Updated: Aug 26, 2020
Examining the intersection of law and human rights in the MTP (Amendment) Bill 2020
Abortion in the simplest of terms is a medical procedure, that terminates a pregnancy through the expulsion or removal of an embryo or foetus. Yet, it is a process that is dictated by the intersection of law, morality, ethics and politics- a conflict zone which endangers the lives of thousands of women every year. In most countries the stigma surrounding abortion only strengthens laws which criminalise the act, forcing women to resort to unlicensed practitioners and other unsafe routes.
Abortion and International Human Rights Law
The advances in the field of science and medicine and women’s movements across the globe have enabled many more women to access the procedure. But this was not always the case. Abortion was restricted legally in almost every country by the end of the 19th century as the procedure was quite dangerous if not performed by an experienced practitioner. Abortion was also considered a sin by many sections of the society, spurred on by an overarching religious and patriarchal structure.
The 2018 Abortion Worldwide report stated that from 2010-2014, an estimated 55.9 million abortions occurred each year- 49.3 million in developing regions and 6.6 million in developed regions. That is 35 abortions each year per 1000 women aged 15-44, which suggests that on an average, a woman would have one abortion in her lifetime! When abortions are conducted by a skilled health care provider, the chances of complications or death are minuscule. But a staggering 25 million women resort to unsafe abortions each year risking their health and lives. This alarming number is an indicator that countries with restrictive abortion policies are not reducing abortions, they are increasing unsafe abortions at least four times more than in countries with liberal policies.
It was with an aim to expand awareness about safe abortion services that the 1994 International Conference on Population and Development’s (ICPD) Programme of Action was released. It became the first international consensus document wherein states recognised reproductive rights as human rights. It also highlighted the effect that reduced numbers of unsafe abortions have on maternal mortality rates and in the severity of maternal morbidity. Further, it advised that abortion should not be promoted as a method of family planning and that every woman who has had recourse to abortion should be treated humanely and given support and counselling.
But the landmark incident which uplifted the rights of women and their bodily autonomy was the United Nations General Comment on Article 6, Right to life of the International Covenant on Civil and Political Rights (ICCPR). It reaffirmed the fundamental principle that human rights apply only after birth. It clarified that criminalisation of abortion and of medical service providers who conduct abortions could be considered a violation of women or girls right to life- it is the fundamental reason they have to resort to unsafe abortion. Thus, the position of abortion in international human rights law is crystal clear; it is the right of each and every woman to have access to safe and legal methods of abortion.
India’s Abortion Laws
In 2009, the Supreme court in its Suchita Srivastava[i] judgement stated that ‘There is no doubt that a woman’s right to make a reproductive choice is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India.’ An intrinsic part of a woman’s reproductive freedom is the right to choose whether or not to bear a child and this decision can be influenced by her health, her economic prospects and many other factors. But in India’s case, more than often this decision has been wrested from her by the patriarchal society. Yet, almost 50 years since India decriminalised abortion partially in 1971, we are still a long way from our goals.
The Medical Termination of Pregnancy Act, 1971 (MTP) was a very liberal act when it was passed, with very few countries having similar laws at the time. Until the MTP act, abortion was a criminal offence in India. This act carved an exception in Sections 312 and 313 of the Indian Penal Code (IPC), making abortion performed by a registered medical practitioner till the 20th week of gestation legal. But beyond the 12th week, abortions were to be allowed only for women whose pregnancy resulted from rape, was due to failure of contraceptives used in a marriage or whose physical and mental health was at risk. But all abortions are to take place only after a doctor opines it is necessary and for pregnancies beyond 12 weeks, the opinions of two doctors are required. Time is of the essence in cases of abortions, but our legal provisions have made the process lengthy and cumbersome; giving only an illusion of reproductive autonomy to women.
In March 2020, the Lok Sabha passed the MTP(Amendment) Bill, which was the result of an increasing number of petitions received by the courts for allowing abortions at later stages of pregnancy. Extending the period of legal abortion from 20 to 24 weeks, the bill aims to aid vulnerable women including survivors of rape, incest, differently-abled women and minors. In the case of ‘substantial’ foetal abnormalities diagnosed by a medical board, there is no upper limit to when a woman can resort to abortion. Yet again, the final decision of the procedure is in the hands of a medical board, which makes the decision a long drawn and at times skewed one. The amendment yet again fails to include the right of all women to choose to have an abortion and rather propagates that only women who have ‘socially undesirable’ pregnancies should.
The amendment also replaces parts of Section 3(2) of MTP act which states that pregnancy due to the failure of any device or method used by “any married woman or her husband” to limit children can cause grave injury to the woman and thus is a valid ground for abortion. The present bill modifies this as “any woman or partner” which is a positive step. But this neglects the fact that the term ‘partnership’ is undefined and can exclude from its purview sex workers and transgender or gender-diverse people. In the United States, Planned Parenthood which provides abortion services is also the nation’s largest provider of transgender healthcare and banning abortions will therefore directly affect their healthcare too. Women are not the only people who need abortions, trans men and others across the gender spectrum need to be included in these provisions.
While there are many improvements from past versions of this bill, there are several lacunae as we have briefly discussed. The bill doesn’t decriminalise abortion completely and even in the 24-week period, the woman can resort to abortion only under certain conditions and not on request. We are yet to create equal access to legal abortion services in rural areas or aid women who are struggling financially. Only after we ensure that unsafe abortions do not take place and that all women can resort to abortion if need be, can we say that this basic human right of women is protected in India?
Abortion laws around the world have changed, for the good and for the worse. Since 2000 at least 52 countries have expanded the legal grounds in which a woman can resort to abortion in some cases even moving away from complete bans. Yet, countries like the US which had progressive laws are now slowly regressing to a more conservative stance. While laws regarding abortion become more accommodative, it is equally important to ensure that safe services ensured can also be accessed by all and that women and girls are educated about their rights. Countries like Canada, Australia and South Korea where laws regulating abortion are unconstitutional should serve as models for India to improve upon our existing laws. While the MTP (Amendment) Bill is a step in the right direction for India, it still has to improve upon and expand the right to reproductive autonomy for all who should require it. Each country has its own set of unique dynamics that are to be addressed while creating and implementing abortion laws, but at the centre of these laws should always be the woman.
[i] Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1.
Title Image Source: Wiktor Szymanowicz—Barcroft Media via Getty Images
Soumya S is a second-year undergraduate law student studying in Gujarat National Law University, India, pursuing B.A. LL.B. (Hons.). She is interested in International law and Environmental law with a focus on making these laws more accessible to people.