Medical Termination of Pregnancy (Amendment) Bill, 2020: A directive towards access to safe abortions in India

April 13, 2020

Abortion InformationNo Comments

In India, until 1971, abortion was a criminal act unless proved that it was performed to save the life of the woman. There used to be imprisonment for women who deliberately terminated their pregnancy.

Do you know when and how did abortion law in India first come into force? If, “NO”, here are the key highlights for your reference.

Introduction to the legalization of abortion in India:

When the number of abortions and the associated complications started to increase in the 1960s, the Ministry of Health and Family Welfare (MoHFW) was alarmed. This was the first time when the concept of abortion law first came into being in India. Though it was already present in 15 other countries at that time, but for India, it was the first time.

To draft the abortion law, the government of India set up a committee led by Shantilal Shah. The task entrusted with the committee was to bring in suggestions for drafting the first-ever abortion law in the country.

After a complete assessment of the prevailing socio-cultural, legal and medical aspects of abortions in India, suggestions were introduced in the parliament as the Medical Termination of Pregnancy Bill. The bill was passed and received legal acceptance to present to the country, the Medical Termination of Pregnancy Act, 1971 (MTP Act, 1971).

With increasing awareness and concern for women’s health, many amendments have been suggested and brought into real-time practice after abortion was made legal; the latest being the MTP Bill, 2020.

Why was it necessary to make abortion legal?

In your opinion, was it possible to have a safe abortion without it being legal? Had it been legal, Indian women would not have suffered at the hands of unsafe abortions. Several factors enticed the government to make the abortions in India legal under certain circumstances. Some of these are briefed below along with their significance.

• Abortion statistics in India: Every year, around 15.6 million abortions take place in the country.¹ Isn’t the figure astonishingly high? Adding to more element of shock is that nearly 70% or higher is performed at uncertified centres by untrained professionals making them being categorized as unsafe.Unsafe abortions are the third largest cause of maternal mortality in India. Unsafe abortions lead to mortality of approximately 10 women daily.
• Women’s access to Comprehensive Abortion Care (CAC): Indian women had no deemed right to give their consent for abortion. Most of the times, due to fear of abortion being a criminal act, women resorted to secret abortions. This posed a great deal of threat to their health presenting them with either disabilities or death as the consequence.These factors curtailed Indian women and they could not have access to safe and legal abortion services.
• Women’s Health: Making abortion legal and safe with guidelines to be followed while conducting the procedures was looked upon as the only factor that can safeguard Indian women lives due to unsafe abortions.

Key elements of abortion law in India:

The abortion law in India holds three important segments of the abortion sector to provide women with CAC. These are:

1. Healthcare providers and professionals who can terminate the pregnancy: Only certified medical practitioners can legally terminate a pregnancy. Healthcare professionals are supposed to meet the following requirements:
   • They should have a recognized medical qualification under the Indian Medical Council Act.
   • Their names should be registered in the respective state Medical Registers.
   • They should have sufficient experience and training in gynaecology and obstetrics.
2. Gestation age: Until the introduction of MTP Bill, 2020, abortion was legal under some circumstances up till the gestation age of 20 weeks. With the amendment to the existing abortion law, this term has been extended by four weeks. This makes an abortion legal up to 24 weeks of gestation under some circumstances like that of fetal anomalies which are generally confirmed in second trimester.
3. MTP Centres: Not every hospital or nursing home is accredited with the facilities to carry out abortion procedures. An abortion can be legally conducted only at the MTP certified centres. Only, the centres that are fully equipped with the professional staff, technical equipment and comply with all the guidelines for CAC are certified and approved to provide abortion services legally. Any MTP centre receives approval and certification from the District Level Committee (DLC) of the concerned area.
4. Consent: Before abortion was made legal, women had no right to seek an abortion. This was one of the major reasons contributing to unsafe abortions throughout the country. But with the introduction of abortion law, women were empowered to seek an abortion legally with their own consent. Consent of guardians is required only if the girl is a minor or is differently-abled.

 First Amendment to the abortion law in India:

The first MTP Act amendment was instituted in 2002 to be called as MTP Act Amendments, 2002. The key amendments were:

• Decentralization of the process for the grant of approval to private centres. This was done to increase the number of certified MTP providers at district levels.
• Change in language for the word ‘lunatic’ to ‘mentally ill person.’ The change was done to medically define the woman’s illness in case she cannot consciously or judiciously give her consent for the abortion.
• Introduction of strict action against providers and uncertified centres if found to conduct illegal MTP procedures. Hence, it was necessary that women seeking abortion visit certified MTP centres to have access to CAC.

To ease the implementation of the laid down amendments to the MTP Act, the rules were framed in 2003 to be called as the MTP Rules, 2003.

All the detailed requirements for certification of centres and healthcare providers were improved and introduced as the MTP Rules and Regulations, 2003. Reporting and documentation were made essential as a part of these rules.

According to these rules, the DLC composition was suggested so that certification is issued only to the centres complying with the standards laid for them. The guidelines on facilities, equipment and drugs were crafted. Inspection checks, approvals, cancellations were all made comprehensive as different parts of the MTP Rules, 2003.

