MTPA: A Critique Of The MTP (Amendment) Act, 2021

The Need To Remove The Statutory Ban On Abortion Beyond 24 Weeks In India: A Critique Of The MTP (Amendment) Act, 2021

This article is written by Tejas Sateesha Hinder  3rd year B.A. LLB student of  National Law Institute University, Bhopal. In this article, the author explained the Critique Of The MTPA, 2021.

With the passage of the Medical Termination of Pregnancy (Amendment) Bill, 2021 by the Upper House of the Indian Parliament, it has now taken the form of enforceable law, i.e. Act, as the Medical Termination of Pregnancy (Amendment) Act, 2021, amending the earlier 1971 Act[1], to the extent of increasing the period for abortion from 20 weeks to 24 weeks since conception, in exceptional cases such as survivors of rape, victims of incest and other vulnerable women.

In this article, the author contends that the current laws under the Medical Termination of Pregnancy Act (hereinafter “MTPA”) are violative of the right of a woman to make her bodily decisions under Article 21 of the Constitution. The author stresses the fact that the right to make your own reproductive decisions is a right enshrined under Article 21 and also extends to the right to decide to take one’s pregnancy to term.

The rights of the mother also supersede the rights of the fetus and hence it is her right that should be fought to be preserved. There is much dispute over whether or not a fetus can be regarded as a person or a legal entity and in light of such disparity it is the rights of a recognized individual which need to be protected.

read: Uniform Civil Code – An Overview

Curtailment of Rights under Article 21

The right to life includes both the right to health[2] and the right to a dignified existence[3]. Both of these rights are violated when women are compelled to carry a pregnancy to a term that compromises their health and that can severely impact their financial wellbeing and family welfare.

Denial of access to legal abortion in such circumstances amounts to forced pregnancy and constitutes violations of the right to freedom from cruel, inhuman, and degrading treatment, as well as the right to life, health, and non-discrimination. The mental trauma caused by being forced to carry a pregnancy to term in cases where the fetus is so severely impaired is foreseeable.[4]

The judgment in Suchita Srivastava v. Chandigarh Administration[5] was discussed in the case of KS Puttuswamy v. Union of India[6] stating that woman has the right to make her own reproductive decisions and her right to do so fell under the ambit of Article 21 of the Indian Constitution. It was also discussed that there should be absolutely no restriction on a woman’s decision-making in this regard.

There have been many cases where the Supreme Court has in fact allowed abortion either around or post the limit prescribed by the MTPA[7] These were all instances where there was a threat to either the life of the mother or that of the fetus.

do read- Journey of Article 21 in context of Right to Privacy

Supersession of Rights of Mother over Child

Article 21 of the Constitution of India defines the right to life and personal liberty of any ‘person’ in India. However, there is a lot of debate on whether a fetus can be recognized as a legal entity.

The MTPA has recognized that a mother has the right to abortion at least till the 24th week of pregnancy. The MTPA gives a woman a legal right to end the life of a fetus. If it is suddenly argued that even a fetus has a right to life under Article 21 of the Constitution of India, then the entire idea of Abortion must be eliminated.

There is no way to ascertain at which point a fetus becomes a living person. Certain religious principles like The Qur’an and the tradition of the Prophet Muhammad declared the ensoulment period to be about 120 days and is considered a person post this point.  On the other hand, scholars like Ronald Dworkin assert that a fetus only becomes comparable to a person when its brain is fully developed.[8]

In view of such dispute amongst the world community, it is the rights of the mother which should be given precedence over the rights of a fetus who may or may not be an entity before the law. The legal understanding of the concept of ‘person’ or ‘personality’ revolves around possession of rights and capacity to discharge legal duties.

visit- Parvez Noordin Lokhandwalla vs State Of Maharashtra

Hence, natural persons, that is, human beings are the prime claimants of legal personality. The concept of legal personality of the unborn child has been puzzling and uncertain since inception; hence, the case law regarding the same has also been inconsistent.

