Critiquing the recently passed Medical Termination of Pregnancy (Amendment) Act, 2021, MEENAZ KAKALIA draws on trends in previous judicial decisions and her own personal experience as an advocate who has filed several petitions on behalf of women seeking termination of their pregnancies beyond the prescribed period. She explains why medical boards that have now been made a permanent feature of the Act, are problematic, and recommends that abortions should be made a right for women, solely determined by expectant mothers on the basis of informed consent.
THE Medical Termination of Pregnancy (Amendment) Act, 2021 received Presidential Assent on 25th March 2021. The Act amends the original enactment of 1971 to increase the number of weeks within which a woman can terminate her pregnancy, and provides for certain circumstances in which a pregnancy can be terminated at any stage.
While the amendment has increased access to abortions to some extent, it fails to correct one fundamentally flawed aspect of the Medical Termination of Pregnancy Act, 1971 (MTP Act): that a woman does not have the right to terminate a pregnancy, but may be allowed to do so only in certain specified circumstances, and only on the satisfaction of a medical professional (and in some cases, a medical board) that these circumstances are met.
In other words, abortion continues to be a privilege authorised by the State in certain cases.
Apart from this, the amendment also introduces the onerous requirement of obtaining the opinion of a prescribed medical board in certain cases.
It is not yet clear whether these medical boards are to be constituted by the state Government in every district or whether only one medical board is to be constituted for the entire state.
This raises additional concerns with regard to access to these boards, particularly to women from rural areas.
The MTP Act provides for certain circumstances in which a woman may terminate her pregnancy. It was meant to provide certain exceptions to the provision contained in the Indian Penal Code, 1872 (IPC) which makes “causing a miscarriage” a punishable offence.
Under another provision of the IPC, any act done with the intention of preventing the child from being born alive or causing it to die after birth is a criminal offence for which both the woman seeking the abortion and the medical practitioner can be punished.
It was observed that as a result of these stringent provisions of the law, the health and lives of many women seeking abortions were being compromised.
A need was therefore felt to permit abortions under certain circumstances. The MTP Act thus sought to allow the termination of a pregnancy only when: (i) the pregnancy could harm the mental and physical health of the woman; or (ii) there was a substantial risk that the foetus could be born with serious physical or mental abnormalities.
A woman, therefore, did not have a right to terminate a pregnancy, but was only allowed to do so if either of these conditions was met.
Notably, the move to consider legalising abortions coincided with the campaign to curtail the population of the country through coercive practices, and mass sterilisation programmes of people from marginalised backgrounds, often with eugenic aims.
Interestingly, the Committee that was constituted by the Ministry of Health in 1964 to study the question of legalisation of abortions recommendedpermitting it on eugenic grounds.
That this consideration weighed heavily with the Committee is evident from a supplementary note by one of its members, Dr. H.N. Shivapuri, which said:
“Before any one is allowed to marry, the parties should undergo health examination. All those who are not fit to become healthy parents of healthy children, should be sterilized before marriage. The question of ‘Fundamental Rights’ should not be allowed to stand in the way, as the right of the Nation to live prosper is much greater than the right of the individual to bring down standards of life and health.”
Fortunately, this Orwellian recommendation did not make it to the law that was subsequently passed, but it gives one an idea of the circumstances in which the MTP Act was passed and the motive for its enactment.
Seen in this wider context of the campaign to control population growth, it is clear that the objective of enacting the MTP Act was far from any consideration of a woman’s right to make reproductive choices. (Interestingly, the Supreme Court, in a subsequent judgment in the case of Suchita Srivastava v. Chandigarh Administration ((2009) 9 SCC 1), while reflecting on the eugenic theory, held that such measures are anti-democratic and violative of the guarantee of equal protection before the law as laid down in Article 14 of Constitution).
The amendment does nothing to change this; in fact, it further reinforces the eugenic consideration by increasing the gestational age limit for terminating pregnancies diagnosed with substantial foetal abnormalities and not for those caused by rape, incest or failure of contraception.
The judiciary, abortion and medical boards
Much has changed since the 1970s with respect to the discourse around reproductive rights, personal liberty and autonomy.
In 2017, a nine-judge Constitutional bench of the Supreme Court, in the landmark Puttaswamy judgment on the right to privacy, held that the right to have an abortion is a facet of the right to privacy guaranteed under Article 21. This would entail the right to control one’s health and body, including sexual and reproductive freedom.
Earlier, in 2009, in the Suchita Srivastava judgment referred to earlier, the Supreme Court had held that a woman’s right to make reproductive choices is a dimension of personal liberty under Article 21, and reproductive choices can be exercised to procreate as well as to abstain from procreating.
However, the MTP Act is at odds with this jurisprudence as it permits abortions in very limited circumstances. The recent amendment was a lost opportunity to address this tension between these judicial pronouncements and the MTP Act.
In fact, the amendment further curtails decisional autonomy by subjecting it to the opinion of medical boards in certain circumstances.
These medical boards were not a feature of the original MTP, and appears to have been introduced as a result of several Supreme Court and High Court orders where such boards were directed to be constituted.
Since 2017, there has been a deluge of petitions filed before the Supreme Court and various High Courts by women seeking to terminate pregnancies that had passed the 20 week ceiling stipulated by the MTP Act.
