Reproductive Rights in India: Legal Developments post the 2023 MTP Amendment

Introduction

In this developing world , unemployment , poverty , wars ,economic crises, environmental issues get most of the attention of the people but  reproductive rights  remain ignored . The International human rights framework defines reproductive rights as the ability of individuals to make informed decisions about their reproductive health inclusive of when to have a child , knowledge of methods of birth control and process of abortion  .This right also include some other rights such as right to plan a family, terminate a pregnancy , use contraceptives , sex education in public schools and gain reproductive health services.  But the question arises: Are people aware of these rights ?  The  world emphasises on the awareness  of our fundamental and legal rights but in the present scenario Studies indicate that awareness of reproductive rights in India is limited, particularly among women in rural areas and among adolescents

According to The Indian journal of public health A study in Eastern Uttar Pradesh found that only 42.9% of adolescent girls were aware of the legal age of marriage, and just 14.9% knew the right age for childbearing. Awareness of the Medical Termination of Pregnancy (MTP) Act was extremely low—only 2.6%—and less than half recognized related laws like the Dowry Prohibition or Domestic Violence acts

In India reproductive rights are majorly governed by the Medical Termination of Pregnancy act 1971 and its subsequent amendments , alongwith certain provisions of indian constitution like Article 21 , prevention of child Marriage act 2006 ( for legal age of marriage and indirectly related to reproductive health ) and the assisted reproductive technology ART regulation act 2021 for IVF

History of  The Medical Termination Of Pregnancy Act 

Medical termination of pregnancy act is a law implemented by the government of India for the safe and legal termination of pregnancy of a woman on the basis of certain conditions and by the approval of medical practitioners . It was first introduced in 1971 . Over the years  the act went through changes and subsequent amendments were made in 2003 and 2023. The act defined medical practitioner  as a doctor who possesses any recognized medical qualification as defined in Cl.(h) of Sec. 2 of the Indian Medical Council Act, 1956 , whose name has been entered in a State Medical Register and who has such experience or training in gynecology and obstetrics as may be prescribed by rules made under this Act. the key objectives of MTP Act is to Protect the lives and health of pregnant women , Provide safe, legal access to abortion services ,to Reduce illegal and unsafe abortions and Balance the rights of women with ethical and legal concerns

Medical Termination of Pregnancy Act 1971

It is an Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto 

This extends to the whole of India except the State of Jammu and Kashmir.

According to this act

• if the length of the pregnancy is under 12 weeks there is the requirement of consultation of 1 medical practitioner .
• if the length of the pregnancy is between 12 to 20 weeks then there is the need of consultation of 2 medical practitioners

The medical practitioner should have formed the opinion in good faith i.e

1. the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health
2. there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped

Moreover in some other cases the termination should be approved

• Rape – In rape cases the pregnancy effect mental health of women
• Unwanted pregnancy as a result of failure of use of devices or birth control pills – It causes grave injury to mental or physical health of women

 If continuance of this pregnancy lead to risk of injury to health on foreseeing environment of women in which she lives

• If the patient has Not attained the age of 18 or has Attained age of 18 and is a lunatic

Termination should be done with the consent of guardian in writing

Medical Termination of Pregnancy Rules and Regulations 2003

 This amendment was done to make laws for the effective implementation of the 1971 act

All the details for record keeping were made confidential for securing the privacy of women .

 Medical Termination of Pregnancy Act 2023

This Act was enacted by the Medical Termination of Pregnancy Act Amendment Bill 2021 . It talks about the inclusion of termination of pregnancy of rape survivors , victims of incest , differently -abled , minors etc.

It changed the requirement of medical practitioners on the basis of the duration of pregnancy . It suggested the requirement of consultation of 1 medical practitioner for pregnancy under 20 weeks  of a married woman on the failure of contraceptive methods or device  and 2 medical practitioner for pregnancy between 20 to 24 weeks .Opinion of the State-level medical board is essential for a pregnancy to be terminated after 24 weeks in case of substantial foetal abnormalities.

This is the first time  the Act talked about the termination of pregnancy of an unmarried female.

Developments

India has experienced major legislative and judicial developments post The Medical Termination Of Pregnancy Amendment Act 2023 . It not only addressed the reproductive rights of women , but also extended its concern towards transgender and gender variant persons . The Supreme Court of India in 2023 restates that reproductive decision making is also a fundamental right under Article 21 of the Indian Constitution  and extends these rights to transgender and gender variant persons . A special emphasis was given on personal , social and economic circumstances of the person so that correct abortion decisions could be made .

In  X vs The Principal Secretary Health and family welfare Department & Another ; case an unmarried woman was pregnant with 22 weeks and was appealing for abortion .The HC held that that abortion will not be permitted as the pregnancy arose out of a consensual relationship . A special leave petition was then filled in the SC and  a 3 judge bench emphasised that in gender – equal society this should also be given importance . Speaking for the bench, Justice Chandrachud noted, “A changed social context demands a readjustment of our laws. Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice” . Therefore  SC increased the scope  of the act to unmarried women also.

Medical boards are now mandated to evaluate requests of termination of pregnancy beyond 24 weeks especially for fetal anomalies . Moreover , mental health reasons were considered as a ground for abortion . SC acknowledged that severe mental health issues like postpartum depression or Psychological trauma due to pregnancy should be considered as a ground for abortion even beyond the typical gestation period . The court added that the patient must prove their mental health is in serious danger, not just general stress or discomfort .

As in recent times Privacy has been given importance so the amendment strengthened confidentiality provisions , restricting disclosure of pregnancy details to authorized persons . This was a major step to protect women”s privacy but can also introduce procedural delays . But when we take the case of rape victimes and minors a tension could be seen between procedural restrictions and reproductive rights

According to a recent case filed in the Bombay High  ABC vs State of Maharashtra ; court a 31 year old unmarried woman sought medical termination of pregnancy of 25 weeks which is more than the limit of 24 weeks . Her pregnancy was caused due to the failure of the contraceptive method . The woman’s health condition stated that if she was forced to continue – she would face mental anguish , isolation and mental trauma . A medical board examined her although there were no fetal anomalies but due to the lack of emotional and financial support she could experience grave mental distress .Thus the court allowed the medical termination

Government measures for reproductive rights in India

In order to improve reproductive rights, the government has implemented different measures mainly focusing on the mental and physical health of the mother as well as child,family planning and access to safe abortions . The government took certain initiatives like :

Pradhan Mantri Surakshit Matritva Abhiyan (PMSMA) – this initiative focuses on providing free , assured and quality antenatal care to pregnant  for the second and trimester

Janani Suraksha Yojana (JSY) – It is a safe motherhood intervention under intervention under the National Health Mission in India ,focused on reducing mental and infant mortality rates by promoting institutional deliveries . This scheme also provides cash assistance to eligible pregnant women who choose to deliver at  a healthcare facility . Its core objective is to reduce maternal and infant mortality .

Conclusion

The legal trajectory of reproductive rights in India has seen variations over the years . From the recognition of married women to inclusion of  transgender and gender variant persons and extending these rights to unmarried women the development of the Medical Termination of Pregnancy Act has provided great recognition and emphasis on individual autonomy , gender equality and reproductive justice . Although the interpretation of the act is widened , gaps still remain particularly around awareness , medical infrastructure and inclusion of marginalised groups.