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New pregnancy law: Should women justify abortion? Whither reproductive rights?

By Simi Mehta, Nishi Verma*
Abortion is a highly emotional issue and one that excites deeply held opinions. However, equitable access to safe abortion services is first and foremost a human right. On March 17, 2021, India’s Parliament passed the Medical Termination of Pregnancy (MTP) Bill, 2021 to amend the Medical Termination of Pregnancy Act, 1971. 
This amendment paves the way to expand access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds. The Bill seeks to strengthen provisions for protecting the dignity and privacy of women who seek the refuge of law when confronted with such a life altering decision. This includes:
  • Increased gestation period from 20 weeks to 24 weeks “for special categories of women” such as survivors of rape or other vulnerable women.
  • Opinion of one registered medical practitioner would be required for termination of pregnancy of up to 20 weeks and opinion of two registered medical practitioners in cases of 24 weeks.
  • 24 weeks gestation will not apply for termination of pregnancy in cases of substantial foetal abnormalities.
  • The name and other particulars of a woman whose pregnancy has been terminated should not be revealed, except authorised by any law.

How would MTP (Amendment) Bill, 2021 impact women?

The Covid-19 induced lockdowns around the world may have brought unintended consequences, especially on the ever-present human rights crisis around gender inequity and inequality. The unmet need for family planning services is already high in India and the disruptions like COVID19 would add to its far-reaching consequences. Projections suggest that 26 million couples in India will have no access to contraceptives. 
During the Covid-19 lockdown, due to inability to access contraceptives, the Indian women may have an additional 2.4 million unintended pregnancies. Further, in the near term due to Covid-19, close to 2 million Indian women will be unable to access abortion services. 
According to a report by the ‘Pratigya Campaign for Gender Equality & Safe Abortion’ from 2016 to 2019, the Supreme Court and High Courts of India have seen a total of 194 writ petitions from women who have sought to have their pregnancies medically terminated. While every case emanates from traumatic circumstances, such as rape, risk to life, risk to mental health, or foetal abnormalities, the results are varied and unpredictable.
In light of the above worrying trends, the MTP (Amendment) Bill 2021show signs of a more progressive law that would have long term implications and bodily autonomy to women.
While there are pertinent aspects of the MTP Act, 2021 as a step towards safety and well-being of the women and will benefit several women, it must be underscored that availing MTP within a specified age of pregnancy is the absolute right of the woman. Also, no pregnancy shall be terminated except with the consent of the pregnant woman.
The Bill replaces of the word “husband” by “partner”, and hence acknowledges consensual relationships outside of matrimony. The confidentiality of the woman undergoing abortion cannot be revealed by a registered medical practitioner to people unless authorised by law. Violations of this includes punishments with imprisonment up to a year, a fine, or both.
Some of the limitations of the MTP Amendment Bill includes lack of a rights-based approach by making it mandatory for women to justify abortion, riddled with accessibility issues, reproductive rights. The Bill also fails to address most of the problems with the MTP Act. 
First, it does not allow abortion on request at any point after the pregnancy. It is allowed only under particular situations – such as rape, foetal abnormalities, and risk to physical or mental health of the woman, and not because of her voluntary choice of not having the baby. 
Second, it is not clear how the MTP Bill would prevent sex-selection-based abortion. 
Third, while privacy is ensured for women over 18 years of age, those under 18 are not provided the confidentiality clause and their guardians must be informed. This may induce youngsters to resort to unsafe methods of abortion. 
Fourth, it enhances the gestational limit for legal abortion from 20 to 24 weeks only for specific categories of women such as survivors of rape, victims of incest, and minors. This may expand third-party authorization for abortion care due to above provisions. 
Lastly, the Bill is silent about sensitization of the health care community and the general public about safe sex and abortion rights, which could go a long way in eliminating the stigma associated with MTP is eliminated.
Women and girls continue to experience significant barriers to full enjoyment of their reproductive rights
It is also crucial that the be accompanied by appropriate rules for the Medical Boards that guard against unnecessary delays, which only increase the risks associated with a late abortion. The amendment in the Bill continues the legacy of hetero-patriarchal population control, which does not give women control over their own bodies. While it is commendable that the Bill proposed to expand the gestation from 20 weeks to 24 weeks this again can be limiting. 
There are multiple cases of delay in seeking access to pregnancy termination due to several reasons including but not limited to sexual assault on a minor, delay in recognizing the pregnancy, intimate partner violence, and difficult family circumstances. Due to exclusion of abortion by choice in the current law, these women end up being exposed to unsafe abortions, putting their health and life at risk.
However considering the huge leap on abortion reform, India is standing amongst nations with a highly progressive law which allows legal abortions on a broad range of therapeutic, humanitarian and social grounds. It is a milestone especially those who are vulnerable and victims of rape. The policymakers must consider the current deficiencies and take steps to improve the Bill further, so that it becomes a milestone in comprehensive abortion rights around the world.

