The Medical Termination of Pregnancy (Amendment) Act, 2021 alters the MTPA 1971 to raise the upper limit for abortion from 20 to 24 weeks for certain types of women. The Amendment raises the upper gestation limit from 20 to 24 weeks for particular groups of women, which would be described in the MTPA 2021 and would include rape survivors, incest victims, and other vulnerable women (such as differently-abled women, minors), among others.

The Medical Termination of Pregnancy (Amendment) Act, 2021 (MTPA 2021) was approved on the 16th of March, 2021 thereby amending the provisions of the Medical Termination of Pregnancy Act, 1971 (MTPA 1971). The Act in general governs when and how pregnancy can be terminated. The bill extends the time frame for abortion.

This amendment is a welcome step towards the safety and well-being of the women in the country. There were several petitions which have been recently filed in the courts asking for authority to abort unwanted pregnancies at a gestational age beyond the current permissible limit due to foetal abnormalities or pregnancies caused by sexual assault. The amendments aim to broaden the scope of safe abortion services available to women and ensure their dignity, autonomy, secrecy, and justice for women who need to end their pregnancies.

Some of the key takeaways of the amendment in a nutshell are:

1. Raising the upper gestation limit from 20 to 24 weeks for particular groups of women, which would be described in the MTPA 2021 and would include rape survivors, incest victims, and other vulnerable women (such as differently-abled women, minors), among others.
2. If an abortion is performed within 12 weeks of conception, one doctor's opinion is required; if the abortion is performed between 12 and 20 weeks, two doctors' opinions are required.
3. The bill enables abortion on the recommendations of one doctor up to 20 weeks, and two doctors between 20 and 24 weeks for specific categories of women.

Is Terminating a Pregnancy a Criminal Offence in India?

Voluntarily terminating a pregnancy is a criminal offence under the Indian Penal Code, 1860 (IPC). The Medical Termination of Pregnancy Act of 1971 authorizes medical doctors (with specific specialization) to abort a pregnancy on certain grounds. Pregnancy can be terminated at any time up to 12 weeks if one doctor agrees, and up to 20 weeks if two doctors agree. Only where the pregnancy's continuation will endanger the pregnant woman's life, cause grave harm to her mental or physical health (including rape and refusal to utilize birth control), or result in foetal abnormalities is it permissible to terminate the pregnancy. Termination is also permitted at any time during the pregnancy if it is necessary to save the life of the woman concerned.

It alters the MTPA 1971 to raise the upper limit for abortion from 20 to 24 weeks for certain types of women, removes the limit in cases of significant foetal abnormalities, and establishes state-level Medical Boards. According to Bill's Statement of Objects and Reasons, multiple cases have been brought in the Supreme Court and different High Courts requesting authorization to terminate pregnancies at stages beyond the Act's 20-week restriction based on foetal abnormalities or pregnancies in cases of rape. It also adds that as medical technology advances, the maximum limit for terminating pregnancies may be raised, particularly for vulnerable women and in situations of severe foetal abnormalities.

Grounds for Terminating a Pregnancy:

In general, there are two opposing viewpoints on the legalization of abortions. According to one viewpoint, terminating a pregnancy is the pregnant woman's option and a part of her reproductive rights. The alternative viewpoint is that the state commits to safeguard life and, as a result, the foetus should be protected. Depending on considerations such as foetal viability (the point at which the foetus can live outside the womb), foetal abnormalities, or harm to the pregnant mother, various countries across the globe have imposed varied requirements and time restrictions for legalizing abortions.

In India, The MTPA 1971 was created as an exemption to the IPC to allow certified medical practitioners to terminate certain pregnancies. The Bill does not identify which women are eligible to terminate pregnancies between 20 and 24 weeks and instead leaves it to be determined by rules. Such topics, it may be claimed, should be specified by Parliament rather than delegated to the executive.

A married woman may terminate a pregnancy up to 20 weeks after the failure of a contraceptive technique or device under the Act. Unmarried women can also terminate a pregnancy for this reason under the Bill.

Powers of the Medical Board:

A Medical Board will be formed by all state and union territory administrations. The Board will decide whether or not a pregnancy can be ended beyond 24 weeks owing to significant foetal abnormalities. The state government will appoint a gynecologist, pediatrician, radiologist/sonologist, and other members to each Board.

Is the Amendment Inclusive of Transgender?

Under certain instances, the Act and the Bill allow “pregnant women” to terminate their pregnancies. It's worth noting that India's Transgender Persons (Protections and Rights) Act, 2019, recognizes transgender as a separate gender. According to certain medical research, people who identify as transgender (and not necessarily as women) may get pregnant after taking hormone therapy to transition from female to male, necessitating termination services. It's unclear if transgender people will be protected by the Bill because it only covers the termination of pregnancies for women.

What is the outcome of this amendment?

The Medical Termination of Pregnancy (Amendment) Bill, 2021 aims at expanding access to safe and legal abortion services on therapeutic, eugenic, humanitarian, or social grounds for women. The amendments include the substitution of certain sub-sections, insertion of certain new clauses under some sections in the existing Medical Termination of Pregnancy Act, 1971, to increase the upper gestation limit for termination of pregnancy under certain conditions and to strengthen access to comprehensive abortion care, under strict conditions, without compromising service and quality of safe abortion.

Despite these positive changes in the country's reproductive rights for women, abortion has always sparked heated moral, ethical, political, and legal disputes. Because abortion is a fulcrum of a much greater ideological conflict in which the fundamental meanings of the family, the state, motherhood, and women's sexuality are fought, it is not simply a medico-technical issue anymore.

The Supreme Court of India in the case of K.S. Puttaswamy v. Union Of India, has already established that reproductive choice is personal liberty guaranteed under Article 21 of the Indian constitution. Despite creating a robust jurisprudence on reproductive rights and the privacy of a woman, Article 21 of the Indian constitution does not translate into a major transfer of power from the doctor to the woman seeking an abortion. As a result, abortion is still linked to state-sanctioned conditions rather than a woman's rights.