The amendments in the bill of the MTP Act are defective | Analysis – analysis
The approval of the Cabinet of the Union of the Amendments to the Law of Medical Interruption of Pregnancy (MTP) 1971, in January, sets the stage for a small but late step forward. In a country where unsafe abortion is the third leading cause of maternal mortality, at a cost of 13 lives per day, the law and the health system must do much more than the MTP Amendment Bill, 2020.
It is a welcome amendment that the bill Among others proposes to place a single woman and her partner on a par with a married woman and her husband, to ensure abortion due to contraceptive failure. Jurisprudentially, this carries forward the justification of the law against domestic violence that makes no distinction between the rights and protections available to a woman, whether in marriage or in a relationship of residence. This recognition by the women’s sexual agency will encourage access to safe abortion facilities as stigma is cleared.
Significantly, the amendments also propose to increase the upper gestation limit for abortion from 20 to 24 weeks. This occurs in the context of dozens of women who approach the Supreme Court and the higher courts to obtain permission to abort after 20 weeks, upon discovering a congenital fetal abnormality or late detection of pregnancy caused by sexual assault. With advances in medical technology, certain fetal abnormalities are distinguished only after the gestation period of 20 weeks and doctors can carry out a major abortion safely up to 24 weeks, which is a solid argument for improving the limit Superior gestational for abortion.
While the MTP amendment bill has not been placed in the public domain, reports suggest that the increase in the gestational limit exceeding 24 weeks for abortion is expected only for “vulnerable women, including rape survivors, victims of incest and other vulnerable women (such as women with different abilities, minors), etc. ”, and the same would not apply in cases of“ substantial fetal abnormalities ”diagnosed by the Medical Board. Therefore, the draft amendment does not sets an upper limit for abortion caused by the discovery of substantial fetal abnormalities.
This classification is disturbing, since it is based on prejudices rather than science. Lurking under this classification are twin assumptions, both regressive. It reinforces the opinion that certain fetuses (of disabled women, victims of rape or with congenital anomalies) are per se unwanted, undesirable and, therefore, should be dispensed with and, concomitantly, that women do not have the sovereign right over their bodies to ensure an abortion, unless they have socially undesirable fetuses. This law not only fails to update autonomy and reproductive justice for women, but the façade of rights further strengthens patriarchal and regressive notions of progeny that preserve the purity of the caste community, and promotes eugenics and capacity.
Interestingly, the jurisprudence on the reproductive election articulated by the Supreme Court a decade ago, in 2009, in Suchita Srivastava v Chandigarh Admin, has a more progressive impulse. In this case in which a woman suffering from “mental retardation” had conceived as a result of a violation in a state institution, the court confirmed her right to decide to reproduce and raise a child, stating: “There is no doubt that a The right of women to make reproductive decisions is also a dimension of “personal freedom” as understood in article 21 of the Constitution of India.It is important to recognize that reproductive options can be exercised to procreate and refrain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity must be respected. ” The special measures required to allow “vulnerable women” to exercise their reproductive rights would imply that the state assumes the responsibility of defraying medical expenses, providing treatment and specialized medical care, compensation, trained assisted child care, etc. Unfortunately, the law and politics say nothing. in this.
In fact, the 2020 amendments echo the position of the central government before the Supreme Court in September 2019, where in a public interest litigation seeking the decriminalization of abortion, he stated that “the right of a pregnant woman to abort her pregnancy is not an absolute right, and the law must be balanced with the convincing state interest of protecting the health of the mother and the life of the fetus. “
It should be remembered here that in 1971 the MTP Act was introduced to establish an exception to Sections 312 and 313 of the Criminal Code of India, which prohibits abortion by intentionally criminalizing “causing miscarriage,” regardless of the woman’s consent. The 2020 Amendment Bill does not decriminalize abortion and a woman’s sovereign control over her reproductive life remains chained, except as allowed by the MTP.
The 2020 amendments are far from the proclamation made in the government press release that says: “The proposed increase in gestational age will guarantee dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy” . The law continues to restrict a woman’s decision to abort by requiring the support of one or two doctors for an abortion within 20 or 24 weeks, respectively. Even within the 24-week period, a woman can only seek abortion for the reasons established by law and not upon request, as available in Singapore or Canada. It is not inspired by the 2017 Puttaswamy Supreme Court ruling that, while recognizing privacy as a fundamental right, “privacy essentially includes the preservation of personal intimacies, the sanctity of family life, marriage, procreation, home and sexual orientation … Privacy safeguards individual autonomy and recognizes the individual’s ability to control vital aspects of his life. “The 2020 amendments perpetuate the subordination of a woman’s determination of her reproductive freedom to the regime. Medical and legal
Vrinda Grover is a lawyer who practices in the Supreme Court and supports Pratigya’s campaign for gender equality and safe abortion.
The opinions expressed are personal.