The evolution of the Medical Termination of Pregnancy Act, 1971 and the debates around the issue....

As per the British archaic laws, abortion under any circumstances, except danger to a pregnant woman’s life, was illegal in India. Section 312 of the Indian Penal Code (IPC) provides that “Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”. The IPC 1862 and the code of criminal procedure 1898, with their origins in the British offences against the person Act 1861, made abortion a criminal offence for both the woman and the abortionist, except to save the life of the woman. The liberalization of abortion laws in India began only in 1964 in the context of high maternal mortality due to unsafe abortion.

Doctors frequently came across gravely ill or dying women who had taken recourse to unsafe abortions carried out by unskilled practitioners. They realized that majority of women seeking abortions were married and under no socio-cultural pressure to conceal their pregnancies and that decriminalising abortion would encourage women to seek abortion services in legal and safe settings.

GOI appointed Shah committee under the chairmanship of Mr. Shantilal Shah in 1964 to carry out a comprehensive review of socio-cultural, legal and medical aspects of abortion. The committee in 1966 recommended legalising abortion to prevent wastage of women's health and lives on both compassionate and medical grounds. The term "Medical Termination of Pregnancy" (MTP) was used to reduce opposition from socio-religious groups averse to liberalization of abortion law. The Medical Termination of Pregnancy Act passed by parliament in 1971 legalized abortion by conferring full protection to a registered allopathic medical practitioner against any legal or criminal proceedings for any injury caused to a woman seeking abortion, provided that the abortion was done in good faith under the terms of the Act. The Act allowed an unwanted pregnancy to be terminated up to 20 weeks of pregnancy and required a second doctor’s approval if the pregnancy was beyond 12 weeks at any government hospital or a certified private facility. In the event of abortion to save the life of a woman, the law did make certain exceptions.

With the enactment of the MTP (Amendment) Act 2002 and subsequent amendment of Rules and Regulations in 2003, decentralized regulation of abortion facilities from the State level to District Committees was done. It also provided imprisonment of 2-7 years for individual providers and owners of facilities not approved by or maintained by the Government. To reduce administrative delays, the new Rules mandated the District Committee to inspect a facility within two months of receiving an application for registration and process the approval within the next two months if no deficiencies are found, or within two months after rectification of any noted deficiency. However, the amended MTP Rules did not specify measures to be taken if approval procedures are still not completed in the stipulated time frame.

Every facility now needs to have personnel trained to recognize complications and provide or be able to refer women to facilities capable of emergency care. The amended MTP Rules also recognize medical abortion methods and allow a registered medical practitioner to provide mifepristone + misoprostol in a clinic setting to terminate a pregnancy up to seven weeks, provided that the doctor has either on-site capability or access to a facility capable of performing surgical abortion in the event of a failed or incomplete medical abortion. However, the Drug Controller of India has approved mifepristone provision only by a gynaecologist, thus effectively restricting access to women in urban areas.

With changing society and the advancements in medical science, a draft MTP (Amendment) Bill, 2014 was prepared which purports to amend Section 3 of The MTP Act, 1971 to provide that ‘the length of pregnancy shall not apply’ in a decision to abort a foetus diagnosed with ‘substantial foetal abnormalities as may be prescribed’. It also seeks to increase the legal limit for abortion from 20 weeks to 24 weeks. (since legal experts have argued that conclusive determination of foetal abnormality is possible in most cases after the 20th week of gestational age.) Along with that it seeks to allow a woman to take an independent decision in consultation with a registered health-care provider.

The last point need to be taken into consideration with regard to a number of cases where the case of the victim gets entangled in the files and numerous lengthy procedures and formalities and ultimately, she is devoid of proper justice.

