “if the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health” or there is a “substantial risk” that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously “handicapped”, before agreeing to terminate the woman’s pregnancy.

          LEARNING FROM HOME/ WITHOUT CLASSES/ BASICS

            In landmark cases such as Suchita Srivastava v. Chandigarh Admin and Devika Biswas v. Union of India, the Supreme Court has

held a woman’s reproductive autonomy to be her fundamental right to privacy, that right to reproductive autonomy is an integral part of Right to Life under Article 21 of Constitution of India. 

The Apex Court stressed that a medical procedure of abortion cannot be carried out on a woman if she has not consented to it. Hence, the right to reproductive autonomy was held as a Fundamental Right.

In its decision, the Supreme Court unequivocally held that Article 21 includes the “reproductive rights of a person.” The Supreme Court recognized reproductive rights as both part of the right to health as well as an aspect of personal liberty under Article 21, and defined such rights to include the right to “access a range of reproductive health information, goods, facilities and services to enable individuals to make informed, free, and responsible decisions about their reproductive behaviour.” The Supreme Court found that “the freedom to exercise these reproductive rights would include the right to make a choice regarding sterilization on the basis of informed consent and free from any form of coercion.

            In March 2020, the Government  amended the 1971 Medical Termination of Pregnancy (MTP) Act

                                                      The amendment has raised the upper limit of MTP from 20 to 24 weeks for women including rape survivors, victims of incest, differently abled women and minors.

                   Failure of contraception is also acknowledged and MTP is now available to “any woman or her partner” replacing the old provision for “only married woman or her husband.” the change also accepts failure of contraception as a valid reason for abortion not just in married but also in unmarried women. The amendment includes the formation of a medical board in each state, which will decide whether an abortion can be performed or not

                                 The upper gestation limit will not apply in cases of substantial foetal abnormalities diagnosed by a Medical Board. 

                          If pregnancy has to be terminated in 20 weeks, the opinion of one doctor is required. But beyond that, opinion of two doctors would be needed and one of them has to be a government physician.

LEARNING WITH TIMES

Medical Termination of Pregnancy Act of 1971

• The law largely allows a woman to abort only if continuance of the pregnancy, according to a medical practitioner, involves a risk to her life; grave physical or mental injury; or risk of serious foetal abnormalities. This is the case even in case the pregnancy is less than 12 weeks old.
• Abortion, as per the 1971 Act, is not permissible after 20 weeks of pregnancy; now changed to 24 weeks; only favour “special categories of women”, which include rape survivors, victims of incest, those who are differently-abled and minors.
• While it protects married woman by allowing them to terminate an “unplanned and unwanted pregnancy, the same is not extended to single women” now amended,
• The Act does not allow abortion of pregnancy in the case of minors or mentally ill persons without the consent of the guardian.

GAPS IN THE AMENDMENT

The amendment to the act does little to change the strict paternalistic doctor-centric framework of the Act whereby the decision of abortion vests with the doctor and not the pregnant person. Consequently, abortion remains a conditional provision and not an absolute right. The Bill fails to give women the reproductive autonomy they deserve and continues to provide abortion using a needs-based approach rather than a rights-based approach.

Abortions beyond 24 weeks are only allowed for pregnancies involving “substantial foetal abnormalities” and are not permitted for pregnancies resulting from rape which have exceeded the 24-week limit. In such cases, the pregnant woman is forced to pursue judicial intervention to obtain permission for abortion, which is often a lengthy and cumbersome process.

The Amendment Act does not provide any time frame within which the Medical Board must render its decision. This is becomes extremely concerning because abortions are highly time-sensitive and the lack of statutory time limits can result in complications for the pregnant woman

Throughout the Act, the term ‘pregnant woman’ is used, implying that only women can seek abortions. This overlooks already overlooked groups like transgenders, inter-sex & gender-diverse individuals who might require an abortion.

The Amendment Act makes no attempt to alter the terminology from ‘pregnant woman’ to ‘pregnant person’ and hence, fails to ensure equal access to abortions to all individuals, irrespective of their gender identity.