On reproductive rights, India’s MTP and Surrogacy Acts don’t go far enough

News: Recently, reproductive rights were overturned in the US through the Roe V. Wade judgment.  Bodily autonomy and reproductive rights must be viewed from legal, medical, and social lenses.   

What are the challenges associated with MTP Act?

The Medical Termination of Pregnancy (Amendment) Act 2021: The act is in reality far from ideal.  

(1) It has been criticised for not taking a rights-based approach. It doesn’t give the pregnant person complete autonomy in ending the pregnancy. For example, a pregnancy can be terminated on certain conditions which include:- (a) Grave danger to the physical/mental health of the pregnant woman; (b) foetal abnormalities; (c) rape/coercion; and (d) contraceptive failure. 

(2) A woman’s right to choose to end the pregnancy even in the first few weeks is still not recognised in India. 

(3) Women have to undergo various systemic barriers. In fact, the final decision regarding termination of pregnancy is not decided by the pregnant person, but it is decided by one/two registered medical practitioners (RMP) or a medical board depending on the gestational period. 

(4) It uses the word “woman”, thereby leaving out pregnant transgender and non-binary persons who are biologically capable of bearing children.  

(5) Other significant issues are the lack of access to RMPs, affordability, and social stigma. These issues lead to unsafe abortions.  

(6) Further, abortion facilities are not provided in all public health centres, especially in rural India. And, abortion facilities in private medical centres are expensive. It is available only for those who have the resources like those belonging to the high class and persons having caste privilege. Therefore, most unmarried women end up resorting to unsafe abortions in illegal clinics or at home. 

(a) In India, the skewed sex ratio is proof that unsafe abortions and female foeticide are rampant. 

(b) According to the NFHS 2019-21, 27% of the abortions were carried out by the woman herself at home.  

(c) According to the UNs Population Fund (UNFPA) State of the World Population Report 2022, around 8 women die each day in India due to unsafe abortions. About 67% of the abortions were classified as unsafe between 2007-2011. 

About the Surrogacy (Regulation) Act 2021 

(1) The Act has been alleged to be exclusionary in nature, disregards privacy, and also exploits women’s reproductive labour.  

(2) The act has been alleged to be disregarding privacy. It requires the intending couple to declare their infertility and reveals the identity of the surrogate, both of which violate the right to privacy and the landmark Puttaswamy judgment. 

(3) It strips the reproductive autonomy of LGBTQ+ persons and single, divorced, and widowed intending parents. Only a heterosexual married couple (with certain preconditions) can be the intending parents. Therefore, It can also be seen as a violation to the fundamental right to equality. 

(4) It allows only altruistic surrogacy, denying women compensation for their reproductive labour. It is also seen as a direct manifestation of the patriarchal mindset. 

What should be done?

Experts believe that there should be regulations instead of a complete ban on commercial surrogacy.  

The situation in India is far from perfect. Therefore, the gaps in both the MTP Act 2021 and the Surrogacy Act need to be fixed.  

The government should strive for inclusivity, complete bodily autonomy, and reproductive equity.  

Source: The post is based on the article “On reproductive rights, India’s MTP and Surrogacy Acts don’t go far enough” published in the “Indian Express” on 1st July 2022.