The Medical Termination of Pregnancy (Amendment) Act, 2021 on Thursday received Presidential assent, ushering into law key changes in India’s abortion law which would allow abortions by unmarried women for contraceptive failure and abortions beyond the earlier gestational limit of 20 weeks.
Before going into the changes, it is pertinent to note that abortions in India are permissible only in the following contingencies:
(i) either the continuance of the pregnancy would involve a risk to the pregnant woman’s life or cause her grave injury to her physical or mental health;
(ii) the foetus, if born, would suffer from serious physical or mental abnormality.
Statutory presumptions are in place to expand the scope of when “grave injury” is caused, mentally or physically, to the pregnant woman. This was the position in the earlier version of the law as well.
Highlights of the new law
Section 3 of the Medical Termination of Pregnancy (MTP) Act, which deals with “When pregnancies may be terminated by registered medical practitioners” has been amended to include the following changes.
1. Pregnancies upto 20 weeks can be terminated with the opinion of that there is a risk to the woman or the foetus (as described in (i) and (ii) above). Earlier the gestational limit for allowing abortions with the opinion of one practitioner was 12 weeks.
2. Pregnancies between 20-24 weeks can be terminated on the opinion of that there is a risk to the woman or the foetus (as described in (i) and (ii) above) for such category of women as may be prescribed under the Act. Earlier pregnancies beyond 20 weeks could not be terminated under the Act, leaving women with such pregnancies to approach courts with writ petitions if they needed to abort.
3. These gestational limits (length of the pregnancy) would not apply where the termination of pregnancy is necessary after a Medical Board diagnoses any substantial foetal abnormalities. The Medical Board is to be constituted by the State or the Union Territory and should comprise of a gynecologist, a pediatrician, a radiologist or sonologist and “such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case may be.”
Under the earlier law, contraceptive failure in the case of a woman and her husband was viewed as ensuing in grave injury to the mental health of the pregnant woman, thereby permitting abortions in such a scenario for married women. The amendment, however has introduced a change on this front.
An explanation to the amended Section 3 states that any the failure of contraceptives used by a woman and her partner and the ensuing “anguish caused by such pregnancy” may be presumed to constitute “grave injury to the mental health of the pregnant woman.” Therefore, an unmarried woman can also now terminate pregnancies within the gestational limits under the Act.
The Explanation in focus reads,
“For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.”
The second explanation retains the position already under the earlier law that in cases where a woman alleges that the pregnancy has been caused by rape, “the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.”
The norms of registered medical practitioners whose opinion is required before the termination of pregnancies would be as prescribed in Rules prescribed under the Act.
An addition has been made to Section 5 of the MTP Act in the interest of protecting the privacy of women whose pregnancies are terminated. The newly added Section 5A states,
“(1) No registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force.
(2) Whoever contravenes the provisions of sub-section (1) shall be punishable with imprisonment which may extend to one year, or with fine, or with both.”