Open Access Research Article
Abortion Law in India - BY Sejal Anil Jethva
Published Paper
Article Details
ABORTION LAW IN INDIA
AUTHORED BY –
SEJAL ANIL JETHVA
INTRODUCTION
“There is no freedom, no equality, no full
human dignity, and personhood possible for women until they assert and demand
control over their bodies and reproductive process…The right to have an
abortion is a matter of individual conscience and conscious choice for the
women concerned.”[1]
Induced abortions have generated a lot of
discussion and controversy throughout history. A person's value system is
closely related to their personal position on the difficult ethical, moral, and
legal issues. The morality of induced abortion and the ethical bounds of the
executive branch of government can both be considered when describing a
person's attitude on abortion.
The right of a woman to have an abortion is
protected by her individual rights, including her right to life, liberty, and
the pursuit of happiness. The sexual and reproductive health of a woman
influences her reproductive decisions. Internationally, it is acknowledged that
improving women's human rights and fostering development are mutually exclusive
goals.
ABORTION AND
THE CONSTITUTION OF INDIA
While establishing the democratic setup, our
Constitution framers were vigilant and inculcated the sprit that people must be
protected against misuse of power by the government and its officials. They,
therefore, provided for the fundamental rights in part-III of the Constitution.
The article 21 of Indian constitution provide right to life which includes
within its ambit the right to privacy. Right to life and personal liberty is
the most sacrosanct, precious, inalienable and fundamental of all the
fundamental rights of citizens. This guarantee imposes a restraint on the
government and it is part of the cultural and social consciousness of the
community in India. In this context, every woman owe an individual right, right
to her life, to her liberty, and to the pursuit of her happiness, that
sanctions her right to have an abortion. The women have reproductive features
and have right to decide about her sexual health and shape her reproductive
choices. To ensure availability of human rights to women and to advance the
development, the international community acknowledged reproductive rights of
the woman. In order to follow the international mandate, governments from all
over the world have recognized and accredited reproductive rights to women to
an unprecedented heights. To fulfill its commitment government enacted formal
laws and policies that are prime indicators in promoting reproductive rights.
Thus it can be reiterated that all over the World each and every woman has an
unconditional right to have control over her own body.[2]
MEDICAL TERMINATION OF PREGNANCY ACT, 1971
After the Roe v. Wade[3]
case, European and American countries started to legalise abortion. During the
last thirty years, since 1970s many countries have liberalized their abortion
laws. Roe case has been subsequently modified by the US Supreme Court in
Planned Parenthood v. Case [4]
where the legality of the abortion law is now linked to the viability of
the foetus rather than the rigid third trimester test laid down in Roe case.
In
India, the Central Family Planning Board on August 25, 1964 recommended the
Ministry of Health to constitute a committee to study the need of legislation
on abortion. The recommendation was adopted in the later half of 1964
constituting a committee which consisted of members from various Indian public
and private agencies. The committee – called Shantilal Shah Committee. After
analysing a vast expanse of statistical data available at that time, this
committee issued its report on December 30, 1966.[5]
On the basis of this report, the government passed the Medical Termination of
Pregnancy Act, 1971 (MTP Act of 1971) and liberalised abortion laws in India.
