Abortion Laws in India

ABORTION LAWS IN INDIA: AN OVERVIEW

Author: Aanchal Golecha, SLCU

Introduction

“The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself”

• Ruth Bader Ginsburg

The Oxford Dictionary defines abortion as “the deliberate ending of a pregnancy at an early stage”.[1]

The practice of abortion and medical termination of pregnancy is highly condemned in the ancient scriptures like the Vedas, Upanishads and the Puranas. As these scriptures are considered as the major sources of our law and reason for our existence, abortion was considered to be a crime for a long time in Indian society. However, the legislature of the country realized that with changing times, the laws also should be amended and making abortion illegal compromising the health and well-being of the women would be a grave violation of human rights.

The Medical Termination of Pregnancy Act is the sole legal statute governing abortions in India. The Act does not use the word “abortion” and replaces the word with “medical termination of pregnancy” to reduce opposition from groups of the society who are against liberalization of abortion law.

However, India still stands among the 14 countries where abortion is conducted on a broad scale of socio-economic circumstances rather than abortion on request.[2]

International Conventions relating to Abortion

According to the United Nations Human Rights Committee, every woman should be given the right to abortion and maternal care. It also states that health care services should be provided to all the women and girl who want to undergo abortion as it comes under the ambit of basic rights like right to life, right to privacy and right to health.

The World Health Organisation says that every individual should be given the right to attain the highest standard of sexual and reproductive health without any discrimination, coercion and violence.

The Committee on Elimination of All Forms of Discrimination against Women (CEDAW) says that forced abortion, denial, or delay of abortion and post-abortion care in a violation of a women’s sexual and reproductive rights and amounts to cruel and degrading treatment.

The International Covenant on Civil and Political Rights (ICCPR) does not prohibit any state from legalizing abortion nor does it recognize a right to abortion in any circumstances leading to the inherent tension between women’s autonomy and the life of the unborn child.

The Convention on Rights of Children (CRC) recognizes that adolescents should have access to safe abortion and post-abortion care.

Medical Termination of Pregnancy Act, 1971

Abortion can be spontaneous or induced. Spontaneous abortion is when a pregnancy comes to an end on its own, commonly known as “miscarriage”, while induced abortion is when a pregnancy is terminated by medical intervention. Section 312-316 of the Indian Penal Code, 1861 made induced abortions illegal and a criminal offence until the 1970s. However, the Medical Termination of Pregnancy Act, 1971 was enacted as a response to the alarming rates of illegal abortions in India. This Act was enacted based on the recommendations of the Shanti Lal Shah Committee which was constituted by the government in 1964 with the purpose of drafting an abortion law in India. [3]

The Act mainly deals with three aspects:

1. When pregnancies may be terminated
2. By whom can it be terminated
3. Where can they be terminated

According to Section 3(2) of the Act, a pregnancy may be terminated by a registered medical practitioner with the opinion of one medical practitioner when the length of the pregnancy is 12 weeks and can be terminated when the length of the pregnancy is within 20 weeks by taking the opinion of two medical practitioners. In a situation wherein the woman wanted to get an abortion after 20 weeks, the only option left with her is to file a petition in the High Court to seek a direction to terminate the pregnancy. The court may grant or deny the permission based on the opinion of a medical board constituted by it.[4]

The pregnancy can be terminated if the medical practitioner opines in good faith that continuance of the pregnancy would involve a risk of life or a grave injury to the physical or mental health of the pregnant woman or if there is a substantial risk that if the child were born, it would suffer from physical or mental abnormalities.[5]

Section 4 of the Act is regarding the place where the pregnancy can be terminated. It includes a hospital established or maintained by the government or a place approved by the government or a district-level committee for the purpose of the Act.

However, this Act has certain loopholes. The Act does not keep pace with the changing times and the advancement in medical science. The law states that abortion can only be provided up to 20 weeks, however, in most cases, foetal abnormalities can only be detected only after 20 weeks.[6] The provision which mandates the opinion of 2 medical practitioners for aborting the pregnancy after 12 weeks is a major concern in under-developed areas where medical facilities are not easily accessible. In addition to that, the Act takes into account only the unwarranted pregnancies of married women and the unintended pregnancies of unmarried women are left to the unguided opinion of medical practitioners.

In the case of Sheetal Shankar Salvi v. Union of India, a 28-year old woman prayed for termination of her 27-week old pregnancy as the foetus suffered from an abnormality. However, the medical board constituted for this case were of the opinion that the pregnancy does not involve any risk for the mother and there are chances that the baby maybe born alive and may survive for a variable period of time, hence, the court denied the permission without considering the mental distress caused to the mother. Cases like these highlight the anomalies of the Act and makes it necessary for establishing a uniform code of abortion laws.

Medical termination of Pregnancy Amendment Bill of 2014 and 2020

The Ministry of Health and Family Welfare released the MPT Amendment Bill in 2014 which increases the limit for legal abortions from 20 weeks to 24 weeks. The bill also includes unmarried women under the presumption of unintended pregnancies caused due to contraceptive failures. It expands the range of medical service providers and also gives a provision for the protection of the privacy rights of women while maintaining records. Although Bill proposed some positive changes, it fails in certain aspects. The bill does not recognize the plight of victims of sexual offences. [7]

The Ministry released a new draft amendment to the Medical Termination of Pregnancy Act, 1971 with the objective to make the abortion laws of India more progressive and liberal. The Bill allows abortion to be done on the advice of one doctor up to 20 weeks and two doctors for certain categories of women which includes vulnerable women like survivors of rape, women with disabilities, etc, between 20 and 24 weeks.[8] The new bill also provides for the establishment of state-level Medical Boards to decide if pregnancy can be terminated after 24 weeks in cases of substantial foetal abnormalities. The new Bill for the first time allows pregnant women to terminate a pregnancy if they wish to.

However, there are still certain aspects of the new Bill that needs a revisit. The Bill does not take into consideration the plight and experiences of marginalized people such as the migrant workers, trans and non-binary people, victims of domestic violence, etc.

Conclusion

The abortion laws in India need to be more liberalized and progressive. The law should be made favouring more to the women’s choice rather than establishing medical boards for determining whether the termination of pregnancy would result in the well-being of the women or not. The approach of abortions should be made “abortion on request” rather than allowing or denying a woman’s reproductive right by considering the socio-economic situations.

Time is of the essence in abortion cases. The Abortion laws in India give many procedures that has to be followed before a woman can terminate her pregnancy and the Act also makes it mandatory for the woman to approach the court if she wishes to terminate her pregnancy after 20 weeks. In most cases, these procedural delays extend the length of pregnancy making it unsafe to terminate.

It is essential that the legislators restore the autonomy of women so that they can be the one to decide on matters relating to her bodily integrity.

• AANCHAL K GOLECHA

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[1] Abortion, Oxford Dictionary

[2] Dignath Raj Sehgal, Abortion law in India- Right or restriction, ipleaders, (August 6, 2020)

[3] Gazala Parveen, Let abortion laws be woman-centric, ipleaders, (October 17, 2019)

[4] Ibid.

[5] Medical Termination of Pregnancy Act, 1971

[6] Neetu Chandra Sharma, Why India needs a new MTP Act, livemint, (September 1, 2019)

[7] Dignath Raj Sehgal, Abortion law in India- Right or restriction, ipleaders, (August 6, 2020)

[8] Ministry: Health and Family Welfare, The Medical Termination of pregnancy (Amendment) Bill, 2020