Even though the new Medical Termination of Pregnancy (Amendment) Act, 2021 ‘MTP act’ achieves some ever-evolving changes in the law of pregnancy termination, it does practically nothing to change the severe paternalistic specialist driven system of the Act by which the choice of fetus removal vests with the specialist and not the pregnant individual. Subsequently, fetus removal stays a restrictive arrangement and not a flat-out right. The Bill neglects to give a person regenerative independence and keeps on giving fetus removal utilizing a necessities form of methodology rather than a right form of methodology.
This article shall discuss some of the fair changes laid down in the rules along with the various measures that could have been brought about as well.
The medical termination act, 2021- a conditional or an absolute right?
On receiving the presidential assent on the 25th of March, the Medical Termination of Pregnancy (Amendment)Act, 2021/ ‘mtp act’ became operational. The main aim of these new rules was to provide a safer measure for a legal abortion without being compromised and primary care. The then Medical Termination of Pregnancy act, 1971 overruled Section 312 of the Indian Penal Code which criminalizes any act of abortion, by permitting to go for the medical termination of a fetus before the 12 weeks mentioned with just the permission of one medical practitioner or two of them if the period is above 12 and below 20 weeks.
New abortion rules: things which one should know:
Firstly, a state-level board needs to be set up if a pregnant woman wishes to abort her pregnancy within the time limit of 20-24 weeks. Secondly, the medical board upon examining the reports shall see whether the conditions for abortion as per law are met or not. On the grant of the permission for abortion, shall administer the abortion and check over the fact whether the abortion has been done safely with all precautions or not. Counseling sessions for the woman have o be arranged as well. the conclusion of the pregnancy needs to be done within five days of the Board receiving the request for the same.
Let us discuss the fair changes put forward in this amendment and go for an analysis as to what needed to be changed.
Revised upper limits of Gestation
The new rules have welcomed that the MTP act has responded to the thought of giving married women and unmarried women equal status when it comes to her as an individual who is a victim of contraceptive failures. Other significant changes include the increase in the time until one can have an abortion i.e., up to 24 weeks.
The Rule suggests that the upper limit is however only restricted to “vulnerable women including rape survivors, victims of incest, disabled women”. It also comprises cases of fetal anomalies causing a risk of physical or mental abnormalities, cases of mentally ill women, and women in disasters or emergencies as stated by the government in the rules. But nowhere has there been mentioned substantial fetal abnormalities as recognized by the Authorities. There is no upper limit per se relating to this problem.
A lengthy and cumbersome judicial intervention
The term “any woman and her partner” does not include the transgender community and their right to abort per se. the amendment act had not altered the term woman to a person. Abortions after 24 weeks must be consulted by a Medial Board which shall decide whether there is sufficient ground for terminating the pregnancy. the reader of this article should understand that the board has powers to do its work and that is fine. But the round table conference to be held to discuss a topic for days on a woman’s private life is never appreciated. This is not a crime against the state which we are talking about but the sheer conflict between the right to life of an unborn child and the right to privacy as enshrined under our sacred Constitution. the landmark case of Puttuswamy and various other landmark judgments have time and against reiterated and expanded the meaning of privacy and that everyone has the right to enjoy it.
The time within which the board shall be deciding on the matter has not been explicitly provided in the legislation. Thus, any sort of delay can cause serious medical complications for the pregnant person. In the case of abortions beyond 24 weeks, the ground for abortion is clear and that is only for fetal malformation.
Necessity of a third-party intervention
The MTP act Amendment remains silent on the will of the pregnant person and that person only. The opinion of a registered medical practitioner is needed for abortion. So it indicates that the sole consent of the pregnant person is not relevant. Almost 67 countries have given pregnant women the liberty to pursue an abortion even without the requisition of an opinion from a third party.
A fundamental right to privacy
In the case of Suchita Srivastava v. Chandigarh Admin [(2009) 14 SCR 989], the Supreme Court of India renders that a woman’s reproductive autonomy is her fundamental right to privacy and that her decision to keep a child or not is her sole decision without any State intervention. The Amendment Act does not meet this judicial standard.
The law resumes to make a woman’s decision go unheard of that an abortion can be permitted after two medical practitioners give the thumbs up. In this 24-week time, the woman can only go for abortions as set in the law and not on her grounds as is available in Singapore or Canada. Privacy is a woman’s right it is each citizen’s right, it is the main actor in the preservation of individual autonomy and giving the person that power to control his/ her life. There is nothing worse than a woman having to throw away her reproductive freedom to the law.
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