The committee acknowledged that there did not
exist and would not exist in the predictable future either the doctors or the
medical facilities to support an extensive abortion programme. It also
specifically denied that its intention was to force down for the legislation of
abortion only for the population control in India. The committee further
pointed out: [6]
It is
felt, that legalising abortions with a view of obtaining demographic results is
unpractical and may even defeat the constructive and positive practice of
family planning through contraception. It is noteworthy that the MTP Act was implemented
in the month of April, 1972 and again revised in the year of 1975 to eliminate
time consuming procedures for the approval of the place and to make services
more readily available. This Act was amended in the year 2002 and again in
2005. The Preamble of the Act states, “An Act to provide for the termination of
certain pregnancies by registered medical practitioners and for matters
connected therewith or incidental thereto”.[7]
The Act, consisting of just 8 sections, deals
with the various aspects like the time, place and circumstances in which a
pregnancy may be terminated by a registered medical practitioner. It legalizes
abortion in case where there is a failure of contraceptives or where the
pregnancy will adversely affect the physical or mental termination of
pregnancy, consent of the pregnant woman is a must unless she is a minor or
lunatic when her guardian’s consent is required.[8]
The Act permits abortion only in certain
circumstances. It Act allows medical termination of pregnancy up to Twenty weeks’
gestation. Though the Act talks about the written consent of the pregnant
mother before the technique is administered to her, the law fails to recognise
the social reality that a woman cannot make a free choice. Thus, it is evident
that the Act fails to achieve a equilibrium between the right of the unborn to
be born and the right of the woman, who bears, gives birth and rears the child,
to decide whether she wants the child or wants to abort the foetus.
In Nikhil D. Dattar v. Union of India,[9]
section 3 and 5 of MTP Act was challenged on the ground of non-inclusion of
eventualities vires of the Act. In this case the foetus was diagnosed for
complete heart block thus the Petitioner, in her twenty sixth week of
pregnancy, had sought termination of pregnancy. The petitioner contended that
section 5(1) of the MTP Act should be read down to include the eventualities in
section 3 and consequently, a direction should be issued to the respondents to
allow the petitioner to terminate the pregnancy. The court held that the courts
are not empowered to legislate upon a statute. Sections 3 and 5 provide for
right to terminate pregnancy only under the specified circumstances. And the
remedy under section 5 can only be available when the non-termination of
pregnancy would be dangerous to the life of pregnant woman. While dismissing
the petition the court further held that since twenty six weeks of pregnancy
has already passed the court could not pass any direction for exercise of right
under section 3. This case further reiterated that the physical and mental
trauma which may be experienced by women in such circumstances. It also
highlighted the ethical issue faced by the doctors in similar situations.[10]
Section 3 of the said Act, says that
pregnancy can be terminated:
(1) As
a health measure when there is danger to the life or risk to physical or mental
health of the women
(2) On humanitarian grounds - such as when
pregnancy arises from a sex crime like rape or intercourse with a lunatic
woman, etc.
(3)
Eugenic grounds - where there is a substantial risk that the child, if born,
would suffer from deformities and diseases.
It is
submitted that a decision as to abortion may be entirely left with woman
provided she is sane and attained majority. Only in cases where an abortion may
affect her life, her freedom may be curtailed. All other restrictions on the
right to abortion are unwelcome. True, a woman's decision as to abortion may
depend upon her physical and mental health or the potential threat to the
health of the child. Apart from these reasons, there are also various important
factors. She or the family may not be financially sound to welcome an addition.
It may be a time when she wants to change her profession, which requires free
time and hard work. Her relationship with the husband may virtually be on the
verge of collapse and she may prefer not to have a child from him, for it may
possibly affect a future marriage. All these factors are quite relevant and the
Indian statute on abortion does not pay any respect to them. The law thus is
unreasonable and could well be found to be violative of the principles of
equality provided under Article 14 of the Constitution. Is it desirable to pay
compensation to woman for all her physical and mental inconveniences and liabilities,
which arises in that context? Finally, it may be noted that the M.T.P. Act does
not protect the unborn child. Any indirect protection it gains under the Act is
only a by-product resulting from the protection of the woman.[11]
Under Section 4 of the Act detailed
description of the place of termination of the pregnancy is stated like a
hospital. It should be hygienic place to perform abortion, where an operation
table is provided with proper instruments needed to perform it and drugs and
other necessary items for it in the place to be kept. A woman has complete
right over her body and she has the right to abortion too and can decide not to
do it. Most of the countries where abortion is legalised death rate of women is
below 1 for 100,000 procedures. Abortion is quite a safe method if it is done
by skilled doctor and who has proper facility.[12]
CASE LAWS
D. Rajeswari vs State of Tamil Nadu And
Others[13]
The
case, is of an unmarried girl of 18 years who is praying for issue of a
direction to terminate the pregnancy of the child in her womb, on the ground
that bearing the unwanted pregnancy of the child of three months made her to
become mentally ill and the continuance of pregnancy has caused great anguish
in her mind, which would result in a grave injury to her mental health, since
the pregnancy was caused by rape. The Court granted the permission to terminate
the pregnancy.
