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Ramifications of the 2021 Amendment to the MTP Act on Minors Seeking Abortion in India

Sneha Suresh* & Saumya Chaudhary**

 

Abstract

The recent amendment to the Medical Termination of Pregnancy Act of 2021 appears to be progressive in nature however that isn’t the case. The article begins by giving a brief introduction and background to the Act and then proceeds to delve into the legal, medical and social implications of the recent amendment to the original act on minors seeking an abortion. Overall, this Article seeks to analyze the rights available to minors seeking an abortion under the MTP Act of 2021 along with discussing the inconsistencies between the MTP Act and other existing legislation pertaining to a minor's right to seek an abortion.


Keywords

Abortion, Minors, MTP Act of 2021, Reproductive Rights.


Introduction

From criminalizing abortion to the Medical Termination of Pregnancy Act of 1971 (MTP) to its recent amendment in 2021, there is no doubt that India has come a long way compared to some of the most developed nation-states in terms of abortion laws. However, these laws have not only failed to have the desired impact but, in many ways, have defeated their purpose. This has been especially true for making reproductive healthcare more accessible to minors, and it can prove to be detrimental for them. It has been estimated that at least 10 million unintended pregnancies take place each year among girls aged 15-19 years, around 5.6 million abortions take place each year among 15–19 years old, 3.9 million are unsafe, which contribute to maternal mortality, morbidity and health problems. Hence, there is an urgent need to analyze the recent laws that exist for abortion and their impact on minors' right to reproductive healthcare.


Background

Before the Medical Termination of Pregnancy Act of 1971 (MTP) was enacted, the termination of pregnancy in India came under Section 312 of the IPC which criminalized a forced miscarriage unless it was dangerous for the expecting mother. It resulted in several illegal and unsafe abortions.[1] As a result, when the MTP Act of 1971 became operational, it was expected to fulfil the dual objectives: reduce maternal mortality on the account of unsafe abortions and control the high birth rate in India.[2] While this act wasn’t ideal in theory a practice, it was a step forward from the previous laws criminalizing abortions altogether in the country. But, in recent times, an amendment was made to the act, 50 years after the enforcement of the same, and was enforced on 25th March 2021. This came to be known as the Medical Termination of Pregnancy Act, 2021. While positive changes were made to the act, the increment in the upper limit of the gestation period from 20 to 24 weeks for a special category of women including rape survivors; the need for only one medical practitioner’s opinion in case of a gestation period of 20 weeks and for two in case the gestation period lies within the 20-24 week mark; the replacement of the word “Husband” to “Partner”; the inclusion of a confidentiality clause among many other significant changes. However, the new amendment seems merely placatory in nature and is ridden with loopholes proffering no significant changes.


The Implications of the Recent Amendment on Minors Seeking Abortion


Confidentiality Clause

Section 5 of the recent amendment talks about a confidentiality clause wherein medical practitioners are expected to protect the identity of their patients seeking an abortion. However, in the previous act of 1971, it was mentioned that minors seeking an abortion needed consent from their parents or guardians. This contradiction between the two acts raises questions of whether minors will have autonomy over their reproductive rights and whether that would constitute a violation of the right to privacy? Considering the fact that sex is still considered a taboo along with the issue of the lack of dialogue between parents and their children about sexual awareness due to the shame attached to it, several children are afraid of opening up to their parents about their experiences of sexual abuse or teenage pregnancies and to get professional help requires the parent's involvement which pushes the minor to resort to unsafe methods of abortion. It is said that around 56% of abortions performed in India are unsafe; As many as 10 maternal mortalities are observed on the account of unsafe abortions each day. Hence, there seems to be all the more reason to emphasize the importance of maintaining privacy in order to protect minors from facing the physical and mental toll of going through an abortion. Article 12 of the Universal Declaration of Human rights, of which India is a signatory, states that everybody has the right to the protection of the law against arbitrary interference with their privacy. This has also been recognized through the landmark judgement of Justice Puttaswamy v. Union of India which talks about the right to privacy of an individual. During the judgment, the supreme court also referenced the right to use contraception and to access abortion.


