Context: In December 2020, Argentina’s Congress legalised abortions up to the 14th week of pregnancy this week, in what was a ground-breaking decision in a country that has some of the world’s most restrictive abortion laws.
- The Medical Termination of Pregnancy Act, 1971 regulates the conditions under which a pregnancy may be aborted. The Bill increases the time period within which abortion may be carried out.
- Currently, abortion requires the opinion of one doctor if it is done within 12 weeks of conception and two doctors if it is done between 12 and 20 weeks.
- The Bill allows abortion to be done on the advice of one doctor up to 20 weeks, and two doctors in the case of certain categories of women between 20 and 24 weeks.
- The Bill sets up state level Medical Boards to decide if a pregnancy may be terminated after 24 weeks in cases of substantial foetal abnormalities.
- This implies that for a case requiring abortion due to rape, that exceeds 24-weeks, the only recourse remains through a Writ Petition.
- The Bill does not specify the categories of women who may terminate pregnancies between 20-24 weeks and leaves it to be prescribed through Rules.
- The Act (and the Bill) require abortion to be performed only by doctors with specialisation in gynaecology or obstetrics.
- As there is a 75% shortage of such doctors in community health centers in rural areas, pregnant women may continue to find it difficult to access facilities for safe abortions.
Unclear if transgender persons will be covered
- The Act and the Bill allow “pregnant women” to terminate pregnancies under certain conditions. Note that the Transgender Persons (Protections and Rights) Act, 2019 recognises transgender as an additional gender in India. Some medical studies have shown that there may be cases where persons who identify as transgender (and not women) can become pregnant even after receiving hormone therapy to transition from female to male, and may require termination services. Since the Act and the Bill only provide for termination of pregnancies in the case of women, it is unclear if transgender persons will be covered under the Bill.
Table 1: Changes proposed in conditions for terminating a pregnancy at different gestational periods
|Time since conception||Requirement for terminating pregnancy|
|MTP Act, 1971||MTP (Amendment) Bill, 2020|
|Up to 12 weeks||Advice of one doctor||Advice of one doctor|
|12 to 20 weeks||Advice of two doctors||Advice of one doctor|
|20 to 24 weeks||Not allowed||Two doctors for some categories of pregnant women|
|More than 24 weeks||Not allowed||Medical Board in case of substantial foetal abnormality|
|Any time during the pregnancy||One doctor, if immediately necessary to save pregnant woman’s life|
- Note: *Doctor refers to registered medical practitioner with experience/training in gynaecology or obstetrics.
- Under the Indian Penal Code, 1860, voluntarily terminating a pregnancy is a criminal offence. The Medical Termination of Pregnancy Act, 1971 was enacted as an exception to the IPC, to provide for the termination of certain pregnancies by registered medical practitioners.
Medical Termination of Pregnancy Act, 1971 It is possible to get an abortion under the Medical Termination of Pregnancy Act, 1971 if pregnancy is under 20 weeks.
- However, it is subject to several conditions and conducting an abortion without fulfilling the conditions is considered a crime.
What are the conditions?
- Under the medical termination of pregnancy Act 1971, the doctor can perform an abortion in the following situations:
- If the pregnancy would be harmful to the life or physical or mental health of the woman.
- If there is good chance that the child would suffer from physical or mental abnormalities which would leave him or her seriously handicapped.
Who needs to be satisfied that the conditions have been fulfilled to get an abortion?
- If the pregnancy has not exceeded 12 weeks (first trimester), only one doctor needs to be satisfied that the conditions have been fulfilled.
- If the pregnancy has exceeded 12 weeks and is below 20 weeks (first trimester), two doctors need to be satisfied that the conditions have been fulfilled.
- The gestation period does not matter if doctor feels that an immediate abortion must be conducted to save the life of the woman.
- The doctor who determines if it is necessary to perform an abortion and performs it needs to be a ‘registered medical practitioner’ under the law.
- Termination is also allowed at any point during the pregnancy if there is an immediate necessity to save the woman’s life.
Failure of contraceptives
- If you are a married person, you should be able to get an abortion if contraceptives did not work and you did not want to have more children.
- The doctor has a legal duty to assume in such cases that the pregnancy affects your mental health gravely.
- The same legal duty does not unfortunately apply to unmarried women.
- However, this does not mean that you cannot get an abortion.
- If the doctor forms an opinion that your mental health will suffer if the pregnancy continues, he or she can perform the abortion.