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TYPF’s Statement on The MTP (Amendment) Bill, 2020

Abortion

March 2021

Rajya Sabha Passes The MTP (Amendment) Bill, 2020
But Have We Made Considerable Progress?

The Medical Termination of Pregnancy (Amendment) Bill, 2020, introduced by the Union Health Minister Dr. Harsh Vardhan, was passed in the Rajya Sabha on March 16, 2021. The Bill is primarily aimed at increasing1 the upper limit for undergoing abortions in India. Prior to this, abortion was legally allowed within 20 weeks of gestation. With the passing of the Bill, abortion-seekers who come under the purview of ‘vulnerable women’ — either with ‘foetal abnormalities’ (‘anomalies’ being the non-discriminatory terminology) or with a pregnancy caused due to sexual violence — can now opt for an abortion between 20-24 weeks, under the authorisation of two doctors. This Bill was earlier passed in the Lok Sabha a year ago on 17 March 2020. Despite evidence-based inputs proposed by various civil society organisations as well as other key stakeholders including Members of Parliament, no changes were made to the Bill since the judgement passed a year ago. Like the Lok Sabha debate, any changes or provision of sending to a select committee weren’t considered in the Rajya Sabha debate either.

The Safe Abortion for Everyone (SAFE) programme at The YP Foundation (TYPF) supports the passing of the Bill and believes that this is a welcome change for ensuring better abortion services for some women in India. The (conditional) increase in the gestational limit for an abortion would certainly help women who fall under the ‘vulnerable’ category defined by the MTP rules. While earlier abortion seekers had to receive an authorisation from two doctors, the 2020 Bill requires the approval of only one doctor up to 20 weeks of gestation and would only require two doctors for abortions carried out between 20-24 weeks. Furthermore, the Bill has also replaced the word ‘married woman and her husband’ with the phrase ‘women and her partner’ which for the first time acknowledges the abortion needs of unmarried women, although they are2 still required to specify relational grouds while seeking an abortion.

As pointed out by various researchers and abortion advocacy groups, the Bill has several issues that hinder access to safe abortion for all and has a strong scope for further improvements.

Amendments made to Section 3 of the MTP Act, 1971 now allow ‘special categories of women’ defined by the MTP rules to opt for abortion services between 20-24 weeks, under the authorisation of two doctors. For abortions beyond 24 weeks, a medical board comprising of a gynaecologist, a paediatrician, a radiologist, a sonologist, and other members will be set up to deliberate on the feasibility of the abortion. Both these clauses over-medicalise and pathologise abortion by centering the doctors’/medical board’s opinions, rather3 than prioritising the bodily and decisional autonomy of the pregnant person. Assembling these medical boards might become an access barrier to timely abortion services due to the lack of medical professionals in the country, especially in rural settings.

It is also important to note that the language used in the Bill is exclusionary and patronising towards abortion seekers. Phrases like ‘pregnant women’ rather than ‘pregnant persons’ and ‘vulnerable women’ ostracise transgender, intersex, gender diverse, and nonbinary people from seeking abortion services, create a paternalistic hierarchy of victimhood, and offer no provisions for women who do not have medical complications or a history of sexual violence. The Bill further assures privacy and confidentiality of identity of the pregnant women, the defiance of which caused by any individual shall be punishable by law. However, the same Bill allows disclosure of the pregnant person’s identity to a person ‘authorised by law’ which violates the right to privacy and confidentiality of the abortion seeker.

The above-mentioned issues compromise on an intersectional, feminist, and rights-based reproductive justice framework on the legal provisions of abortion in India. Access to timely and comprehensive abortion healthcare and services must be recognised as a basic human right. But the MTP (Amendment) Bill, 2020 continues to perpetuate ableist and heteropatriarchal ideas around abortion.

The YP Foundation believes that centralising narratives and experiences of people who are directly affected by the law can help make the available abortion services more inclusive, especially for abortion seekers from marginalised communities in India. We also believe that the absolute right to terminate one’s pregnancy must be of the abortion seeker, rather than it being a decision of third-party authorisation. TYPF also insists that the government address the conflation with the Protection of Children from Sexual Offences (POCSO) Act,4 2012 which is in direct conflict with the confidentiality clause of the MTP Act as survivors of sexual violence who are minors require guardianship through the process, which might in turn deter them from openly seeking abortion services. Lastly, the Ministry of Health and Family Welfare must try to mitigate bureaucratic delays in accessing abortion services and work towards improving public health infrastructure both in rural as well as urban areas. Such a model can be formulated by incorporating the propositions made by feminist organisations and abortion advocacy groups which are directly associated to, or work with, key stakeholders within the reproductive healthcare sector.

1 Saxena, A. (2021). Parliament Passes Bill To Increase Upper Limit For Legal Abortions. Retrieved from https://www.livelaw.in/news-updates/parliament-passes-bill-to-increase-upper-limit-for-legal-abortions-to-24-weeks-171256

2 Alka Barua, Anubha Rastogi, V. Deepa, Dipika Jain, Manisha Gupte, Rupsa Mallik & Suchitra Dalvie (2020). The MTP 2020 Amendment Bill: Anti-rights Subjectivity, Sexual and Reproductive Health Matters, 28:1, 1795447, DOI: 10.1080/26410397.2020.1795447

3 Sajiv, P. (2021). Medical Boards under MTP Bill will make Abortion Inaccessible. Retrieved from https://www.theleaflet.in/medical-boards-under-mtp-bill-will-make-abortion-inaccessible/#

4 Dr. Pyne, S. Dr. Nagpal, A. Dr. Barua, A. (2020). Lok Sabha Debate on MTP (Amendment) Bill 2020. Retrieved from https://safeabortion889409100.wordpress.com/2020/03/27/lok-sabha-debate-on-mtp-amendment-bill-2020/

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