Dr.
Nisha Malviya and Anr. Vs. State of M.P[14]
The
accused had committed rape on minor girl aged about 12 years and made her
pregnant. The allegations are that two other co-accused took this girl, and
they terminated her pregnancy. So, the charge on them is firstly causing
miscarriage without consent of girl. The Court held all the three accused
guilty of termination of pregnancy which was not consented by the mother or the
girl.
Murari
Mohan Koley vs The State 2003[15]
In
this case, a woman wanted to have abortion on the ground that she has a 6
months old daughter. She approached the petitioner for an abortion. And the
petitioner agreed to it for a consideration. But somehow the condition of the
woman worsened in the hospital and she was shifted to another hospital. But it
resulted in her death. The abortion was not done.
Shri Bhagwan Katariya And Others vs State of
M.P[16]
Abortion without mother’s consent 2000.The
woman was married to Navneet. Applicants are younger brothers of said Navneet
while Bhagwan Katariya was the father of said Navneet. After the complainant
conceived pregnancy, the husband and the other family members took an exception
to it, took her for abortion and without her consent got the abortion done. The
Court opined that if we refer Section 3 of the Medical Termination of Pregnancy
Act, 1971, a doctor is entitled to terminate the pregnancy under particular
circumstances and if the pregnancy was terminated in accordance with the
provisions of law, it must be presumed that without the consent of the woman it
could not be done. Present is a case where a permanent scar has been carved on
the heart and soul of the woman by depriving her of her child. And the Doctor
will be liable.
SINGLE, UNMARRIED WOMEN HAVE THE RIGHT TO SAFE AND LEGAL ABORTION
In a significant ruling on reproductive rights, the
Supreme Court on 29th September 2022 extended the right to safe and
legal abortion up to 24 weeks of pregnancy to unmarried and single women,
saying it is the “right of every woman to make reproductive choices without
undue interference from the State”. Now, all women in the country, regardless
of marital status, can undergo an abortion up to 24 weeks into pregnancy.
The bench
of Justices D Y Chandrachud, A S Bopanna and J B Pardiwala, ruling on a plea by
an unmarried pregnant woman who had been in a consensual relationship but was
denied the right to abortion because she was past the 20-week limit, made it
clear that provisions of the Medical Termination of Pregnancy Act cannot be
interpreted to deny that right to single women beyond 20 weeks of pregnancy.
If the Act and Rules, the bench said, were “to be
interpreted such that its benefits extended only to married women, it would
perpetuate the stereotype and socially held notion that only married women
indulge in sexual intercourse, and that consequently, the benefits in law ought
to extend only to them”.
“This
artificial distinction between married and single women is not constitutionally
sustainable. The benefits in law extend equally to both single and married
women,” it said.
Article 21
of the Constitution “recognises and protects the right of a woman to undergo
termination of pregnancy if her mental or physical health is at stake.
Importantly, it is the woman alone who has the right over her body and is the
ultimate decision-maker on the question of whether she wants to undergo an
abortion… Depriving women of autonomy not only over their bodies but also over
their lives would be an affront to their dignity,” it said.[17]
SOCIO- ETHICAL ISSUES
Abortion touches
social, religious, economic and political aspects. Its impact on the society
seen can be looked at both in a positive and a negative manner. In the earlier
years of forming abortion policy, the Western civilisations disapproved the
practice. By the nineteenth century many nations passed laws banning abortion.