Since the courts lacked medical expertise and were ill-equipped to arrive at a decision on their own, they adopted the practice of appointing medical boards of government-run medical institutions to assist them in arriving at a decision.
The composition of these boards was often left up to the discretion of the government medical institution. However, on some occasions, the courts would specify the kind of doctors that should be included on these boards.
As an increasing number of cases began to be filed before various High Courts, it became the norm for such medical boards to be appointed in each case, and for the High Courts to then base their decision on the opinion of these medical boards.
The medical boards, ideally, ought to have been called upon by the courts to determine whether the pre-conditions set out in the MTP Act for termination of pregnancy were satisfied.
However, having no clear mandate, these medical boards would often venture into issues such as viability of the foetus, possibility of corrective surgery, and even moral opinions about the request for an abortion, as has been detailed in an analysis report by the Pratigya Campaign for Gender Equality and Safe Abortion.
Having filed several petitions before the Bombay High Court on behalf of women seeking abortions of pregnancies post the 20-week ceiling, I have personally witnessed the arbitrary and problematic approach of such medical boards.
One would frequently find social arguments against abortions infused with the authority of science. These opinions would then be reflected in the court orders. One such medical opinion of a Bombay High Court-appointed medical board in a case in which I appeared read as follows-
“Inconvenience of looking after one’s own challenged child as an indication for termination beyond viability is akin to reproductive materialism. … Importantly only sympathy for the mother cannot be basis of the opinion.”
The medical boards constituted by the courts would often include doctors that did not have experience or training in gynaecology and obstetrics, but doctors from fields as varied as cardiology and paediatrics whose training and experience would arguably not lend itself to favour terminating a pregnancy.
The amendment to the MTP Act has made medical boards a permanent feature of the MTP Act. Thus, instead of granting more decisional autonomy to women, this ad-hoc mechanism adopted by the judiciary to weigh in on women’s request to terminate their pregnancy, is now a permanent feature of the MTP Act.
It would be hard to imagine the request of someone who has been recommended heart surgery being subject to the opinion of a medical board and eventually being turned down for such a surgery because the medical board opines that it is ‘too risky’, and there are other measure that can possibly be taken. An individual is allowed to take such a decision on their own based on fully informed consent.
In the same way, the decision to terminate a pregnancy, notwithstanding the risk that it may involve, must be between a woman and her gynaecologist based on fully informed consent, and cannot be based on the subjective satisfaction of a medical board.
As long as the woman’s decision is based on fully informed consent, a woman must be allowed to determine for herself what risk she is willing to undertake and ought not to have a board of doctors determine that for her.
Currently, decisions dependent on judge’s personal beliefs
Since, as per the amendment, the opinion of a government-constituted medical board is required in certain cases, there is the possibility of such cases landing up in court.
Apart from the fact that judges lack the expertise to decide such cases, as the experience of women who have filed petitions seeking abortions has shown, judges’ personal prejudices about abortions weigh heavily in their approach to such cases.
Comments that judges make in such cases often channel social conceptions of women’s marital and maternal obligations.
In no other kind of litigation does the outcome of the case vary so greatly depending on the preconceptions of the judge hearing the case, as has been documented in the Pratigya report referred to earlier.
In one case, a now-retired Supreme Court judge had lamented to the advocate of the woman seeking an abortion: “You should be filing the vakalatnama on behalf of the unborn child and not the mother – ask her to listen to this child’s heartbeat.” In this hearing, which lasted for about 5 minutes, where there was no discussion about the law or precedent, the fate of a 21-year-old girl in an abusive marriage was sealed.
In the Bombay High Court, in the case of a minor rape survivor who was 24 weeks pregnant in which I personally argued, one judge inquired – “Are you sure she’s not married to the accused? – even if she’s a minor it won’t be statutory rape if she was married to the boy since the IPC doesn’t recognise marital rape”.
The judge was suggesting that if the precondition stipulated under the MTP Act, that of a pregnancy caused out of rape, was not met, the Court may not be able to permit the abortion.
The remarks from judges in such cases have ranged from theological musings about when life begins, to suggestions that the woman might regret the abortion later and that she should reconsider.
Thus, be it the medical boards or the court, one finds paternalisticcondescension masked as concern for the woman’s wellbeing or that of the unborn foetuses’ ‘life’. These are some of the comments that women, some of them very young girls whose pregnancies have been caused out of rape, which have approached courts seeking abortions have had to endure.
The Amendment Act, introduced 40 years after the original enactment, continues to be oblivious to a woman’s right to decisional autonomy when it comes to her own body, her reproductive health and her future. However, recall that the MTP Act itself is meant to provide certain exceptions to the provisions of the IPC that make “causing a miscarriage” an offence.
Therefore, although women’s reproductive decisional autonomy has been recognised by the Supreme Court, its full realisation would only be possible if the provisions of the IPC making abortions a criminal offence were to be struck down, and a woman’s decision to terminate her pregnancy be left up to her and her doctor.
(Meenaz Kakalia is a lawyer practicing at the Bombay High Court. Her practice is primarily in the areas of environmental law and reproductive rights. The views expressed are personal.)