The Medical Termination of Pregnancy (Amendment) Act, 2021 (25 March 2021)

The Medical Termination of Pregnancy (Amendment) Act, 2021 received the assent of the President of India on 25 March 2021 and was published in the gazette the same day. This article will briefly describe the background and main features of the Act.

Background Information:

MTP Act, 1971

The Medical Termination of Pregnancy Act, 1971 (MTP Act, 1971) was enacted on 10 August 1971 to enable the termination of certain pregnancies by registered medical practitioners. It was intended to provide safe, affordable, accessible abortion services to women who need to terminate pregnancy under certain specified conditions:

When pregnancy involves a risk to the life of the pregnant woman or of grave injury to her physical or mental health
- Pregnancy is alleged to have been caused by rape.
- Where pregnancy occurs as a result of failure of contraceptive device or method used by any married woman or her husband.
When there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Under the MTP Act, 1971 a pregnancy could be terminated:

By a single medical practitioner if the pregnancy did not exceed twelve weeks
By two registered medical practitioners if the pregnancy exceeded twelve weeks but did not exceed twenty weeks.

Crucially, such services were made available only to women who have attained the age of eighteen years and consent to termination.

Wilful contravention or failure to comply with the requirements of the Act was liable to be punished with a fine of up to one thousand rupees.

The primary intended objective was a reduction in the number of illegal abortions occurring in the country.

Motivation for the latest amendment:

The main motivations mentioned in the Bill submitted to the Lok Sabha were:

Advancements in medical technology for safe abortion permit increasing the upper gestational limit for terminating pregnancies- especially for vulnerable women and for pregnancies with substantial foetal anomalies detected late in pregnancy.
There is a need to increase access of women to legal and safe abortion services.
Several writ petitions have been filed before the Supreme Court and various High Courts seeking permission for aborting pregnancies at gestational age beyond twenty weeks on grounds of foetal abnormalities or pregnancies due to sexual violence faced by women.

When introduced, the Bill was presented as a legislation that shifted termination of pregnancy from a ‘needs’ based to a ‘rights’ based approach. That is, instead of women having to justify the need to terminate pregnancy they would be able to seek termination as a matter of right (in alignment with the principle of autonomy over their own bodies and reproduction).

Key Messages:

The MTP Amendment Act, 2021 (hereafter “The Act”) defines “termination of pregnancy” as

“a procedure to terminate a pregnancy by using medical or surgical methods” (new).

The Act revises the gestational (age) limits as under:

If pregnancy does not exceed twenty (20) weeks it may be terminated based on the opinion of a single registered medical practitioner.
If pregnancy exceeds twenty (20) weeks but does not exceed twenty four (24) weeks it may be terminated based on the opinion of two registered medical practitioners.
If termination is necessitated by the diagnosis of “substantial foetal abnormalities” diagnosed by a Medical Board, provisions relating to the length of the pregnancy will not apply (that is, such pregnancies may be terminated regardless of length of pregnancy).

The Act specifies that the Medical Board should consist of

A Gynaecologist
A Paediatrician
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 applicable.

The Act has substituted “married woman or her husband” with “any woman or her partner” in the part of The Act dealing with pregnancy due to contraceptive failure.

The Act has introduced a new section (5A) that protects the privacy of women seeking termination of pregnancy under this Act:

“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.”

Violation of the above provision is punishable with imprisonment up to one year, or fine, or both. The quantum of fine has not been specified.

Comments:

The Act is a step in the right direction as it addresses some of the concerns with termination of pregnancy in India and de-emphasizes marriage as a pre-requisite for sexual activity and pregnancy.

Similarly, the inclusion of a provision for privacy is a welcome move.

The claim that the Act marks a shift from ‘need’ based to ‘right’ based abortion services is unfounded. Under the Act women will have to justify termination of pregnancy and cannot seek abortion as matter of right outside the conditions specified in the Act. A right based legislation would empower women to choose abortion without specifying a reason.

One of the major criticisms pertains to the creation of Medical Boards for termination of pregnancies beyond 24 weeks’ gestation. It has been pointed out that there is a severe shortage of specialists (Gynaecologists, Paediatricians, Radiologists) in several parts of the country, particularly in the North-Eastern states and rural areas. This is anticipated to create difficulties for women in these areas, adding to the mental anguish of having an unwanted pregnancy.

Another criticism pertains to the age limit of 18 years specified in the Act. India has the greatest number of women aged 20-24 who gave birth by age 18 and is projected to have 95 million adolescent girls (10 to 17 years) by 2030 (19% of the global estimates). NFHS4 data indicate that 26.8% of women aged 20-24 years in India were married before the age of 18. In India, momentum from the existing young age structure will be responsible for 33.6% of population growth from 2010 to 2050. The Act fails to acknowledge and address the abortion needs of adolescent girls.

On balance, the Act is a step forward but may be constrained by practical difficulties in its implementation.