Abortion Law Reform in India – An Analysis of the Medical Termination of Pregnancy (Amendment) Bill, 2020

Reading time: 2-3 minutes.

On March 17, 2020, the Lok Sabha passed The Medical Termination of Pregnancy (Amendment) Bill, 2020. The Statements of Objects and Reasons of the Bill state that several cases were filed in the Supreme Court and various High Courts, regarding abortion of pregnancies beyond the 20-week permissible limit.

This article analyses abortion law in India as it stands today and the changes which will be introduced by the passing of the Amendment Bill. It also delves into some challenges that the Bill has been unable to address.

Also read: Explained: Surrogacy (Regulation) Bill, 2019

Abortion Law In India

The Medical Termination of Pregnancy Act, 1971 allows for abortion on four occasions. Firstly, where 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. 

Secondly, where 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. Thirdly, when a pregnancy is alleged to have been caused by rape then, it is presumed to have caused a great mental injury. 

Lastly, where the pregnancy is caused by the failure of any contraceptive devices used by a married woman or her husband. The Act imposes an additional requirement of consultation with one doctor for abortion within 12 weeks and consultation with two doctors for abortion within 12-20 weeks. Beyond 20 weeks, termination of pregnancy is only allowed if in the doctor’s opinion, it is necessary to save the life of the woman.

Also read: Law Regarding Consensual Intercourse with Minors in India

This Act has been criticised on several grounds. One major concern was regarding the unfairness of an upper limit of 20 weeks, as most foetal abnormalities are detected after the expiration of this period.

The Act also did not give due consideration to the fact that in most cases of sex trafficking or rape, unwanted pregnancies are discovered at a later stage. Another concern was regarding the logistical issues faced by women living in rural areas.

There is a dearth of qualified medical practitioners and hence, consultation with more than one doctor becomes a challenge. Furthermore, the Act discriminates on the basis of the marital status of the women.

Under the Act, only married women could make the choice to abort due to failure of contraceptive devices. In light of all of these issues, the legislature introduced The Medical Termination of Pregnancy (Amendment) Bill, 2020.

Changes Introduced By The Bill

In a significant move, the Bill allows for termination of pregnancy up to 20 weeks with advice of only one doctor. Moreover, abortion up to 24 weeks has been legalised for vulnerable categories of women with the additional requirement of consultation with two doctors.

Under the 1971 Act, termination of pregnancy beyond 24 weeks was not allowed. However, the 2020 Amendment Bill sets up State level medical boards to examine cases where termination beyond 24 weeks is necessary due to substantial foetal abnormality.

Also read: Marital Rape: An unheeded issue

A remarkable step towards equality can be witnessed as the Bill replaces the phrase ‘married woman and her husband’ with ‘woman and her partner’, thereby easing the life of unmarried women.

The Bill also gives due regard to privacy and allows a registered medical practitioner to reveal the details of the woman to only people authorised by the law. Violation of this law has been made punishable with imprisonment up to a year, fine, or both.

Key Concerns Raised And Criticisms Of The Bill

Although the Bill has received positive recognition worldwide and is deemed as a progressive step towards empowering women, it is far from ideal. Termination of pregnancy in India is still based on a doctor-centric approach.

Most significantly, the 2020 Bill makes a distinction between the effect on mental health caused by pregnancy due to rape and pregnancy due to failure of contraceptives. The Bill provides that in cases of rape, the doctor ‘shall presume’ detriment to mental health and in cases of failure of contraceptives, the doctor ‘may presume’.

Even though the psychological harm caused to victims of rape cannot be overemphasised, this difference in standard of presumption provides a window to doctors to refuse women who end up with unwanted pregnancies due to failure of contraceptives.

The legislature still seems unable to reconcile with the fact that a woman’s right to reproductive autonomy is covered under Article 21, and this right must be the sole basis to proceed with the choice to terminate a pregnancy.

Also read: Explained: Community resources and Right to Life

The Bill also does not take into account the time sensitive nature of a pregnancy and provides no time frame within which the State Medical Board has to make a decision. Any delay may cause more complications for the woman.

Abortion law in India does not specify whether the Act is applicable to transgender women and the 2020 Bill provides no clarity on this matter. Furthermore, the Bill, by virtue of Section 5A seeks to protect the identity of the woman and penalises disclosure of identity to unauthorized persons with one-year imprisonment.

