Daily Editorial Analysis for 8th April 2021

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Abortion is a woman’s right to decide

For a women Motherhood is the best feeling in the world and to her abortion is the biggest and sad decision. But in some situations or circumstances she has to take this strong decision.  Abortion affects women in both way emotionally as well as physically.

  • Abortion is nothing but ending of a pregnancy by removal or expulsion of an embryo or fetus.
  • Recently, The Rajya Sabha passed the Medical Termination of Pregnancy (Amendment) Bill, 2021 in March 2021.
  • It was passed by the Lok Sabha in 2020.
  • This bill is related to the termination of Pregnancy.
  • The government’s conduct is particularly appalling since it comes after over a decade of procrastination and obstruction where indigent women in difficult circumstances tried to have abortions done and were stonewalled by government officials and prosecutors.
  • This Act marks a new phase of the struggle to assert the absolute right of a woman over her body.

The Medical Termination of Pregnancy Act, 1971 (MTP)

  • The 1971 Act was based on “The Report of the Shantilal H. Shah Committee to Study the Question of Legislation of Abortion” 1967, which set out the limitations of technology which made it hazardous for women to have abortions done after the 20th week.
  • This act is considering that the provisions in the Indian Penal Code regarding termination of pregnancy were enacted over a century ago in keeping with the British law on the subject. This dealt with rape cases where it was to be presumed that the anguish caused would constitute a grave injury to the mental health of the woman.
  • Under this act Abortions were made a crime and the woman concerned and her doctor would invariably land up in jail.
  • Under Section 3, it sets the outer limit of 20 weeks on the termination of the pregnancy and required two doctors to certify that the continuation of the pregnancy would involve a risk to the life of the woman or grave injury to her physical or mental health or that there was a substantial risk that the child born would suffer from such physical or mental abnormalities as to be seriously handicapped. This lay down that any pregnancy occurring as a result of the failure of contraception would likewise be presumed to constitute a grave injury.
  • Section 5 created an exception to the 20-week limit whenever such an abortion was immediately necessary to save the life of the pregnant woman.
  • This limitation disappeared with the phenomenal improvement in technology and processes rendering it possible to carry out abortions safely right up to full term.
  • Thus the excuse of “safety of the woman” was no longer tenable to be used for restricting women’s rights.

The after-effect

  • The central government has been criminally negligent in allowing the law to stand as it has for five decades.
  • It has pushed women seeking abortions underground where terminations are carried out in unhygienic and dangerous places and in horrific situations.
  • About 800,000 illegal and unsafe abortions are performed every year in India, many of them resulting in morbidities and death.

Nikita Mehta Vs the State of Maharashtra Case

  • In Bombay High Court, from 2008 onwards, over 300 petitions were filed in the Supreme Court and the High Courts.
  • Then they routinely allowed abortions way past the 20 week limit. In Murugan Nayakkar Vs Union of India & Ors, the abortion was permitted at 31 weeks, very close to full term.

Challenges in Medical Termination of Pregnancy (Amendment) Act 2021

It fails miserably on the main count while introducing few collateral progressive measures:

  • It fails to recognize the absolute right of a woman over her body in taking decisions regarding abortions and reproductive health and still reserves to the state the right to dictate to the woman that she cannot have an abortion at will.
  • Its limit has been pushed back from 20 to 24 weeks with the same state conditionality as before.
  • 24 weeks is not rational given today’s technology where abortions can be done safely up to full term.

Disadvantages of Medical Board

  • By far the biggest failure of the government lies in enacting section 3(2B) which requires the pregnant woman to approach a medical board in cases of substantial foetal abnormalities and where she has crossed the 24-week limit.
  • These boards impose insurmountable obstacles to the woman seeking late abortions.
    • Breach of Privacy: This law is totally unnecessary and breaches privacy.
    • Indicative of complete non-application of mind: Section 3(2C) provides a single board for a State. Given the millions of abortions taking place in India past the deadline, it is impossible for one board to handle all cases.
    • Assuming multiple boards will be established, the records show that no State has the finances or the human resources to maintain the operation and functioning of these boards.
    • Right to seek termination: It restricted to “such category of women as may be prescribed by rules”. One wonders what categories of women would be permitted termination of pregnancies.

Way Forward

  • The main objection remains; that boards are totally unnecessary and an invasion of privacy, and pregnant women like they used to do, should be left alone to consult their gynecologist in late-term pregnancies and carry out their abortion under the certificate of their own gynecologist that the abortion can be performed safely.
  • This is the trend worldwide and in the courts.
  • The Indian government needs to wake up and educate itself on women’s emancipation worldwide


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