By most international standards, a fetus is treated as a person only after its birth. The Universal Declaration of Human Rights[9] has rejected a proposal to delete “born,” and the resulting text of the Declaration conveys intentionally that the rights of the Declaration are “inherent from the moment of birth”. The International Covenant on Civil and Political Rights (ICCPR) rejects the proposition that the right to life, protected in Article 6(1), extends to prenatal life.

The drafters of the ICCPR specifically rejected a proposal to amend this article to provide that “the right to life is inherent in the human person from the moment of conception, this right shall be protected by law”[10] The jurisprudence of the Committee on the Elimination of Discrimination against Women (hereinafter “CEDAW Committee”) makes clear that the fundamental principles of non-discrimination and equality require that the rights of a pregnant woman be given priority over an interest in prenatal life.

In the case of L.C. v. Peru[11], the CEDAW Committee held that the denial of therapeutic abortion and the delay in providing the surgery constituted gender-based discrimination and violated her rights to health and freedom from discrimination.[12] The CEDAW Committee has further expressed concern that women’s rights to life and health may be violated by restrictive abortion laws.

also read- Surrogacy: Regulation or Restrictions

The need for a grant of abortions without restrictions on the advice of medical practitioners

The Amendment to Section 3 of the MTPA is to not completely make the right to abortion free of any restrictions. Abortions post 24 weeks may be detrimental to the life of both the mother and the fetus. [13]

The MTPA recognizes that pregnancy due to failure of birth control or rape can lead to mental stress, however, denying a pregnancy to a woman whose life may be in danger or whose child may be born with an abnormality will lead to a severe element of mental stress in her life also. [14]

Currently, those who wish to get an abortion beyond the prescribed limit may do so by appealing to the Court however pregnancy is a time-bound thing and the process of litigation draws out a process that a person may be in severe need of. It is important to make these changes so that valuable time is not lost in the process of litigation.

Abortion: An Account of Struggle

 

-Edited by Samarth Pathak

(Editor, The Legal State)

[1] Medical Termination of Pregnancy Act (1971).

[2] M.C. Mehta v. Union of India, AIR 1988 SC 1037.

[3] Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 621.

[4] Dr. Nikhil D. Datar v. Union of India Special Leave Petition (C) 5334 of 2009.

[5] Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.

[6] Justice K.S. Puttuswamy & Anr v Union of India and Ors, Writ Petition (Civil) No 494 Of 2012.

[7] Meera Santosh Pal v. Union of India, 2017 SCC SC 39; Mamta Verma v. Union of India And Ors., Writ Petition (Civil) No.627 Of 2017; Suchita Swapnil Latkar v Union of India And Ors., Writ Petition (Civil) No.855 of 2017, Mrs X and Ors v Union of India and Ors, Writ Petition (Civil) No. 81 Of 2017.

[8] Ronald Dworkin, Freedom’s Law: The moral reading of the American Constitution, 90 (Oxford University Press ed., 1999).

[9] UN General Assembly (1948), Universal declaration of human rights (217 [III] A). Paris.

[10] U.N. GAOR 3rd Comm., 99th mtg., 110-124, U.N. Doc. A/PV/99 (1948).

[11] CEDAW. Case of L. C. v. Peru. Committee on the Elimination of Discrimination against Women (CEDAW); 2011.

[12] L.C. v. Peru, CEDAW Committee, Commc’n No. 22/2009, 8.15, U.N. Doc. CEDAW/C/50/D/22/2009 (2011).

[13] Anne Harding, Late abortions ups later pregnancy termination risk, Reuters, (June 19, 2010, 2:00 am), https://www.reuters.com/article/us-late-abortion/late-abortion-ups-later-pregnancy-termination-risk-idUSTRE65169Q20100602.

[14] Sheetal Shankar Salvi & Anr v Union of India, Writ Petition (Civil) No. 174 of 2017.

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