Analyzing the Medical Termination of Pregnancy (Amendment) Act, 2021

Introduction:

Medical termination of pregnancy has been a matter of debate in a lot of countries. This is largely based upon the traditional beliefs and principles that are being followed by the people of these countries.[1] In India, the issues have been largely resolved and legislations are present there for any clashes that may present themselves in the future. This is a new amendment that has recently come into effect from 24^th September 2021. This act aims to provide women with their reproductive rights as abortion is a procedure related to the sexual health of the women and they must have the right to protect themselves.

Benefits

The medical termination of pregnancy (amendment) act, 2021 is aimed at extending the timeframe that previously stood at 12 and 20 weeks for respective conditions. If a person wanted to have an abortion within 12 weeks from the date of conceivement then only one doctor’s opinion was required to terminate the pregnancy in this time frame, now in this amendment the time limit has been increased from 12 weeks to 20 weeks. In the second case, the woman had the option to abort the pregnancy in 12 to 20 weeks and she would require the consent of two doctors now this time limit has also been increased to 20 to 24 weeks. This condition is only applicable to specific categories of women.[2] The specific categories of women that are mentioned include incest victims, rape victims, vulnerable women which include differently-abled women and adolescents. This is done to provide the vulnerable section of the women with an extra layer of protection against society and help them in making an informed decision regarding the same.

These are not the only conditions when an abortion can be performed. In case of a medical emergency like an accident or an anomaly found in the fetus the abortion can be performed but to determine the impact of the accident or the anomaly a medical board is to be formed in every state or union territory. The board must include medical practitioners like a gynecologist, pediatrician, radiologist, and such other members as may be notified by the official gazette from the government. In addition to this, the medical practitioner cannot disclose the identity of the woman who is undergoing an abortion as it would move against the right of privacy. It can only be disclosed to the members authorized by law.  If any medical personnel fail to maintain the confidentiality of the identity of the women then such personnel must be penalized according to the latest amendment. This would further help in improving confidentiality and trust in the system.

The amendment is aimed at the future as it contains the provision for unmarried women. This can be inferred from the replacement of the phrase “married lady or her spouse” with “women or her partner”. This means that any woman who is undergoing pregnancy and falls into the categories defined can undergo abortion and need not be married at the time of abortion being performed. This would empower women to take decisions relating to their lives and maintain their sexual health.

Criticism

The amendment can give rise to sex-determined abortions as numerous sex determination centers still operate inside the country despite being illegal this would put an additional burden on the law enforcement agencies and society. This means that a rise in abortions is expected and the necessary infrastructure to handle this situation is not present in the country.

The Amendment puts a heavy burden on the doctors as they are solely responsible for the abortion of the fetus. If there is any complication that may arise while diagnosing the patient or the diagnosis that is done by the doctor is incorrect or the doctor is not competent enough to advise the patient on that matter, then also one is at risk of making a decision that is based upon faulty facts and the parties must not be bound to take the advice of only one doctor. [3]It must be at the discretion of the parties regarding the no. of doctors they can consult before deciding between the abortions or continuing with the pregnancy.

The problem of morals and ethics also arises with this amendment as it gives power to unmarried women to decide upon the status of their pregnancy. The women are not obligated to take someone’s advice regarding the same but it is the responsibility of the doctor to take the last decision. The doctor can face social, moral, and ethical hurdles as the unmarried women might not want to abort the child but the parents of the women want to because of the marital status of the women, the married woman wants to abort the child but the husband does not want to, If the woman does not want to abort the child but the husband of the woman wants to, a rape victim does not want to abort the child by the parents of the victim want to. All these situations would create problems in society.  All these situations are unanswered by the amendment and it is left upon the discretion of the court and the doctors to decide upon the matter. Doctors are ill-equipped to handle such a situation as they lack the legal knowledge and expertise that are required to understand the situation and act accordingly.

The burden on the judiciary would also increase as substantial questions of law have not been answered by the amendment and thus would limit the use and applicability of the statute in general use. This would create a harmful situation as the court will interpret the words and not the depth of the amendment and thus the meaning of the statute can be analyzed completely different from the intended meaning.

No timeframe is binding the medical committee formed by the government to provide expert opinion on different cases and hence the decision taken by the committee for the abortion might become irrelevant after a point of time as there is no upper limit for the same. [4]This is a huge problem as the court would rely upon the findings of the committee and would still require some time even after receiving the findings of the committee to pass the judgment as it would need to answer the question of law that would be present in the case.

The amendment does not include provisions for the transgender as of now. The ambit of the word women has not been defined by the amendment and it is unclear whether it is wide enough to include the word transgender or not. This in a way hinders the progress of the society as it shows that the legislature is still divided between men and women and still finds it difficult to recognize the third gender.

Conclusion

The present amendment is progressive as it looks beyond the horizon of pregnancy only after marriage and provides the right to women even before the marriage. This means that the legislature is trying to progress forward and make certain steps towards making our society progressive but at the same time, the amendment fails to answer substantial questions of law and make the whole statute redundant. This has to be resolved by the legislature as this would have a long-term impact on our society.

The legislature is trying to be progressive as reflected in this amendment but still makes the provision gender-centric which would make the overall progress made by the statute irrelevant. The court has to step up and take the charge. This has been defined in the case of [5]Mahima Yadav vs. the Government of NCT of Delhi and Ors. In this case, the petitioner wanted to have an abortion after the 24-week timeline had passed. The petitioner got the fetus examined and found out that there were some complications with the fetus and thus would result in an abnormal delivery. She wanted to have an abortion and the same was granted by the Delhi high court. This judgment was appreciated and welcomed with open arms as the court was flexible and able to adjust to the needs of the individual cases.

The amendment is fitting to the immediate needs of the society as it considers the rights of women before marriage and grants them the power to make decisions regarding their own body but it will not be suitable in the long term as it fails to answer some of the most important questions of law.

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References:

[1] Analysing: Constitutionality of Medical Termination of Pregnancy (Amendment) act 2021, Lexlife India (2021), https://lexlife.in/2021/05/11/analysis-constitutionality-of-medical-termination-of-pregnancy-amendment-act-2021/ (Last visited Oct 20, 2021)

[2] Sarabjit kaur, Analyzing the Medical Termination of Pregnancy (Amendment) Act 2021, The daily guardian (2021), https://thedailyguardian.com/analysis-of-the-medical-termination-of-pregnancy-amendment-act-2021/ (Last visited on Oct 19, 2021)

^[3] Sneha Mahawar, Significance of the Medical Termination of Pregnancy (Amendment) Act, 2021 in light of the case of Mahima Yadav v. GNCTD, Blog.ipleaders (August 23, 2021), https://blog.ipleaders.in/significance-medical-termination-pregnancy-amendment-act-2021-light-case-mahima-yadav-v-gnctd/ (Last visited on Oct 21, 2021)

[4] Sneha Rao, The Medical Termination of Pregnancy (Amendment) Act, 2021- Progressive But Not Far Enough (Oct 2, 2021) https://www.livelaw.in/know-the-law/medical-termination-of-pregnancy-amendment-act-2021-analysis-drawbacks-182913 (Last visited on Oct 21, 2021)

[5] Mahima Yadav vs. Government of NCT of Delhi and Ors. [W.P.(C) 4117/2021]