Subject: Governance

Context

The Medical Termination of Pregnancy Bill doesn’t do enough to secure women’s choices and interests.

Deaths due to unsafe abortion and previous attempts to legislate

• Deaths due to unsafe abortions: Recent reports have shown that more than 10 women die every day due to unsafe abortions in India.
  • And backward abortion laws only contribute to women seeking illegal and unsafe options.
• The Cabinet has recently approved the Medical Termination of Pregnancy (Amendment) Bill, 2020 (MTP Bill, 2020) which will soon be tabled in Parliament.
  • It seeks to amend the Medical Termination of Pregnancy Act, 1971 (MTP Act) and follows the MTP Bills of 2014, 2017 and 2018, all of which previously lapsed in Parliament.

Provisions of the current law

• Foetus-age based division: The MTP Act divides its regulatory framework for allowing abortions into categories, according to the gestational age of the foetus.
  • Up to 12 weeks: Under Section 3, for foetuses that are aged up to 12 weeks-
  • Only one medical practitioner’s opinion is required to the effect that the continuance of the pregnancy would pose a risk to the life of the mother or cause grave injury to her physical or mental health.
  • Or there is a substantial risk that if the child is born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
  • Between 12 weeks and 20 weeks: But if the foetus is aged between 12 weeks and 20 weeks-
  • At least two medical practitioners’ opinions conforming to either of the two conditions are required.
  • What beyond 20 weeks? Beyond 20 weeks, termination may be carried out where it is necessary to save the life of the pregnant woman.
• Definition of grave injury: The MTP Act also specifies that ‘grave injury’ may be explained as
  • The anguish caused by a pregnancy arising out of rape, or the anguish caused by an unwanted pregnancy arising out of the failure of a contraceptive used by a married woman or her husband.

What are the issues with the current law?

• Several issues arise from the current framework under the MTP Act.
• First-Lac of autonomy of women: At all stages of the pregnancy, the healthcare providers, rather than the women seeking an abortion, have the final say on whether the abortion can be carried out.
  • It is true that factors such as failure of contraceptives or grave injury are not required to be proved under the MTP Act.
  • However, to get the pregnancy terminated solely based on her will, the woman may be compelled to lie or plead with the doctor.
  • Thus, at present, pregnant women lack autonomy in making the decision to terminate their pregnancy and have to bear additional mental stress, as well as the financial burden of getting a doctor’s approval.
  • On request abortion in 67 countries: Indian’s law is unlike the abortion laws in 67 countries, including Iceland, France, Canada, South Africa and Uruguay, where a woman can get an abortion ‘on request’ with or without a specific gestational limit (which is usually 12 weeks).
• Second-Prejudice against unmarried women: The MTP Act embodies a clear prejudice against unmarried women.
  • According to ‘Explanation 2’ provided under Section 3(2) of the Act, where a pregnancy occurs due to failure of any birth control device or method used by any “married woman or her husband”, the anguish caused is presumed to constitute a “grave injury” to the mental health of the pregnant woman.
  • While the applicability of this provision to unmarried women is contested, there is always the danger of a more restrictive interpretation, especially when the final decision rests with the doctor and not the woman herself.
• Third-Restriction of 20 weeks’ limit: Due to advancements in science, foetal abnormalities can now be detected even after 20 weeks.
  • Danger to mother’s life only condition after 20 weeks: The MTP Act presently allows abortion post 20 weeks only where it is necessary to save the life of the mother.
  • Problem with this restriction: The above restriction means that even if a substantial foetal abnormality is detected and the mother doesn’t want to bear life-long caregiving responsibilities and the mental agony associated with it, the law gives her no recourse unless there is a prospect of her death.

What does the bill fail to address?

• While the MTP Bill, 2020, is a step in the right direction, it still fails to address most of the problems with the MTP
• First, it doesn’t allow abortion on request at any point after the pregnancy.
• Second, it doesn’t take a step towards removing the prejudice against unmarried women by amending the relevant provision.
• And finally, it enhances the gestational limit for legal abortion from 20 to 24 weeks only for specific categories of women such as survivors of rape, victims of incest, and minors.
  • This means that a woman who does not fall into these categories would not be able to seek an abortion beyond 20 weeks, even if she suffers from a grave physical or mental injury due to the pregnancy.

What are the provisions for the case of foetal abnormality in the bill?

• Limit irrelevant if the foetal abnormality is diagnosed by the Medical Board: The Bill does make the upper gestational limit irrelevant in procuring an abortion if there are substantial foetal abnormalities diagnosed by the Medical Board.
  • This means that even if there is no threat to the mother’s life, she would be able to procure an abortion as soon as a substantial foetal abnormality comes to light.
  • While this is an important step and would have in the past helped many women who fought long battles in Court without recourse.
  • Rules against unnecessary delays: It is crucial that this provision is accompanied by appropriate rules for the Medical Boards that guard against unnecessary delays, which only increase the risks associated with a late abortion.

Conclusion

• Recognition of women’s right: The Supreme Court has recognised women’s right to make reproductive choices and their decision to abort as a dimension of their personal liberty (in  X v. Union of India,2017) and as falling within the realm of the fundamental right to privacy (in K.S. Puttaswamy v. Union of India, 2017). Yet, current abortion laws fail to allow the exercise of this right.
• The bill does not do enough: While it is hoped that MTP Bill, 2020 will not lapse in Parliament like its predecessors, it is evident that it does not do enough to secure women’s interests, and there is still a long road ahead for progressive abortion laws.

Context

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.

Why the amendment was necessitated?