It wasn’t until late in the twentieth century when the women rights were given
importance and after many awareness movements that some nations, including the
US, began to legalise abortion.
In India, which is a
country with immense social baggage supplemented by societal evils
such as illiteracy
and poverty, the impact of the MTP Act should be judged in the context of
changing social
circumstances, values and attitudes. The social implications of MTP Act, in its
very raw form can be segregated into abortion in unmarried girls versus
abortion in married woman. These two have completely different connotations. In
MTP Act married woman is not considered as a social stigma, whereas unmarried
girls are not easily accepted. The fact that it is unaccepted creates
hindrances in safe abortions, sometimes defeating the very purpose of abortion i.e.,
health of the woman undergoing abortion. In villages where there is in
access to medical facilities, girls are taken to other distant places for MTP
Act in the name of preserving the girl's future and keeping image in the
society intact. The legalising of MTP Act has obviously had a positive stimulus
upon the omen in need of MTP and has shown reduced incidence of suicide and
betterment of health and safety. The acceptance of the family planning methods
has also witnessed wider acceptance.[18]
The real problem lies
in the implementation of the laws and existing framework. It is the
responsibility of the
government to ensure that MTP Act is done by qualified surgeons in
registered clinics or
hospitals. The concerned authorities need to deal with another major
challenge and that is
of the genuineness of reasons behind requesting termination of pregnancy.
There have been cases
reported where in MTP Act is performed flimsy ground such as
examinations, family
weddings, tours etc. such abortions are conducted by the medical
practioners for
financial gains and go unchecked on most occasions due to fabricated reports.
Abortions have both
long term and short term consequences. It is also unfortunate that
abortion often is
used as an alternative to regular methods of family planning.[19]Such
issues can only be addressed by government initiatives and awareness programs.
It is the social
responsibility of
doctors to counsel all patients coming for termination of pregnancy about the
use of some contraception. It should be emphasised that contraception use is
much safer than termination of pregnancy. To mitigate the ill effects on
society, the balancing of the negative and positive aspects of this social
legislation needs to be taken up.
The ethical debate
about the legal stance of prevention of unwanted pregnancies has been
continuing for many
years throughout the world, and this established the idea of enacting a
legislation that
would balance the ethical and legal perspective. In India, in spite of
legislative
and judicial control,
ethical controversies surrounding medical termination of pregnancy still
continues. Though
many people believe that medical termination of pregnancy is immoral but
today it is a right
that cannot be taken away from the women.
In relation to social
stigma a Supreme Court bench comprising Thakker and D.K. Jain JJ held in Suman
Kapur v. Sudhir Kapur[20]
that an abortion by a woman without her husband’s
consent would amount
to mental cruelty and a ground for divorce. To quote the bench:[21]
Mental cruelty is a
state of mind. The feeling of deep anguish, disappointment, frustration in one
spouse caused by the conduct of the other for a long time may lead to mental
cruelty. A sustained course of abusive and humiliating treatment calculated to
torture, discommode or render life miserable for the spouse.
In the light of such
judgements, it can be said that Constitution does not guarantee right to
abortion to the women
in India and the MTP Act, 1971 itself limited sphere of this right and
provides for the
‘termination of pregnancy’ in certain cases only.
In a expansion that
may have far-reaching consequences, the Supreme Court of India have
decided that severe
foetal abnormality can be a valid ground for the medical termination of
pregnancy, even if
the foetus is more than twenty weeks old. The Supreme Court granted a
twenty four week
pregnant woman and rape survivor the permission to go for an abortion in Ms.X
v. Union of India.[22]
Here it is pertinent to specify that the International Federation of
Gynecology and
Obstetrics (FIGO) recognises an ethical obligation to allow women to terminate
a severely malformed fetus.[23]FIGO
emphasises that in such cases, “[t]he decision to terminate a pregnancy should
rest primarily with the parents.”[24]
It is evident that many countries permit the legal abortion procedure
throughout pregnancy in cases of fetal impairment to protect a pregnant woman’s
health.