Women’s rights over their own bodies

Although India was among the first countries in the world to develop legal and policy frameworks guaranteeing access to abortion and contraception, women and girls continue to experience significant barriers to full enjoyment of their reproductive rights, including poor quality of health services and denials of women’s and girls’ decision-making authority. 
Historically, reproductive health-related laws and policies in India have failed to take a women’s rights based approach by undermining women’s reproductive autonomy through discriminatory provisions such as spousal consent requirements for access to reproductive health services. 
Although India’s National Population Policy guarantees women voluntary access to the full range of contraceptive methods, in practice state governments continue to introduce schemes promoting female sterilization, including through targets, leading to coercion, risky substandard sterilization procedures, and denial of access to non-permanent methods. 
Millions women face structural, institutional, and cultural barriers to using accredited abortion services -- things like stigma, not knowing the law, expense, fears about confidentiality, and lack of access to healthcare institutions. Such barriers disproportionately affect poorer women, who often live in remote, rural areas.
Women's rights and economic development are highly correlated. Today, the discrepancy between the legal rights of women is much larger in developing countries compared with developed countries. Even western democracies that otherwise seem to be leaders on an international human rights stage have historically struggled with the recognition of women’s rights to make autonomous decisions regarding the ‘spacing and number of their children.
In the United States, the 1973 Supreme Court case Roe v. Wade established the legal right to abortion. In recent years, policies affecting women’s reproductive rights in the United States have substantially changed at both the federal and state levels. 
There is a prevailing opinion in the US Supreme Court that wants doctors performing abortions to get admitting privileges from a nearby hospital, or even imposing a near-total ban on abortion, no exceptions for rape or incest -- only to save the life of the mother (as in the case of the state of Arkansas). 
On the other hand, the 2010 Patient Protection and Affordable Care Act (ACA) or the Obamacare has expanded women’s access to contraception in several ways, including by requiring health care insurers to cover contraceptive counselling and services and all FDA-approved contraceptive methods without any out-of-pocket costs to patients.
While most (although not all) women in the western world may consider basic access to effective contraception is given, this is yet to be the case in many countries of the developing world, India being an important case in point. 
Similarly, the passage of a law legalizing abortion is necessary, but not a sufficient condition for ensuring access to safe and effective abortion services. It is equally important to ensure that women are apprised of their legal rights, service provision of women and health-related barriers to accessing services are addressed adequately. The best way to stop abortion is to prevent unwanted pregnancies.
Worldwide, abortion is acknowledged as an important aspect of reproductive health of women. At present, 26 countries including Egypt, Angola, Thailand, the Philippines, Madagascar and Iraq do not permit abortion and 39 countries including Brazil, Mexico, Sudan, Indonesia and Sri Lanka permit abortion when the woman’s life is at risk. 
Only some countries like China, Russia, Canada, Australia, and South Africa permit abortion on request mostly up to 12 weeks. India will now stand amongst nations with a highly progressive law which allows legal abortions on a broad range of therapeutic, humanitarian and social grounds. 
This Bill is a milestone which will further empower women, especially those who are vulnerable and victims of rape. India, certainly elevates its standard at a higher pedestal through this Bill. It is hoped that the country makes proactive laws and implements them vigorously in so far as other areas of rights of women and girls are concerned.
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*Simi Mehta is CEO and Editorial Director at IMPRI Impact and Policy Research Institute, New Delhi and Nishi Verma is Research Programs Assistant at IMPRI

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