Second Amendment to the abortion law in India:

 Some amendments were further necessary to be brought in the existing laws to further strengthen CAC services to Indian women. After complete assessment of the challenges faced by women while seeking an abortion, Medical termination of Pregnancy Amendment Bill 2014 was introduced.

Some of its key elements were:

• Increasing the healthcare provider base by also certifying healthcare practitioners with training and knowledge in systems of medicine other than allopathy.
• Increasing the gestation length that is legally permissible for an abortion.
• Though abortion is performed by a single practitioner, but opinion had to be taken from two RMPs. This prevented many women from reaching out at certified MTP centres for safe abortions. In the amendment, it was proposed that opinion can be sought from a single practitioner up to 20 weeks of gestation.
• Including unmarried women in circumstances where they seek abortion for pregnancies resulting as a failure of contraceptives. Until then, the provision was legally permissible only for married women.
• Defining certain terms with definition carrying a broader message. Also suggested was the substitution of certain terms such as registered medical practitioner to a healthcare provider.

Some of the changes were accepted and revised CAC guidelines were issued in 2014. And standardized CAC training package was introduced that included trainer’s manual, provider’s manual, and operational guidelines along with Standard Operating Procedures.

How is abortion law in India, 2020 different from the existing law?

Do you know how the MTP Act, 2020 has brought as a relief for women seeking legal abortions?

There is a room for improvement even with the laws depending on the existing circumstances and prevailing conditions. Recognition and realization of the gap that still existed between safe and unsafe abortions in India led the way towards Abortion Law amendment. The motive for the introduction of the MTP Act, 2020 was to facilitate better implementation of the abortion law.

The step has been initiated to decrease the incidence of unsafe abortions which were on a rise in the country. The notable changes to extend CAC services with the view of providing safe abortions to Indian women are briefed here:

• Increase in gestation age: Until the new guidelines, abortion in India was legally permissible only up to the gestational age of 20 weeks. This age has now been increased up to 24 week. Many women, such as rape victims of young age come to realize of their pregnancies late. And the physical, as well as mental trauma, is already huge which can further be enhanced in provisions where she is not permitted to abort.

In other incidents where fetal anomalies show up and abortion becomes a requisite, they come up as late as 18 weeks of pregnancy. A two-week window was very narrow for legal abortion also owing to limited sources and providers. And if the duration for legal abortion exceeded 20 weeks, women had to appeal to the court adding to their physical and mental trauma.

Extension in the ceiling age of upper limit for legal abortions was a much-needed amendment for the sake of women health.

• Doctor’s opinion: As per the MTP Act, 1971, single registered medical practitioner’s (RMP) opinion was required for termination of pregnancies up to 12 weeks of gestation. However, from 12 to 20 weeks of gestation, opinion from two RMP’s was sought before conducting the procedure.

Two doctors were required to confirm that the ongoing pregnancy can either endanger the woman’s life or the child be born with physical or mental abnormalities. As a result, many women avoided proceeding for legal abortion. This too changed to single doctor’s opinion for pregnancy length up to 20 weeks as per the MTP Act Amendment. Opinion from two doctors is sought from 20 to 24 weeks of pregnancy.

• Extension in the contraceptive-failure clause: Earlier only married women or their partners could avail the abortion services as per legal provision in case of contraceptive failure. Since unmarried women who unintentionally get pregnant were not shielded by the law, they resorted to unsafe abortions. As per the abortion law amendment, the contraceptive-failure clause for termination now includes even unmarried women and/or their partners.
• Increase in the provider base: Owing to a limited number of registered practitioners to provide legal abortions, the MTP Act, 2020 has allowed an increase in the provider base. Now Ayurveda, Unani and Siddha practitioners have also been allowed to terminate the pregnancies by medical method only. Surgical abortion intervention is kept restricted to well-trained and experienced gynaecologists.

Expectations from the MTP Act, 2020:

Increasing the upper limit for termination of pregnancy is expected to empower women with reproductive rights. It is believed that the measures taken as per the MTP Act, 2020 will motivate women to proceed for safe abortions.

Women used to feel anguish when they had no control over their reproductive rights. This momentum has now been shifted and it can be expected that the maximum number of unsafe abortions can be switched to safe ones. The right legal move will give an impetus not only to the physical well-being of women but also improve their mental health.

Abortion is a very sensitive issue and the MTP Act 2020 while being empathetic towards women empowers them with making individual conscious decisions concerning termination of their pregnancies.  Moreover, being non-judgemental and with the backbone of the governing law, women in the future can seek Comprehensive Abortion Care at certified MTP centres.

The welfare of women and entire societies depends largely on the governing laws. The new abortion law can be considered as more progressive towards addressing the safe abortion needs of women.

Reference:

1.      “The incidence of abortion and unintended pregnancy in India, 2015”. The Lancet Global Health. 6(1): e111–e120.

Note: The content on this post is not to be taken as a legal directive or advice.  It is meant for information purposes only.