Inconsistency with the POCSO Act and the PCPNDT Act

While the Protection of Children from Sexual Offences Act (POCSO) has been a welcomed development, there are some grey areas. It has failed to differentiate between consensual and non-consensual sex between the minors and by default, views it as statutory rape. This can also be a cause of concern for minors seeking abortions in case of pregnancy as a result of consensual sex between minors due to the legal consequences, and that in turn, prevent the minors from seeking professional help. Recently, there has been a rise in the number of children engaging in consensual sexual intercourse. In our view, it's not inappropriate to have a physical relationship at any stage of life as long as a person is fully aware of what they are consenting to do and haven’t been coerced into consenting. In this regard, the law must not conform to societies moral standards and instead should uphold the objective values of justice and liberty. Amendments to the POCSO Act and other legislation should therefore be made in this regard.


Another point of contention pertains to Section 19 of the POCSO Act which makes it mandatory for any person who is aware that a minor is pregnant to report it to the authorities. Dealing with the legal procedures makes it aversive for medical practitioners to involve themselves in aborting for a minor. Some doctors also refuse to perform abortions due to the fear of being held under the Preconception and Prenatal Diagnostic Technique Act of 1994 (PCPNDT) which was enacted to prevent sex-selective abortions.


Other Implications

In recent times, owing to lifestyle changes along with other factors, there are various health aspects that prevent a woman from ovulating every month. This can be due to hormonal imbalances resulting in PCOS, bodyweight fluctuations, sleep disruption, stress, thyroid disease. In the recent Covid-19 pandemic times, few women have complained delays in periods after vaccination. Under such circumstances, the detection of pregnancy in minor girls is difficult in the first few months. Also, as stated above, since this topic is considered taboo in our societies, gathering courage by a minor to inform a person in authority may take time. On the other hand, if we look at the bureaucratic ways of working, there are procedural delays due to certain ways of handling the cases by the police as well as the courts leading to a minor losing her right to abort within the specified 24 weeks. Setting an upper limit for termination of pregnancy in minors in our opinion is not very ideal, keeping in mind their young age. In a certain case before the Supreme Court, the Bihar government was ordered to compensate a woman who was compelled to give birth to a child she intended to abort due to delays caused by the Patna High Court and a Patna hospital. In cases involving minors, the courts reach a conclusion to permit abortion based on the opinion of a court-appointed medical board of doctors. This may cause some delay.


The MPT Act of 2021 does not delve into the socio-economic and mental health conditions of minors due to their early pregnancies as well as the detrimental effects on the minor's health after childbirth. Many minors, after giving birth, are not in a position to continue with their schooling, which in turn affects their career. In many cases, minor mothers are looked down upon in our society. They are obligated to take the responsibilities of a child at a very young age which often takes a toll on the minor's mental health. Based on the World Health Organization Report published in 2018, a major cause of death among adolescent girls is the complications from childbirth. Hence, it can be conclusively said that the current law does not cater to the needs of the minor and fails to ensure accessible reproductive healthcare.


Conclusion

The government's decision to increase the gestation period for abortion is a minor step toward making the MTP Act of 2021 the progressive law it advocates to be in terms of women's rights. However, when it comes to the cases involving minors seeking abortions, this Act is unclear. In our opinion, the law dealing with minors should be drafted separately, taking into account the physical, mental, psychological, and socio-economic well-being of the minors seeking an abortion. Instead of imposing an upper limit for termination of pregnancy among minors, we believe that legislation should flip the coin and make abortion illegal solely in circumstances where there is a risk of complications as a result of the termination of pregnancy among minors. In addition, the government should work to eliminate inconsistencies between the MTP Act of 2021 and other legislation meant for minors.

[1] Saumya Maheshwari, Reproductive Autonomy in India, 11 NALSAR Stud. L. REV. 27,28 (2017). [2] Id.


 

[*] Sneha Suresh is a second-year student at Jindal Global Law School, Sonepat, India.

[**] Saumya Chaudhary is a second-year student at Jindal Global Law School, Sonepat, India.


The views expressed are personal. The authors conducted this research during their internship at the Syin & Sern Law Review.


Preferred Citation – Sneha Suresh, Saumya Chaudhary, “Ramifications of the 2021 Amendment to the MTP Act on Minors Seeking Abortion in India", Syin & Sern Law Review, Published on 9th November 2021.


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