Abortion Laws

Author: Samay Jain, Institute of Law, Nirma University

Introduction

Abortion is a method of terminating a pregnancy. The embryo or the unborn child, as well as the placenta, are removed from the uterus using medication or surgery. A licensed health care practitioner operates. The choice to abort a fetus is a very sensitive one.

In 1920, the Union of Soviet Socialist Republics (USSR) became the first country to allow abortion for a variety of legal reasons. Selective abortions were used in Nazi Germany, as evidenced by the 1933 law known as the “Law for the Prevention of Progeny with Hereditary Diseases,” which was used to kill differently-abled infants. In 1948, Japan and numerous European nations closely followed them, as did several other countries in the 1950s. In 1967, the United Kingdom changed its mind and began to permit abortions. Abortion rights in the United States have a tumultuous history. In the 1950s, the medical establishment in the United States began to discuss “planned parenthood,” a euphemism for abortions.

This paved the way for the American Permitted Institute to argue in 1959 that abortions should be legal in all situations other than rape. Mississippi, California, and Colorado were among the first states to make abortions legal in the 1960s. In the 1970s, meanwhile, only 16 of the 50 states backed abortion rights. After the Roe v Wade ruling by the US Supreme Court in 1973, abortions were authorized nationwide. This, nevertheless, sparked a sociopolitical battle in America between “pro-life” groups and the abortion lobby.

The legal system in place for Abortions in India

Section 312 of the Indian Penal Code (IPC) prohibits an induced act of miscarriage due to its colonial history and Great Britain’s statute prohibiting abortions between 1869 and 1967. However, things altered dramatically after independence. To control its growing population, India implemented a family planning scheme in 1952. The Central Planning Commission created a committee in 1964, led by Maharashtra’s Health Minister, Shri Shantilal Shah, to examine any need for revisions towards the IPC and other essential laws to address the pregnancies that were terminated for medical reasons. In 1966, the committee issued a report recommending that Section 312 of the IPC be repealed and that a separate law be enacted to deal with the termination of pregnancies. They used modifications in the UK’s abortion regulations to argue that India’s laws on abortion should be modified as well. As a result, the Medical Termination of Pregnancy (MTP) Act, 1971, was enacted as an exclusive abortion-related law.

Except for Jammu & Kashmir, the MTP Act is in effect across the country. It adheres to strict standards to enable abortions. For example, only licensed healthcare professionals who have been certified within section 2 (h) of the Indian Medical Council Act, 1956, can perform induced miscarriage. It only enables gynaecologists or obstetric experts to perform abortions. Pregnancies can be terminated during the first three months of pregnancy with the consent of only one authorized medical professional. However, if the pregnancy has lasted more than five months, the permission of at least two medical professionals is required. If the 5-month period has elapsed, the abortion is permitted on the specific conditions under section 3 of the MTP Act: offspring created as a result of sexual assault, the kid ailing from any impairment identified before conception, the mother’s life is on the line, and so on. The MTP Act also permits induced miscarriage of pregnancies in minors under the age of 18 with the agreement of their parent(s) or legally appointed guardian(s). Induced miscarriage requires the approval of the parent(s) or legally appointed guardian(s) in the event of people of unsound mind. 

Awareness among Indians regarding the Abortion rules and regulations 

The Indian Institute of Population Studies (IIPS), a demographic research body, conducted a study in seven south Indian states and an equal number of north Indian states to determine the knowledge and awareness of abortion methods and legislation among young people aged 18 to 24.

In comparison to the national average of about 25% men and 30% women, they discovered that states in southern India were more knowledgeable when it came to information of medical ways to carry out an induced miscarriage, with about 1/3rd of men and half of the women surveyed being aware. It was also shown that more than 75% of men and women polled were aware that trying to find the sex of the child before birth and abortion is illegal. This appears to indicate that the Indian government’s efforts to combat gender detection tests and the resulting forced abortions have been somewhat successful. Approximately two-thirds of men and three-quarters of women questioned were aware of India’s legal abortion policy, which allows women to abort a child after 20 weeks of pregnancy. 

Nonetheless, below 40% of men and around 45% of women in the poll were aware that women who haven’t married yet might legally choose to have an assisted abortion. Only a quarter of the men and women polled were aware that married women might legally choose to have an assisted abortion. Engaged youngsters and those living in cities were also found to be more knowledgeable of abortion rights and techniques compared to their bachelor and countryside peers. Similarly, young people in south India and Maharashtra were better aware of the sexual rights, abortion rights, and procedures, as well as Sexually Transmitted Diseases (STDs) and prevention measures.

Issues with India’s Abortion rules and procedures

• Expensive medicines – A baby can be aborted in one of two ways: surgically or with the aid of medications. For the termination of an unborn fetus, these medications are taken orally or through the vaginal canal. Due to cost and other health-related concerns, many women choose oral medications prescribed by specialists. These doctors frequently charge excessive rates for birth control pills, looking to take advantage of a female’s naivety and vulnerability. In a quest to assure birth control, the MTP Act grants doctors broad rights, which are regularly abused by doctors to line their wallets.

• Abuse of PCPNDT Act – The PCPNDT Act makes it illegal to terminate a pregnancy based on a woman’s sex. This was owing to the misuse of sonography and other contemporary technologies to identify the gender of an unborn child and, in the event of a female child, to terminate it early. Recently, law enforcement authorities have erroneously exploited the PCPNDT Act to criminalize all abortions, believing that by doing so, they will be able to preserve female newborns who are routinely killed at birth. Doctors are also hesitant to perform abortions because of the risk of being punished under the PCPNDT Act, which imposes heavy penalties on violators.

• Inadequacy of sufficient doctors – The ratio of certified and qualified medical practitioners in India is insufficient to meet the country’s impending abortion needs. As a result, pregnant women are opting for risky abortion procedures, which result in around 4000 fatalities each year. AYUSH practitioners and auxiliary nurses can be educated to advise pregnant women seeking abortions on oral and vaginal medications. This would help reduce the number of women who die as a result of improper abortion procedures while also allowing many more women to get adequate medical care. This measure, as proposed in the 2014 MTP amendment bill, would have been nothing short of revolutionary.

• Conflict with the disability rights movement – MTP permits abortion up to 20 weeks after conception. It’s worth noting that the MTP Act was introduced in the 1970s. Nowadays, technology has progressed tremendously. Not only may abnormalities in expectant mothers be detected midway in the trimester but the abortion procedure seems to have become somewhat more efficient and safer, even late in the pregnancy However, because the MTP Act does not take these technical developments into account, the legislation’s execution seems to have been shaky at best.

• The legal system is clogged and sluggish– There have been times when the judiciary has been deemed lacking in its reaction to abortion petitions in the past. For instance, in one case, an HIV-positive woman had to give birth to a baby because the judiciary took too long to process her appeal. As a consequence, the 20 weeks were missed, and forced miscarriage put both mom and baby in danger. As a result, the legal system needs to get its act right. In the case of abortion petitions, the whole hearing process should be expedited to accommodate the 20 weeks required for a safe and legally permitted abortion in India.

Conclusion 

In essence, while India’s abortion laws are intended to assist unshackle its women, their implementation and fundamental aspects are riddled with errors. It is necessary to amend the MTP Act to bring it up to speed with contemporary technological advancements.  There seems to be a need to modify the POCSO Act to remove the conflict with the MTP Act. The medico-legal infrastructure in India also needs to be improved. As a result, the government and civil society must work together to strengthen the theoretical and implementational aspects of India’s abortion laws and policies.