Done with the evolution of laws, the various central governments have woken up to amend the law as per the changing times, only when the law is in question over a highly published court case. Still, there are a lot of issues, on which the state or the courts are in dilemma in India and in many parts of the world. Let’s look at those: -

1. The risk to the mother: Medical science considers the abortions of a 26-week-old foetus as a medical risk to the mother. But then, pregnancy itself, even with a normal foetus, can pose medical risks for the mother. Along with that, a normal delivery is also quite painful, and the Cesarean one is also not without its aftereffects and excruciating pain.

So, the risk to the mother exists in any case, and the risk of a late abortion is only one of the risks in the mother’s palette. It becomes imperative for us to let the women decide, which of the risks she would like to take? Considering the circumstances in which, there is a danger to woman’s life, the abortion should be allowed immediately since the continuation of the pregnancy in that case, endangers the life of both the women as well as the foetus. The woman must be saved in that case.

2. The issue of pain: Yes, abortion after 26 weeks is painful to the foetus. But the mother also suffers a lot of pain during this entire process. While she goes under the knife for abortion, she also suffers a lot of physical and emotional pain. The emotional pain, especially, takes a lot of time to heal.

So, in a way, we are biased towards the mother since we are hellbent on comparing – a foetus’s pain during abortion to a mother’s pain during childbirth. Are we saying one is acceptable, but the other is not? So, the pain aspect is applicable to both parties, and is best left out of the picture.

The real questions to ask:

1. Who is more important, the mother or the foetus? The crux is, can we force a mother to

(i) carry an unwanted foetus to term, with possible medical complications to the mother during delivery or childbirth,

(ii) endure postpartum blues, and

(iii) post-birth, force her to care for an infant that she does not want,

all this just because we believe the foetus is a living creature and is therefore considered a citizen?

Let’s assume the foetus should be considered a fine and upstanding citizen. What about the mother then, an adult productive member of society? Whose rights are greater?

A mother makes an enormous investment in a pregnancy. She can suffer complications that last life-long (like osteoporosis), or during the pregnancy (like diabetes and hypertension). So, there is a real physical cost to the mother.

2. If the foetus is an independent entity and an individual, can this individual live outside the mother? No, of course not. Foetuses born prematurely, i.e. before 37 weeks, may suffer complications even if treated in pre-natal intensive care. Absent pre-natal care, they cannot survive as their organs aren’t developed yet.

If we continue to take the position that the foetus is an independent legal entity (even though it cannot survive independent of its mother), then extending that argument, by requiring a mother to complete her pregnancy for a foetus she doesn’t want, we are forcing her to provide prenatal care (using her own body) which is not of her own choice, and for which she is obviously not being compensated either. The question is, is that a fair and just law?

3. The issue of individual rights versus common good:

The other issue here is that the State is also, in essence, controlling a part of the woman’s body itself. It is claiming that it has overarching authority to decide on a part of the woman’s body. This is the scariest part. Where do we draw the line between an individual’s rights and the State’s rights?

If the woman delivers the baby and immediately gives it up to the State for adoption, what she has done, in a way, is to rent her womb to the State.

If the State can force a woman to use her uterus to carry a baby she does not want, where can this slippery slope lead to?

The crux of my argument is that women are rational creatures. No woman wants to abandon a foetus unless there is some compelling reason for her to do so.

Given this logic, if a woman wants to abort her foetus, the State can reason with her, offer her financial incentives for keeping the baby, offer free medical support if there are complications and offer to help with adoption of the baby. The State can try to change the woman’s mind by addressing whatever issues the woman may have. If the foetus is viable, then the State can bear the expenses and medical care for delivering the baby and treatment for the premature baby.

But the State has no right to force a woman to put all her energy and her life-blood into bearing a baby that she is strongly against carrying to term. A woman should have the right to make the final decision on very part of her own body.

Summing up my words, let’s hope that the upcoming amendments in the MTP Act, 1971 will also consider these arguments, so as to move ahead in a positive direction with the progress of time. Hoping the law will not be termed an archaic and draconian one, in times to come by the future generations. Let's give a serious thought! Lets move with the times!