In March 2021, the Indian Parliament approved the Medical Termination of Pregnancy (Amendment) Act 2021, a.k.a. MTP Act. It was an update to the existing regulations established by the Medical Termination of Pregnancy Act of 1971. The 1971 Act governs abortion procedures in India. Before the amendment, the Act stated that if it is a case of abortion within 12 weeks of conception, it requires a doctor’s opinion. However, if the time frame was between 12 and 20 weeks, two doctors’ opinions were a must.
The amendment now permits abortions to be carried out within 20 weeks based on one doctor’s recommendation. Similarly, between 20 and 24 weeks, with the advice of two doctors for specific groups of women, such as rape victims. Additionally, the Bill instructs States and Union territories to establish medical boards to determine whether pregnancies with significant foetal abnormalities can undergo termination after 24 weeks.
Addressing marital rape in the context of abortion laws
While the 2021 amendment allows abortion between 20 and 24 weeks for rape victims with two doctors’ advice, it does not cover marital rape. However, for the first time, the Supreme Court recognised the concept of marital rape in September 2022. It ruled that “rape” under the MTP Act includes sexual assault committed by a husband on his wife. As a result, women alleging rape by husbands can obtain abortions beyond 20 weeks, as clarified by the Supreme Court.
How does the amendment in the MTP Act protect unmarried women
Rule 3B of the Medical Termination of Pregnancy Rules, 2003 outlines the eligibility criteria for terminating pregnancies up to 24 weeks. It includes survivors of sexual assault, minors, mentally ill women, and women who experience changes in marital status, such as widowhood or divorce, during pregnancy.
During a hearing for a woman denied abortion by the Delhi High Court due to her unmarried status, the Supreme Court interpreted the rule to include “unmarried or single women.” The Court emphasised that the provision should apply to all women irrespective of their marital circumstances.
Abortions only require the consent of the woman, regardless of her relationship or marital status. If the pregnant individual is a minor, it necessitates parental consent. However, doctors have the option to report parents if they suspect they are coercing the minor to carry a child conceived under dubious circumstances.
The grey areas of the MTP Act
Labelling certain conditions as “substantial foetal abnormalities” and “serious mental or physical abnormalities” shows bias against people with special needs. Indeed, it can be beneficial for a financially unstable woman or one who is not physically fit to care for children with special needs. These children often require extra care and financial support, which may not be possible for everyone. However, categorising these conditions separately for abortion suggests that some lives are considered less valuable. The Act assumes that a child likely to have mental or physical abnormalities is inherently socially undesirable. Hence, it aims to justify their termination.
This ableism is evident in the prescribed 24-week limit for abortions. While this limit is assumed to be grounded in legislative and scientific developments, it is entirely lifted in cases involving substantial foetal abnormalities. Additionally, the Bill primarily focuses on cisgender women. It neglects persons with other gender identities, making it overwhelmingly cis-heteronormative.
The patriarchal bias of MTP and abortions
The life-threatening implications for a woman in deciding to continue a pregnancy are often overlooked. The MTP Bill perpetuates this patriarchal ignorance. By allowing abortion only in cases with extraordinary circumstances, the Bill reinforces motherhood as the norm and termination of pregnancy as the exception. Consequently, the Act is for women “who need to abort” rather than “who want to abort.” It further highlights this discrepancy.
Globally, various models of abortion regulation exist, including abortion on request. However, under the MTP Amendment Bill, abortion will not be permitted at the request of the pregnant woman. However, it will be conditional upon authorisation by a doctor. It contradicts the Supreme Court’s stance on reproductive autonomy and bodily integrity.
By failing to recognise the right to abortion based on a woman’s choice, the Act goes against the right to make reproductive decisions. Furthermore, while the Act requires a woman’s consent for abortion in certain situations, her consent becomes irrelevant and ineffective without approval from a medical practitioner.
Throughout history, men have largely been content with women bearing the burden of procreative responsibility. However, now that most women in civilised societies have access to abortion, men suddenly feel the need to voice their opinions, judge women, and assert control over what happens to a woman’s body. This perspective fails to acknowledge the harsh reality that abortion is far from an easy choice. It’s just another problematic way in which women take responsibility for an unwanted pregnancy. Unlike most men, women don’t have the option to simply walk away, even if they choose abortion.
The final thoughts
A considerable portion of women in India resort to abortion as their primary means of birth control. They opt for abortions due to societal stigma surrounding illegitimate pregnancies, financial limitations preventing them from supporting children, or because they are at a stage in their professional or personal lives where they are unable to raise a child.
While the Medical Termination of Pregnancy (Amendment) Act 2021 commendably extends access to safe and legal abortion services, its passage is concerning. It unfortunately perpetuates the control over women’s reproductive and sexual rights under the pretext of ‘progress’. Numerous questions remain unanswered, including the reasons behind the selective abortion of disabled foetuses. Even more troubling is the apparent secondary consideration of women’s well-being within the Act.
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