In this regard it may be argued that the provision overstates the repercussions of revealing the identity and gives in to the social abhorrence towards abortion.

Conclusion

The Medical Termination of Pregnancy (Amendment) Bill, 2020 is a step in the right direction. However, it leaves a lot to be desired. The Bill introduces an unreasonable classification between women even though medical research points towards the conclusion that there is no difference whether a pregnancy is terminated at 20 weeks or 28 weeks.

A woman’s right to make reproductive choices falls within personal liberty under Article 21 as held in the case of Suchita Srivastava v. State (UT of Chandigarh), (2009) 9 SCC 1. This position was reiterated in the case of K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1.

Also read: Data Protection Bill and Right to Privacy- An Analysis

Abortion laws in any country rely on one fundamental question – when does life begin? The answer to this question depends on a variety of factors which differ from culture to culture.

India is a secular country and our Supreme Court has time and again divorced itself from religious or moral beliefs. There has arisen a need for legislators to keep in mind that laws must be framed on the basis of constitutional morality rather than social morality.


Author: Aditi Soni from Chanakya National Law University (CNLU), Patna, India.

Editor: Astha Garg, Junior Editor, LexLife India.


Know your rights: Child care and maternity benefits in India

Reading time: 4-5 minutes.

In the year 2017, India passed a landmark amendment in the laws regarding maternity and child care. There are certain amendments made to the Maternity Benefit Act, 1961 to protect the employment of women and the well being of children and women during the maternity period.

These amendments are called out to be required ones needed to match up to the modern age. Benefits like paid absence from work and other related requirements are added in the act via the said amendment. The new amended act is applicable to any organization or establishment hiring 10 or more employees working for a minimum period of 80 days in the immediately preceding 12 months period of the delivery date.

These amendments to the act have been regarded as an important step towards the inclusion of women into the workforce. It will be a cure for the botched-up gender ratio in the enterprises. But as every coin has two sides, these amendments are also not sans their own set of criticism.

What is the background of these benefits?

The Maternity Benefit Act was first introduced in India in the Legislative Council of Bombay on 28th of July, 1928. This act came up with certain important objectives and purposes that it sought to fulfil. The main objective of this act was to regulate the employment of women for the duration of her pregnancy along with a certain duration before and after the delivery.

The applicability of this act is upon any organization be it a factory, min, plantation, government establishment or anything where at least 10 or more people are employed at a time. Before the 2017 amendment, the provisions were slightly different but with the amendment of 2017 there have been several changes in the maternity benefits. The bill for this amendment was placed in the parliament in 2016 while was passed in the year 2017.

What are the maternity benefits available in India?

In order to protect the rights of the working women during their pregnancy period and even after child-birth, the Indian law makes it a necessity for most of the employers to offer maternity benefits to their women employees. Maternity benefits in India are majorly governed by the Maternity Benefit Act, 1961 which has been recently amended in the year 2017 and applies to all establishments with 10 or more employees. There are several maternity benefits provided to the employees:

  • Wages: The act provides that women will be paid maternity benefit at the rate of their average daily wage in 3 months preceding their maternity leave.
  • Leaves: The act provides for a maternity leave up to 26 weeks if the employee has less than 2 surviving children. In case there two surviving children, the maximum maternity benefit is up to 12 weeks. Even in cases of adoption, where a woman is adopting a child of less than 3 months, she can take a maternity leave of 12 weeks from the date of receiving such child.
  • Other benefits: The law also allows employers to permit women employees to work from home in addition to the maternity benefit period. The amendment also made it compulsory for establishments with more than 50 employees to establish creches (nurseries where babies are cared for during the working day). And the women employees are permitted to visit the creche four times a day which includes their interval period. The employer cannot dismiss a woman for taking maternity leave. Medical bonus will also have to be paid by the employer. 

What child-care benefits are available in India?

For a regular Indian employee, there is an extremely important child care benefit that is available to them. Indian employees are eligible to receive a child care reimbursement of up to Rs. 8000/- per month per child for up to three children. There are two kinds of reimbursements available under this law based on the age of the child, namely:

  • Nanny care expenses: For children up to 3 years.
  • Day-care expenses: For children up to 10 years.

