Updated: February 6, 2020 9:34:36 am
The Union Cabinet’s approval of the amended Medical Termination of Pregnancy (MTP) Bill 2020 was reported on January 29. This amendment was long due and has made some anticipated changes demanded by women’s groups and courts, including the Supreme Court. The Act is not yet available in the public domain and the rules and procedures around it are yet to be formulated. The information available in the public domain, though, raises some issues.
Abortion (unsafe) accounts for almost 10 per cent of maternal deaths in India. The amended Act doesn’t have any new substantial provisions to avoid unsafe abortions. The right to safe abortion (at least till 12 weeks, when it is safer) would have made state responsible to provide safe abortion services.
The proposed amendments will definitely reduce the burden on the judiciary, especially given the plethora of cases seeking permission for abortion beyond the prescribed duration of 20 weeks. The court cases are broadly of two types. The first are pregnancies that extend beyond 20 weeks of gestation as a result of rape, incest or of minor women. The new Act rightly addresses these by extending prescribed period abortion to 24 weeks. However, such cases form a minuscule proportion of the total number. For such cases, even the 24-week cap can be done away with, provided the abortions can be safely done.
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The second group of cases are of pregnancies that become unwanted after congenital foetal anomalies are found upon testing. These foetal anomalies would involve some which are compatible with life and some which are incompatible with life. With advancements in prenatal foetal screening/diagnostic technologies, more such cases are knocking at the doors of courts. The most widely used non-invasive diagnostic test for this purpose is Ultrasonography (USG). Currently, USG is used to detect different congenital anomalies at different stages: First at 11-13.6 weeks and then at17-20 weeks. Anomalies detected at 17-20 weeks provide only a marginal interval to conduct an abortion under the current Act. The extension to 24 weeks seems to give cover to these cases for abortion services, reducing the burden on courts.
The amendments have opened up the possibility for any congenital anomaly to be used as grounds for abortion. Anomalies which are incompatible with life provide grounds for access to abortion at any time during a pregnancy — not just 24 weeks of gestation — as long as the woman desires it and it doesn’t endanger her health. But with advancements in diagnostic technologies more anomalies will be detected, including those which are compatible with life. What constitutes an anomaly changes depending on what is considered socially desirable . Technology-aided detection of “undesirability” could now find social support, as has been the case with female foetuses. This raises concerns that raising children with disability, especially in the absence of state support and poor social attitudes, could go down a similar path.
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The new Act’s eugenic purpose is clear from the release regarding it on the Press Information Bureau website: “The Medical Termination of Pregnancy (Amendment) Bill, 2020 is for expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds.”
Abortion beyond 12 weeks carries serious health risks and requires the expert opinion of two registered medical practitioners under the current Act. This requirement has been delayed till 20 weeks, though the physiology of pregnancy and risks associated with procedures for second trimester abortions haven’t changed significantly. Without the strengthening of public services, easing second trimester abortions between 12-20 weeks opens the possibilities of more complications and endangers life of the woman.
With congenital anomalies as a ground for abortion, the eugenic mindset of having socially desirable children could push more women into risky late abortions. The approach of medical boards advising courts in cases of late abortions under this Act will be critical to balancing women’s right to choose with risk to the woman and the motives for abortion. The rules framed under the Act must address this in no uncertain terms.
This article first appeared in the print edition on February 6, 2020 under the title “About Choice And Eugenics.” The writer is assistant professor at the Centre of Social Medicine and Community Health, JNU.
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