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On 17th March 2021, The Medical Termination of Pregnancy – MTP (Amendment) Act 2021 came into being, after being introduced as a Bill in 2020. But is it really as progressive as it is made out to be?
A minor rape survivor aged 15, who was denied permission to abort her foetus, died of pregnancy-related complications in Uttar Pradesh’s Bareily District in January this year as reported here. In this particular case, her family had come to know about her pregnancy only in December 2020 a couple of days after they came to know about her being raped.
As per reports, the accused threatened the girl not to reveal anything to her family. Hence, when her family came to know about her pregnancy and her father sought permission for aborting the foetus, it was denied, because her pregnancy was now of 6 months, and the Medical Termination of Pregnancy Act (MTP), 1971 did not permit abortion of a foetus beyond 20 weeks.
But should a law be followed with such stringency that no consideration is given to humane factors? Should a law even be framed in such a manner?
The MTP (Amendment) Bill 2020 was introduced to make the legislation governing termination of pregnancies in India more progressive, but now that the bill has become legislation (MTP (Amendment) Act, 2021), has it lived up to this expectation?
After this amendment, abortion is permitted between 20-24 weeks with the opinion of 2 medical practitioners. But the law still does not make exceptions for cases like the above case, neither are there specific provisions for dealing with the pregnancy of minors.
Anyone who even skims through the newspaper every day would know about the apathetic treatment meted out to a rape survivor; wouldn’t this trauma not be more pressing on a minor girl who is still coming to terms with her body and body functions? There have been cases where the survivor is as young as 10 or 11 years old. Under such circumstances, though Section 5 of the Act says that a medical practitioner may terminate such pregnancy if they consider it would be of threat to the pregnant woman’s life, the question remains – are doctors taking such steps pro-actively? Does merely increasing the cap on the gestational period solve the issue? Especially given the lack of sensitivity shown towards such cases, along with social taboo and shame associated with them?
Yes, the MTP (Amendment) Act 2021 is a welcome move, but it is not sufficient, as so much still needs to be done. Let us look at it in some detail.
The term ‘married woman and her husband’ has been replaced with ‘a woman and her partner’, and contraceptive failure is considered as a ground for abortion, as it may cause grave injury to the mental health of the woman. This is being touted as the most progressive aspect of this amendment.
This reminded me of a discussion years ago I had with a friend, whose mother practises as a gynaecologist in a relatively remote part of the country. She was telling me about women who would approach her mother for treatment after a botched-up abortion procedure done by an unqualified person in their village or some cases even inhuman methods would be used by them at home to abort the foetus. Even listening about the dire conditions in which these women would be brought to the doctor, left me pained and shocked; I cannot even imagine the pain and trauma they would have undergone.
With this amendment, an unmarried woman has the same rights as her married counterpart, which is indeed a welcome move, as this makes it safer for them to approach bonafide medical professionals. The concern still remains, that in a society that stigmatises pre-marital sex and pregancy, while the law ensures that a woman’s marital status does not come in the way of her seeking an abortion, will it change societal perception? Is the medical professional going to stop asking the details about your marital status? Will they abandon their judgmental viewpoint?
We all know the answer is sadly going to be no. A mental shift is essential for doctors as well as society for this law to be really effective in the way it is meant to be.
While this amendment is touted to be a progressive move, it does not contribute to strengthening the right to abortion, but continues to follow the need-based approach the legislation was originally formulated with, in 1971.
The legislation permits abortion only under specific circumstances, i.e.
~ where the pregnancy can cause a threat to the physical or mental health of the pregnant woman or
~ if the foetus has been diagnosed with substantial abnormalities by the medical board.
What about women who decide they do not want to continue with a pregnancy – what about their autonomy as equal citizens, over their bodies? As MP Ms Priyanka Chaturvedi states here, isn’t the woman’s choice and her right of decision making still being scrutinised and policed here?
