On 16th March 2021, the Indian Parliament passed the Medical Termination of Pregnancy (Amendment) Bill 2020 to Medical Termination of Pregnancy Act (MTPA) 1971, which regulates abortion in India. The new law extends the gestation period of abortion from 20 to 24 weeks. It is also for the first time when an unmarried and single pregnant woman was placed on an equal pedestal with a married woman thereby expanding the original scope of MTPA.
However, the new law, happens to disregard the ‘reproductive autonomy’ of women in abortion. As a result, it has attracted a lot of criticism from the civil society.
While many experts believe that MTPA is a progressive law but in reality it reflects the patriarchal understanding of family planning as a measure of population control and not reproductive autonomy of women. It enables formation of medical boards to examine each case and thereafter allow or disallow abortion.
The discourse surrounding abortion laws in India always hinges on extremes of pro-choice (reproductive autonomy of a woman or her exercise of choice of abortion on demand) or pro-life (duty of the state to protect every life). It is quintessential in this pretext to read observations by constitutional bench on reproductive rights, principles of liberty, autonomy, and dignity in the context of abortion in KS Puttaswamy v. Union of India.
It has now ignited a pertinent debate in the legal corridors and has broadened the scope of reproductive rights and woman autonomy in India which the new law fails to take into account.
Regulating abortion in India
Abortion was legally restricted in almost every country by the end of the nineteenth century. This regressive approach worldwide was a product of not only ethical, religious or medical callings but an ideological struggle contesting the meaning of life, family and sexuality. It was only after Roe v. Wade when the global community started taking a liberal stand on abortion and permitting abortion in some cases.
For India it was only in year 1971 when it provided, on recommendations of Shantilal Shah Committee, exemptions for abortion under Medical Termination of Pregnancy (MTP). Pre MTP in India abortion was a criminal offence under the Indian Penal Code (IPC) 1860.
“Causing Miscarriage” was criminalised under sections 312-316 under the IPC which was dependent on different weeks of gestation. With recent MTPA 2020 Amendment, the gestation period has been increased for abortion but this is not as simple as it sounds, it has its own share of complex legal-medico and technical nuances.
The provision comes with certain qualifications, it allows abortion only “if continuing the pregnancy would involve a risk of grave injury to the women’s physical or mental health or there is a substantial risk of foetal abnormalities”. If a pregnancy is caused by rape or a failure of contraception, then it is presumed that the continuation of pregnancy could constitute grave injury to a woman’s mental health.
While placing an unmarried woman in a similar position to married in MTPA is a welcome step. However the question of autonomy of a woman over her body in pretext of her choice is still not available. The law continues to hold a woman’s decision to abort by requiring endorsement by one or two medical practitioners for an abortion within 20 or 24 weeks respectively.
Even within the 24-week period, a woman can only seek abortion for the reasons set out in the law and not on request, as available in Singapore or Canada. In this regard Supreme Court in Suchitra Srivastava v. Chandigarh Administration took a liberal stand and upheld reproductive rights of women relying on the “best interest standard” but it was never exercised in essence on ground, either by courts or by subsequent governments.
Right to privacy and reproductive autonomy
Justice Chandrachud in the Puttuswamy judgment (in 2017) traced how access to contraception and abortion are intrinsic to due process and focused on decisional autonomy for abortion as a part of privacy. While reading liberty as an indispensable element of privacy, Justice Chandrachud cited that there cannot be ‘unreasonable’ restriction on liberty and shall be permissible in curtailment of any fundamental right which satisfies the constitutional test of reasonableness.
However, a major challenge against this constitutional right is India’s poor health infrastructure and low literacy levels. As per a 2018 Lancet study, India has 47 abortions per 1,000 women in the age group of 15-49. Thousands of women face preventable death due to a lack of affordable, accessible contraceptive options, social stigma and a lack of awareness of laws.
These factors restrict the application of pro-choice right for a woman. This leads to a significant question: whether a constitutional right of liberty can be restricted on the grounds of poor health infra and low levels of literacy?
Severyna Magill in her research paper published in University of Oxford Human Rights Hub Journal argues, “Puttuswamy has failed to take into account how the majority of women due to non-availability of quality infrastructure are negatively impacted on reproductive health.”
Woman’s right to make a reproductive choice is a dimension of personal liberty which is recognized under Article 21 of the constitution, reaffirmed as an essential part of right to privacy in the case of Puttaswamy. Yet, the MTPA has failed to recognize abortion on choice or reproductive autonomy as a right.
Indian society needs to correct its patriarchal understanding on abortion laws and let the woman chose for her bodily autonomy. Further, it is responsibility of the state to undoubtedly provide for a safe health infrastructure, as the right of abortion is inclusive of ‘safe abortion’. Also, the denial to woman to exercise reproductive autonomy for abortion on demand is in direct conflict with the fundamental right to privacy, which might be challenged in the coming times.
(Anubhav is Co-founder of The Analysis. He tweets at @iam_anubhav)
The article was originally published in Comparative Law E-Newsletter, Maharashtra National Law University, Aurangabad.
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