Explained - Changes in 1971 abortion law, and why India feels it necessary

Source: Indian Express dated 01.02.2020

-- Abantika Ghosh

A look at what the Medical Termination of Pregnancy (Amendment) Bill, 2020 says, and why it was brought in.

Earlier this week, the Union Cabinet cleared a long-pending change to the Medical Termination of Pregnancy Act, 1971 that raises the legally permissible limit for an abortion to 24 weeks from the current 20 weeks. Following the efforts of the Health Ministry, the change also accepts failure of contraception as a valid reason for abortion not just in married but also in unmarried women.

A look at what the Medical Termination of Pregnancy (Amendment) Bill, 2020 says, and why it was brought in:

What changes does the Medical Termination of Pregnancy (Amendment) Bill, 2020 bring in?

It increases the maximum permissible gestation age for abortion to 24 weeks, with the proviso that for pregnancies that are between 20-24 weeks opinions will be required from two doctors rather than one. This has been specially done keeping in mind “vulnerable women including survivors of rape, victims of incest and other vulnerable women (like differently-abled women, Minors) etc”.

The upper gestation limit will not apply in cases of substantial foetal abnormalities diagnosed by a Medical Board. The composition, functions and other details of the Medical Board are to be prescribed subsequently in Rules under the Act. This clause has been put to keep such cases out of courts; the government deemed a Medical Board should examine the various aspects of the case and take a call.

According to a government statement: “The Medical Termination of Pregnancy (Amendment) Bill, 2020 is for expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarianor social grounds… It is a step towards safety and well-being of the women and many women will be benefited by this. Recently several petitions were received by the Courts seeking permission for aborting pregnancies at a gestational age beyond the present permissible limit on grounds of foetal abnormalities or pregnancies due to sexual violence faced by women. The proposed increase in gestational age will ensure dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy.”

The original draft of the Bill had included the contraceptive failure clause only for married women, which, the Health Ministry has now felt, would have left unmarried women, on whom social pressures to abort are more acute, at the mercy of quacks. That is why in 2016, it sent a recommendation that failure of contraception should be accepted as a legal reason to abort not just in married but also unmarried women. It was accepted.

How overdue are the amendments?

A national discourse on amendments needed to the MTP Act, 1971 in view of advancement of medical technologies dates back to 2008 when Haresh and Niketa Mehta petitioned the Bombay High Court to allow them to abort their 26-week-old foetus who had been diagnosed with a heart defect. It made the point that pre-natal diagnosis of defects had come a long way – and some defects could be revealed after 20 weeks has passed. The Mehtas’ plea was turned down on expert advice. But the court’s observation that only the legislature could address the demand for change in the legal limit meant that India had started the process of re-evaluating provisions of the Medical Termination of Pregnancy Act, 1971. Niketa Mehta, incidentally, had a miscarriage soon after the verdict.

Since then, many cases have gone up to the Supreme Court asking for permission to abort beyond the legally permissible limit, often involving victims of sexual crimes.

Why is the change in law significant?

Despite a sustained government push over years, contraceptive use in India is not very popular. According to a 2018 study by the Guttmacher Institute, 50% of pregnancies in six of the larger Indian states — Assam, Bihar, Gujarat, Madhya Pradesh, Tamil Nadu and Uttar Pradesh — are unintended. Data from the National Family Health Survey 4 show that just 47.8% of couples in the country use modern contraceptive methods; only 53% use any method at all. It found that 55% pregnancies in Assam, 48% in Bihar, 53% in Gujarat, 50% in Madhya Pradesh, 43% in Tamil Nadu and 49% in Uttar Pradesh are unintended. The number of pregnancies ranged from 1,430,000 in Assam to 10,026,000 in Uttar Pradesh. Estimation of unintended pregnancies is important because many of them result in abortions and the availability of cheap and safe abortion services is one of the indicators of a robust health system.

According to a 2016 study published in The Lancet by the Guttmacher Institute and the World Health Organization, an estimated 56 million abortions took place globally each year between 2010 and 2014. In 2015, a study in The Lancet Global Health, also by Guttmacher Institute and IIPS, estimated that 15.6 million abortions were performed in India in 2015. This translates to an abortion rate of 47 per 1,000 women aged 15-49, which is similar to the abortion rate in neighboring countries.