Gynaecologist moves Supreme Court against amended MTP Act, Claims new rules are 'illogical'

Mumbai: Opining the new rules in the Medical Termination of Pregnancy (Amendment) Act 2021 to be "illogical", Mumbai-based Gynecologist Dr Nikhil Datar has now moved to the Supreme Court seeking "fine-tune" of the new rules.

As per the doctor, the new rules that extended the deadline for medical termination of pregnancy from 20 months to 24 months, emphasized on the marital status of women, leaving out women in live-in relationships or invalid marriages (in case of bigamy under Hindu Personal Law). 

Besides, clarification was needed regarding the term of termination, norms for obtaining license for the abortion clinics especially for abortion beyond 24 weeks and the issue of breach of confidentiality.

It was Dr. Datar who back in 2008 had initiated the movement seeking extension of abortion deadline in India. Back then, Dr Datar had moved to the Bombay High Court on the behalf of her patient, who wanted abort her 24-week preganancy after a scam showed cardiac anomalies in the fetus.

As per the Medical Termination of Pregnancy (Amendment) Act, 2021, those women who will be termed to be eligible to terminate their pregnancies up to twenty-four weeks are-

Also Read: Which doctors Can Perform AN MTP: New Rules give some relaxations on eligibility but put limits of gestation criteria

"The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of subsection (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely:-

(a) survivors of sexual assault or rape or incest;

Medical Dialogues had earlier reported that one of the main issues with the MTP Act 1971 was that its terminology focused on only married women. On the other hand, MTP Act, 2021 extended the deadline for abortion. Further, it made way for a provision of making specific medical boards in every state to look into matters of extended termination period in special cases such as in case of a foetal anomality or in cases of vulnerable women who have conceived.

While addressing the new MTP Rules, Dr Niranjan Chavan of the Mumbai Obstetric & Gynaecological said, "The new amendments have made life easier for women. It is liberal."

Although the revised act allowed the minors and sexual assault victims to terminate their pregnancies, it does not give clarity if women other than widows or divorcees and are not sexual assault/rape victims/minors/women with disabilities can also terminate their pregnancies up to 24 weeks.

Referring to this confusion, Dr. Datar told TOI, "On the one hand, it is said spousal consent is not required, but section 3B, which defines the categories of women who can get termination up to 24 weeks, requires a 'marital status'."

The doctor argued that as per the revised rules, now the married women cannot seek termination between 20 and 24 weeks as it is allowed only for those whose marital status change during the pregnancy. "So only a woman who is widowed or divorced can seek termination," he said.

"Single women are excluded as a group. What happens to cases where the status of divorce is unclear since there can be several stages such as legal separation, estrangement, filing of divorce, commencement of divorce proceedings and divorce being granted. According to different personal laws, more ambiguities in divorce are also created," Dr Datar told PTI.

As per Dr. Datar, these confusions should be cleared out immediately so that they do not emerge as a problem later. "The definition of 'termination of pregnancy' is itself a problem. Is it about terminating the woman's state of being pregnant or terminate the existence of the fetus? There should be no confusion," he said.

He also referred to several High Court and Apex Court judgments that had allowed medical termination of pregnancy beyond 24 weeks for the minor rape survivors, and pointed out that the amended rules have disallowed it for minors.

The new law allows medical termination of pregnancy till 24 weeks in the case of minor girls who are rape victims, but various high courts and even the Supreme Court have taken a more sympathetic view and allowed termination of pregnancy for minors up to 32 weeks, Datar pointed out.

The amendment has created a new institution called the medical board which is supposed to examine a woman and form an opinion on the desirability of abortion when there is a substantial foetal anomaly in advanced pregnancy.