Navigating the Legal and Policy Environment Impinging Upon the MTP Act (Amendment) 2021

The Medical Termination of Pregnancy Act of 1971, which was amended in 2021, says in its preamble "Notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence under that code or any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act." This statement seeks to present the MTP Act as an Act which overrides criminalization of abortion in India, under sections of the Bhartiya Nyay Sanhita (which was the IPC of 1860 recently), unless provided within the framework laid down by the MTP Act (Amendment) 2021.

This also reminds us that abortions continue to be a criminal offence in India under certain sections of the Bhartiya Nyay Sanhita, and not as a rights-based provision.

Thus, access to safe abortion services has neither been universal for all pregnant persons irrespective of their age, gender, stage of gestation, or where they live, for example, nor rights-based, where pregnant persons can 'choose' to access an abortion service, without having to fulfil certain conditions laid down within the MTP Act. Rights-based access would recognize the choice, the reproductive autonomy of the pregnant person to take a decision about terminating their pregnancy, and act upon that decision, without hearing the society, or overstepping any law of the land.

The threat to abortion services under the Medical Termination of Pregnancy (MTP) Act, despite the amendment in 2021 to expand access to safe and legal abortion services in India, is escalating due to the confluence of various laws such as the Protection of Children from Sexual Offences Act (POCSO), the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PCPNDT), the Clinical Establishments Act, and the Drugs and Cosmetics Act. This overlap often leads to increased regulatory scrutiny, legal ambiguities, and potential criminalization of healthcare providers, thereby deterring them from offering safe abortion services. Additionally, these laws collectively create a restrictive environment that hampers timely access to safe procedures, raising women's health and violating their reproductive rights and justice. The merging of these legal frameworks without clear distinctions threatens to undermine the progress made in expanding abortion access in India.

Priority Actions identified by ARISE to address this thematic priority

Create simplified explainers on the MTP Act (Amendment) 2021, and laws (POCSO, PCPNDT, IPC/BNS, and the Drugs and Cosmetics Act) impinging upon the Act to impact legal and safe access to abortion services
Build capacity among providers and stakeholders and create practical step-by-step guidance on navigating legal and procedural requirements, including clinic registration and compliance, and attending to minors.
Build and strengthen alliances with key actors such as MoHFW, FOGSI, State Health Departments, medical council, legal advocacy organizations
Develop protocols and mechanisms for tangible protection for service providers affected by law enforcers in turn denying abortion services due to fear of contravening POCSO/PCPNDT Acts
Analyse legal provisions and develop interpretative guidance around telemedicine services for medication abortion within the existing legal framework

The Medical Termination of Pregnancy (Amendment) Act, 2021, amended the existing MTP Act of 1971 to expand access to safe and legal abortion services in India. Key changes include increasing the upper gestation limit for termination in certain cases and strengthening access to comprehensive abortion care. The amendments aim to provide women with greater autonomy to make informed choices, particularly in situations involving rape, incest, or other vulnerable circumstances. They also address the need for timely diagnosis and terminations of pregnancies with severe fetal abnormalities. The amendments are intended to ensure the dignity, autonomy, confidentiality, and justice for women seeking to terminate a pregnancy, according to the Press Information Bureau (PIB).