MEDICAL TERMINATION OF PREGNANCY AMENDMENT ACT, 2021 & LATEST SUPREME COURT DECISION

Rajya Sabha on 16 March 2021 passed MTP Amendment Bill 2020 by Voice Vote. Lok Sabha has already approved the bill last year on 17th March 2020. This bill ensure that women get access to safe & legal abortion services on therapeutic (i.e. -medical), eugenic (i.e. - to improve genetic quality of human population) and on humanitarian grounds. This bill allows abortion up to 24 weeks for special categories of women from the existing 20 weeks gestation period.

This bill seeks to amend MTP Act 1971. It provides for enhancing the upper gestation limit from 20 to 24 weeks but does not specify the category. The bill leaves the categories to be defined by states in the amendments to the MTP rules and includes survivors of rape, victims of Incest – (i.e. Sexual intercourse between persons too closely to marry), other vulnerable women like differently abled women and minors.

Abortion requires the opinion of one doctor if it is done within 12 weeks of conception and two doctors if it is done between 12 - 20 weeks. Now this bill allows abortion up to 20 weeks on the advice of one doctor and two doctors in the case of certain categories of women between 20 - 24 weeks.

This bill also sets up State Level Medical Boards to decide if a Pregnancy is to be terminated after 24 weeks in case of SUBSTANTIAL FOETAL ABNORMALITIES.

After getting the accent of the President, the Bill became the Medical Termination of Pregnancy (Amendment) Act, 2021 and came into force on 24th September 2021.

The Central Government on 12th October 2021 notified the Medical Termination of Pregnancy (Amendment) Rules, 2021 that allows termination of pregnancy up to 24 weeks for certain categories of women under newly enacted Rules as follows—

(1) Survivors of sexual assault or rape or incest;

(2) Minors;

(3) Change of marital status during the ongoing pregnancy (widowhood and divorce);

(4) Women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

(5) Mentally ill women including mental retardation;

(6) The foetal malformation that has a substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(7) Women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the government.

The Amendment Act 2021 provides for mandatory formation of a medical board duly constituted by the respective State government or UT administration at approved facilities. It provides that the opinion for medical termination of pregnancy beyond 24 weeks gestation period will be given by a medical board. Two registered medical practitioners eligible as per the new rules will perform the termination of pregnancy based on the decision of the medical board.

Further, the newly enacted Medical Termination of Pregnancy (Amendment) Rules, 2021 also provides that the Medical Board shall have the power "to allow or deny termination of pregnancy beyond 24 weeks of gestation period only after due consideration and ensuring that the procedure would be safe for the woman at that gestation age and whether the foetal malformation has substantial risk of it being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped."

LATEST RULING OF SUPREME COURT

In case X vs. Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, Supreme Court on 29 September 2022 ruled that unmarried women are also entitled to seek abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship. The court ruled that exclusion of unmarried women who conceives out of live-in-relationship from the Medical Termination of Pregnancy rules is unconstitutional.

All women are entitled to safe and legal abortion and medical termination of pregnancy act 2021 does not make a distinction between married and unmarried women.

The issue related to whether the exclusion of unmarried women, whose pregnancy arises out of a consensual relationship, from rule 3B of the Medical Termination of Pregnancy Act, 2021 is valid.

The Supreme court ruled- Distinction between married and unmarried women unsustainable. The artificial distinction between married and unmarried women can not be sustained. Women must have the autonomy to have free exercise of these rights. The rights of reproduction autonomy give an unmarried woman similar rights as a married woman. Including only married and excluding unmarried women will be violative of article 14 of the constitution. The decision to terminate is firmly rooted in their right to bodily autonomy. If the state forces a woman to carry an unwanted pregnancy to full term, it will amount to an affront to her dignity.

There is no basis to deny an unmarried woman the right to medically terminate the pregnancy when the same choice is available to other categories of women.

By this ruling SC grants abortion rights for marital rape. This is the first legal recognition of marital rape. The pregnancy of a married woman due to forcible sex by her husband can be treated as rape under the MTP Act 2021.

The court, in a historic judgement on abortion, removed the distinction between a married and unmarried woman, in the MTP Act 2021 and said even the latter can undergo abortion up to 24 weeks of pregnancy; extended the freedom to transpeople (in this case, biological women who identify as men) and minor; and said that the woman herself, obviating the need for consent from her family.

In its ruling, the court held that an “artificial distinction between married and single women is not constitutionally sustainable” since it is not only in direct conflict with a woman’s reproductive rights but would also perpetuate the stereotype that only married women have sex.

Delivering the path-breaking verdict the right to reproductive autonomy supported by the right to access safe and legal abortion, a bench headed by justice Dhananjay Y Chandrachud also directed that the identity of a minor, who becomes pregnant after “consensual” sex, need not be disclosed by a medical practitioner to the police or in any criminal proceeding under the prevention of Children from Sexual Offences (Pocso) Act.

Pocso obligates doctors to compulsorily inform the police when a minor approaches for abortion through her guardian since sex with a minor is a crime. The court said protection of a minor’s identity on a request made by her or her guardian would strike a balance between the legal requirement to compulsorily inform the police about an offence under Pocso and the minor’s rights to privacy and reproductive autonomy.

Medical experts have welcomed the verdict and stated that this will help to promote safe abortion.