• Abortion (unsafe) accounts for almost 10 per cent of maternal deaths in India.
• No provision to avoid unsafe abortion: 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 the state responsible to provide safe abortion services.
• Reduce the burden on judiciary: 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.
• Two types of Court cases: The court cases are broadly two types.
  • The first group of cases: These 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.
  • The second group of cases
  • These are of pregnancies that become unwanted after congenital foetal anomalies are found upon testing.
  • With advancements in prenatal foetal screening/diagnostic technologies, more such cases are knocking at the doors of courts.
  • Marginal interval under the current act: 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.

How the law could be misused?

• Possibility of using any anomaly as a ground for abortion: 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 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.
• Social acceptability and anomaly: What constitutes an anomaly changes depending on what is considered socially desirable.
  • Issue of raising children with disability: 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.

The risk to the life of women

• Abortion beyond 12 weeks carries serious health risks.
  • 12 weeks provision under current law: Current law requires the expert opinion of two registered medical practitioners for the abortion beyond 12 weeks.
    • Extending the limit to 20 weeks and risk involved: 12-week 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.
    • Possibility of more complications: Without the strengthening of public services, easing second-trimester abortions between 12-20 weeks opens the possibilities of more complications and endangers the life of the woman.

Conclusion

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.

Context

In some ways, China is setting the standard for a public health response that may become a way of life in the 21st century.

Origin of the outbreak and deadly it could turn out?

• Outbreak of unknown virus: In December 2019, an outbreak of viral pneumonia of unknown etiology emerged in Wuhan, a city in the central Chinese province of Hubei.
• Discovery of novel coronavirus:  A few weeks later, the World Health Organization (WHO) and Chinese health authorities announced the discovery of a novel coronavirus, known now as 2019-nCoV, as being responsible for the pneumonia.
• Important questions: The two most important questions asked in a fast-evolving pandemic of this nature are:
  • 1) How deadly is the disease, and;
  • 2) Can it be contained?
  • The latest available figures suggest that the death toll in China is 304 and 14,411 have been infected. The current fatality rate estimate of 2% is unstable and is likely to fall as more cases are detected.

Containment attempts by China and spread to the other countries

• Unprecedented attempt by China: The attempt at containment started late, but has never been attempted in the fashion that China has gone about it.
  • Wuhan lockdown: Belatedly, on 23 January, China locked down Wuhan and 12 other cities, quarantining 52 million people in one sweeping action.
  • This is the first known case in modern history of any country locking down an entire large city.
• Reports of confirmed cases from other countries: Confirmed cases have since been reported from Hong Kong, Macau, Taiwan, Thailand, South Korea, Japan, Singapore, Australia and the US.
  • India reported its first case from Kerala of a medical student from Wuhan University, followed by two more.
  • Singapore and the US have now banned foreign nationals who have recently been in China from entering the country.
  • Russia, Canada, the UK and India have begun evacuating citizens from Hubei province.

Research on coronavirus so far

• Coronaviruses (CoVs) are characterized by club-like spikes that project from their surface, an unusually large RNA genome and a unique replication strategy.
  • CoVs cause a variety of diseases in mammals and birds, ranging from enteritis in hoofed animals to potentially lethal human respiratory infections.
  • Genome sequence: The 2019-nCov genome was sequenced in China in early January and reported in The Lancet last week.
  • It suggests that the original host of this coronavirus was a bat reservoir, though it is unclear whether there was an intermediate host.
• A recent entry to the human host: The uniformity of the sequenced genome suggests that the virus has entered human hosts very recently.
• Recent emergence from the animal reservoir: Several other countries, including the US and France, have sequenced the RNA of the 2019-nCoV as well. These sequences and their similarity to the initial samples from China suggest a single, recent emergence from an animal reservoir.

Tests and vaccine development

• How is the virus tested? Testing for 2019-nCoV requires a reverse transcription polymerase chain reaction test (RT-PCR) which converts RNA into DNA, making study and comparison easier.
• No vaccine yet: There are no vaccines yet for this virus, but promising paths have been identified, borrowed from the SARS related vaccines.
  • Development of an effective vaccine may only come after the 2019-nCoV is contained, but it may still be useful if there were to be a subsequent outbreak.
  • The frequency of future outbreaks is only likely to increase because of climate change, global travel and fast mutating viruses.

What lessons can India learn?

• Develop framework and capacity: For India, this global health emergency should serve as an eye-opener.
  • If lockdown turns out to be a useful tool to prevent the spread of a deadly virus, India will need to develop the framework and capacity to implement such a drastic measure.
  • Under-equipped municipalities: Our municipalities are hopelessly under-equipped to implement strict isolation and containment strategies.
  • We will need to develop the capacity to build large facilities for housing patients in isolation wards.
  • Use of pre-cast: This will require India to accelerate the use of construction methods like pre-cast technology.
• Protocol and instructions: The National Centre for Disease Control (NCDC) has been proactive in updating its protocol related to the 2019-nCov and has clear instructions for reporting and assay preparation.
• Develop capacity in geographically diverse regions: Samples in India need to be sent to the National Institute of Virology in Pune.
  • While the public health and epidemic escalation framework appears capable of handling a small number of cases well, it is not clear how it will stand up to a large number of cases in a specific geographic region.

Conclusion

“Nothing happens quite by chance. It is a question of accretion of information and experience,” said Jonas Salk, the virologist who developed the polio vaccine, in some ways, China is setting the standard for a public health response that may become a necessary way of life in the 21st century. India must use this as a guidepost to greater preparedness.