If this woman is pregnant beyond 20 weeks she has to acquire the approval of two medical practitioners. This might be impractical in rural or semi urban areas. Yes, an abortion at an advanced stage of pregnancy could be dangerous to health of the woman, to the extent of being fatal, and a second medical opinion is preferred, but making her go through this additional bureaucratic hassle could mean her going in for an unsafe abortion option. If we are giving rights, can we explore ways of making them convenient as well as safe, while also giving autonomy?
Unable to ‘prove’ grave threat to physical/ mental health
Another point of contention will be if a woman cannot prove to the satisfaction of the authorities that continuing with the pregnancy would harm her physical or mental health, her right to an abortion gets threatened. This is especially true in women from marginalised communities, those without quick and easy access to sufficient medical testing and care, and those who do not have a voice in their life situations.
Rape and contraception failure are recognised as reasons for grave hurt to the mental health of the pregnant woman, but why should a woman have to justify her need for seeking termination of her pregnancy, when she should get it as a right?
Unwanted conception (for the woman) out of marital rape
A few months back when the web series Criminal Justice released, it re-ignited the debate and created much-needed awareness among the public at large about marital rape, not yet considered a crime in India, sadly.
Would, then, a victim of marital rape be deprived of her right to medically terminate her pregnancy? She may not be in a position to walk out of the marriage immediately; by forcing her to continue with a pregnancy despite her will, isn’t her hope and effort to escape the marriage limited even further? The fact that she has to justify her decision is in itself only furthering the trauma and distress she is suffering.
Sia was suffering from acute pain in her lower abdomen which did not subside despite medications. When her pain grew unbearable, her doctor wanted to do a thorough investigation to know the cause, but her husband was apprehensive of giving the consent sought from him, as Sia was pregnant, and he was worried the foetus could be harmed in the course of the tests done to know the cause of the pain. Eventually the pregnancy was discovered to be ectopic and the doctor declared that terminating the pregnancy was necessary to save Sia. But her husband continued to be apprehensive about consenting to the same.
This ‘requirement of a spouse’s consent’ is not a real requirement by law, and is just the added hassle seen in a patriarchal society that considers this behaviour by medical practitioners ‘normal’. The law states that a woman’s consent is sufficient to terminate the pregnancy if she is above 18 years of age. But that is seldom followed in actual practice.
The harrowing instances of women in abusive marriages, who are been denied abortion until their spouse consents are sadly a very common occurrence. Most public hospitals create hindrances for the woman seeking an abortion, the foremost being refusing to proceed further without spousal consent or delaying the procedure on frivolous or unreasonable grounds as reported here. Private hospitals remain the only safe option but these are expensive which few women can afford, again getting them into a situation that has them seek unsafe means.
The amendment has sadly, failed to look into this issue and does not provide any solution for addressing this issue effectively.
The current amendment to the MTP Act specifies that the gestational limit would not be applicable if the termination of pregnancy is necessitated after a diagnosis of substantial foetal abnormalities as stated here.
From a socio-economic perspective, this is definitely helpful to women who are not in a position to financially or emotionally to support a child with special needs. But that does not take away from the fact that this is only advancing the extremely negative social perception of treating people with special needs as a ‘burden’. There are activists and parents who are fighting strongly to change this perception, making their best efforts to ensure an equal and dignified life for people with special needs. But this legislation, by furthering the negative social perception is only making the path for change even more difficult to achieve.
The amendment is certainly a step forward in its inclusion of unmarried women under its umbrella. But for all the reasons given above, it is evident that the MTP (Amendment) Act 2021 does little to strengthen the right to abortion, which is a right connected strongly to the fundamental right to life and dignity of a woman, and against a patriarchal society’s control over a woman’s reproductive right. She still does not get a legal right over her own body, permitting only a needs-based approach.
With the legislation policing a woman’s basic right over her own body has this amendment become a reason for “regret in leisure” as feared by Ms Chaturvedi in her speech in the Parliament?
Image source: a still from the documentary Period. End of Sentence.
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