PSYCHOSOCIAL ASPECTS
The famous birth
control activist Margeret Sanger once said that “No woman can call
herself free until
she can choose consciously whether she will or will not be a mother”. Women
have however now come a long way since those days where in abortion was illegal
and medical termination of pregnancy was socially unacceptable. The crucial
consequence that followed this attitude towards abortion was the psychological
implications upon the pregnant woman and her family. These persons were faced
with distress of an uncertain future. In today’s time however, it is legally
available in most countries of the world and due to this the physiological
trauma and social isolation have reduced. Psychologically it gives them a sense
of control upon one’s own future and the power to make choices. However, in the
favorable social circumstances following legalised abortion, the patient’s
relief of getting rid of the unwanted pregnancy out shadows and feeling of
guilt that either used to accompany an illegal and socially unsanctioned
procedure. In a minority of patients, one sees psychological disturbances in
the form of major psychoses or depression.[25]
It was not yet
recognised as a justification for abortion that the women’s health would be
endangered if the
pregnancy is carried to the full term. That step has not been taken but
perceptibly it
constitutes a greater inroad in the sanctity of life of the fetus than a
provision
intended to guard
against danger to the women’s life. But each person has a right to bodily
sovereignty and human
rights and various international instruments protect such rights. Thus it
becomes important to secure the right to abortion to every woman.[26]
Those who are pro-life
are against abortion and believe that since life begins at conception, abortion
is parallel to murder as it is the act of taking human life. Abortion is in
direct disobedience of the idea of the sanctity of human life and that no
civilized society permits any human to harm or take the life of another human.
Their answer to an unwanted child is adoption and they believe that with
millions of child less parents wanting to adopt a child. In the instance of
rape and incest, etc., they believe that abortion punishes the unborn
child who committed no crime; instead.
Their basic premise
is that for women who demand complete control of their body, control should
include preventing the risk of unwanted pregnancy through the responsible use
of
contraception or, if
that is not possible, through self-restraint. In short, it can be said that
abortion should not be used as another form of contraception.[27]
On the other hand, those who are prochoice support abortion and believe that
since the fetus cannot be regarded as a different entity in the first trimester
as a fetus cannot exist independent of the mother. This is so because it is
attached to the mother by the placenta and umbilical cord and its health is
dependent on her health, and cannot be regarded as a separate entity as it
cannot exist outside her womb.[28]
Another contention
that they out forwards is that the concept of human life is totally different
from the concept of
personhood. At the time of conception human life occurs, but fertilized eggs
that used for in vitro fertilisation, in many times, are not implanted and are
routinely thrown away and it is not considered as murder, then how would
abortion be considered as murder? They also believe that the concept of
adoption is not an alternative remedy to abortion. Even in the case of rape or
incest, etc., often a woman is unaware that she is pregnant or is too
afraid to talk about, thus the contraceptive pills are ineffective in these
situations. This group of persons believes that although abortion should not be
used as a form of contraception but even with responsible contraceptive use
pregnancy can take place.[29]Another
aspect that they rest their case on is that teenagers who become mothers have
harsh prospects for the future such as leaving the school, health issues,
inadequate prenatal care combined with social stigma. Thus they believe it to
be against the very fundamental concept of civil rights and right to make
choices.