This reimbursement child care facility comes along with the creche facility available under the maternity benefit. This benefit is taxable.

Criticism and scope for further improvement:

While the idea behind such an amendment has been extremely strong and appreciative, it comes with its own set of financial burden for the employer. And thus, the implementation of these amendments has become an even more challenging task. One of the major challenges as faced by the employers is to find a trustworthy and right partner for the provision of creche facilities in the establishment.

The ambiguity in the said rules have also been cited as one of the major criticisms of the amendments of the act. Although, these amendments were brought in with the purpose of reducing the gender inequality at the working spaces, it seems that the challenges set up in the implementation of these rules have led to an even poorer condition of women at their workplaces, as many establishments have started hiring less women due to these rules. With the new amendment, there are several other criticisms that are there as well:

  • Gender discrimination against women based on child-bearing age.
  • Various types of burdens on the employer.
  • Women will lose out on their jobs.

In conclusion…

In the modern age, it has become extremely important to have a gender inclusive workplace. However, it is also important to understand that the challenges in terms of implementation of these amended rules have to be covered first. Besides struggling with financial constraints like bearing the additional costs and loss of business hours in the process of supporting working parents, organizations also have to deal with the biases that the society holds.

While large MNCs like Accenture, HUL, Infosys and IBM have had strong policies around a gender inclusive culture, other organizations are now catching up and introducing initiatives to build a gender inclusive culture. 

This article is brought to you in collaboration with Aprajita Jha from National Law University and Judicial Academy, Assam.

Analysis: Delhi HC Judgement on Termination of Pregnancy

Reading time: 2-3 minutes.

The High Court of Delhi established precedence by permitting termination of 25-week foetus diagnosed with congenital anomaly. The Hon’ble court enunciated that “rigours of section 3(2) can be relaxed where the conditions of foetus is incompatible with life”.

MTP (Medical Termination of Pregnancy) Act, 1971 is the statutory law that governs the termination of pregnancy. With another court granting permission to terminate post 20-week foetus, the long-drawn debate over the much-needed amendment in the MTP Act has once again become the bone of contention.

In the light of the precedence established by Delhi Court, this post will attempt to briefly explain the MTP act and enunciate the loopholes of this 48 old law on termination of pregnancy.

What exactly does the MTP Act say?

Medical Termination of Pregnancy Act was passed in the year 1971 in the light of rising frequency and maternal deaths due to lack of proper amenities. MTP regulates the abortion provisions. Some of the hallmarks of MTP act are:

  • A doctor can perform abortion if the pregnancy is harmful to pregnant woman’s life or mental health. Or if there is good chance that delivery of the child would seriously affect her mental and physical being.
  • Pregnancy can be terminated by medical practitioner: (a) where the length of the pregnancy does not exceed 12-weeks (b) where the length of the pregnancy exceeds 12-weeks but does not exceed 20-weeks, only in special circumstances.
  • Pregnancy may be terminated in a hospital established or maintained by government, or a place approved by the government.

What are the problems with this law?

To begin with, this Act puts a bar on termination of pregnancy transcending 20 weeks. The reason behind this was that it was medically dangerous at that time (in 1971) to terminate pregnancy beyond that maturity period. However, medical facilities have advanced significantly since then and now it is possible to have safe termination of pregnancy beyond 20 weeks.

Also, this act offends the feminist perspective by allowing healthcare providers to have the final say on abortion instead of the concerned woman herself. It creates an environment where women feel like being at the mercy of their healthcare providers.

What is the current status of this law?

In 2014, the Ministry of Health and Family Welfare released a draft of the MTP (Amendment) Bill, 2014. It proposes changes that could initiate a shift in the focus of the Indian abortion discourse from healthcare providers to women. The Bill also expands the base of healthcare providers by including mid-level and non-allopathic healthcare providers.

Additionally, the clause extending the gestational limit could trigger ethical debates on eugenic abortions and sex-selective abortions. Stated simply, it means that this bill seeks to address the shortcomings of the previous law by empowering women to take decision about the termination of her pregnancy even beyond 20 weeks. This bill must be enacted soon.

In conclusion…

The High Court of Delhi has given a progressive judgement and reiterated the need for amendment in the MTP Act. The said law is outdated as explained above. The government has taken a positive step by proposing an amendment in the law. We hope to see the realization of this amendment soon.