CONCLUSION
Before drawing any
conclusions, it is important to understand the basic purpose behind abortion
law. It can be concluded that the main goal is to provide quality abortion care
that meets the needs of all women by improving aspects such as easy access and
affordability of safe abortion services. I can do it. This can be done by
mobilizing human, financial and material resources to provide care and safety
in abortion procedures and by increasing the number of trained people and
well-equipped abortion centers. It also integrated abortion services into
primary and community health centers, increased investment in public
facilities, expanded the abortion provider base by training paramedics in early
pregnancy abortion, and combined it with the latest technology. Increase
efficiency and reach by simplifying enrollment procedures and policies. In
India, the legalization of abortion through her MTP law enacted in 1971 has not
yielded the expected results. Despite modest guidelines, the majority of women
still rely on unsafe abortions. This contributes significantly to the burden of
maternal morbidity and mortality. The MTP Act now clarifies Section 3. In this
section, dismissal for rape or contraceptive failure is permitted because the
distress they cause constitutes"serious injury to physical or mental
health." The MTP method is discouraged because the diagnosis of fetal
dysfunction is likely to result in distress that constitutes a serious mental
health violation, and because specific fetal abnormalities are not identified
within a fixed 20 weeks of gestation. It should be recognized that no
exceptions must exist during pregnancy. Pregnancy can be determined. The great
Tamil saint Thiruvalluvar said, "To touch children is a bodily pleasure,
and the ear's pleasure is to hear their words." It is a mother's duty to
give her best to her children. However, they may also engage in activities that
harm their unborn child. This may be due to ignorance, negligence, or sometimes
willful misconduct. Abortion is associated with various social, ethical and
economic issues. From this we can conclude that the mother's right to abortion
is limited. Ensuring the mother's independence and liberty and the life of the
unborn child rests on the shoulders of Law No. The medical community and
society need to offer love and support to women with unplanned pregnancies and
help them find compassionate alternatives to abortion.
[1] BettyFriedan, Abortion: A Woman’s
Civil Right, 39 (reprinted in Linda Greenhouse and Reva B. Siegel, 1st edn
1999).
[3] 410 U.S. 113 (1973).
[4] 505 U.S. 833 (1992).
[5] Government of India, Report of the Committee to Study
the Question of Legalisation of Abortion 36 (Ministry of Health and Family,
1966)
[6] Ibid.
[7] Medical Termination of Pregnancy
Act, 1972 (Act of 1971), Preamble.
[8] Medical Termination of Pregnancy
Act, 1972 (Act of 1971), s. 3.
[9]S.L.P. (Civ.) No. XXXX of 2008 (Supreme Court of
India), available at: http://www.hrln.org/hrln/images/stories/pdf/xandy-petition-8-3-14.pdf
[10]
https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/Datar_v_India.pdf
[13] 1996 CriLJ
3795
[16] 2001 (4) MPHT 20 CG
[17] https://indianexpress.com/article/india/all-women-entitled-to-safe-and-legal-abortion-supreme-court-8179879/
[18] Government of India, Report of Ministry of Health and
Family Welfare on Rural Health Care System in India
(MHFW, 2005).
[19] Ministry of Statistics and
Programme Implementation, NSSO 60th Round, Report No. 507 on Morbidity, Health
Care and the Condition of the Aged, (National Sample Survey Organisation,
2004).
[21] Ibid.
[22]
http://supremecourtofindia.nic.in/FileServer/2016-07-25_1469453114.pdf
[23] http://www.figo.org/docs/
Ethics%20Guidelines%20%20English%20version%202006%20-2009.pdf
[24] Id. at 75.
[25] Siddhivinayak Hirve, “Abortion Policy In India:
Lacunae and Future Challenge” Abortion Assessment Project 2004, India Centre
for Enquiry into Health and Allied Themes, Bombay (2004).
[26] Ibid.
[27] Abortion Arguments from Pro-Life
and Pro-Choice Sides & Main Points of Debate, available at: http://womensissues.about.com/od/reproductiverights/a/AbortionArgumen.htm
[28] Abortion Arguments: 10 Arguments For Abortion, 10
Arguments Against Abortion, available at:
http://womensissues.about.com/od/reproductiverights/a/AbortionArgumen.htm
[29] Ibid.
Article Information
Abortion Law in India - BY Sejal Anil Jethva
Authors: Sejal Anil Jethva
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/10/31
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.