Open Access Research Article
ABORTION AND ITS DIMENSIONS
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Article Details
ABORTION AND ITS DIMENSIONS
AUTHORED BY - MANASVITA PRASAD AND PRIYANSHU RAJ,
{1st year, B.B.A.,LL.B (Hons.)
Student, Chanakya National Law University, Patna, Bihar}
Abstract –
Abortion
laws have long been a source of contention in India and in various other
countries, like the USA. This paper demonstrates how, in spite of America being
a developed nation, it has made abortion illegal (beyond 13 weeks) in the
recent Supreme Court ruling that overturned Roe v. Wade, and how India, which
is still a developing country, has made the abortion laws so feasible for its
citizens through the MTP Amendment Act of 2021. The purpose of this paper is to
investigate the legal framework around abortion in India, the difficulties
faced by women seeking abortions, and the impact of these difficulties on their
health and well-being. It discusses how there can never be a complete ban on
abortions; only safe and legal abortions can be banned, which can be very
detrimental to the health of women, and how putting a ban on abortion
incentivizes the patriarchal mindset of the society. It also emphasizes the
necessity of understanding the historical context as well as the present
problems that women seeking abortions face in various nations. The pro-life or
pro-choice divide between the people is also analyzed here, explaining how
pro-choice is better than the other one. Thus, this paper suggests and analyzes
the importance of abortion in safeguarding the health of women.
Keywords-
Ban, MTP Amendment Act 2021, the health of women, legal framework, global
scenario.
INTRODUCTION
Abortion has long been a contentious
social problem. Both parties of the argument have strong feelings and opinions
about the topic. On the one hand, proponents contend that women should have the
freedom to decide what happens to their bodies, while detractors contend that
abortion is immoral and breaches the sanctity of life. However, the conditions
in which the child was conceived, the capability of the women to raise the
child and all the other circumstances which would affect the mother or the
child in any way should also be kept in mind while deciding on this contentious
issue.
MEANING OF ABORTION
According to the Britannica
dictionary, Abortion can be defined as “the expulsion of
a foetus from the uterus before it has reached the stage of viability (in human beings,
usually about the 20th week of gestation). An abortion may occur spontaneously,
in which case it is also called a miscarriage, or it may be brought on purposefully, in which case it is
often called an induced abortion.”
In Suchita Srivastava v. Chandigarh
Administration (2009)[1] it
was held that the expulsion or evacuation of a viable human foetus from the
womb of a pregnant woman before it reaches full term
In Roe v. Wade (1973)[2],
the landmark United States Supreme Court case that established the
constitutional right to abortion, abortion was defined as "the termination
of a pregnancy by the expulsion or removal of a foetus or embryo from the
uterus."
In the Canadian case of R. v.
Morgentaler (1988)[3], the
Supreme Court of Canada defined abortion as "the interruption of a
pregnancy by the death of the foetus or removal of the foetus from the maternal
womb."
In the United Kingdom, the 1967
Abortion Act[4] defines
abortion as "the termination of a pregnancy by the removal or expulsion
from the uterus of a foetus, other than a miscarriage."
HISTORY OF ABORTION
There is a long history of women
assisting one another in having abortions. Women healers in Western Europe and
the United States performed abortions and instructed other women to do so
without legal restrictions until the late 1800s. Britain introduced the first
anti-abortion laws in 1803, which gradually became stronger over the century.
As individual states moved to criminalise abortion, the United States followed
suit. By 1880, most abortions in the United States were prohibited, save where
"necessary to save the woman's life." Nonetheless, the tradition of
women's right to abortion was well established in American society by that
time; abortionists continued to practise freely with public backing, and juries
refused to punish them. Women began to actively struggle for their rights in
the 1960s, motivated by the civil rights and anti-war movements. The rapidly
expanding women's movement made the hitherto taboo subject of abortion public.
Women burdened by years of secret stood up in front of strangers to discuss
their illegal abortions, erupting in rage, pain, and dread. Women marched,
rallied, and advocated for on-demand abortion. Civil rights organisations and
liberal clergy joined together to promote women. The famous Roe v. Wade
decision, issued on January 22, 1973, held that the "right of
privacy...founded in the Fourteenth Amendment's idea of personal liberty...is
broad enough to cover a woman's decision whether or not to terminate her
pregnancy." The Court ruled that until the conclusion of the first
trimester of a pregnancy, only a pregnant woman and her doctor have the legal
right to choose abortion. Only in the interest of the woman's safety can states
prohibit second-trimester abortions. Only during the third trimester can a
"viable foetus" (one that can survive outside the womb) be protected.
If a pregnant woman's life or health is in jeopardy, she cannot be coerced into
continuing the pregnancy.[5]
ABORTION IN INDIA
The problem of abortion in India
dates back to the late nineteenth century, when the British colonial
administration adopted the Indian Criminal Code in 1860, which criminalised
abortion in most instances. Even after India attained independence in 1947,
this law remained in effect. Yet, in 1971, the Indian government passed the
Medical Termination of Pregnancy Act, which legalised abortion in certain
circumstances.
Prior to the Medical Termination of
Pregnancy Act of 1971, providers of abortion services and women faced up to
three and seven years in prison, respectively, for providing and seeking an
abortion. The sole exception to this law was if there was a threat to the
pregnant woman's life. After the Medical Termination of Pregnancy Act of 1971,
abortion would be lawful if competent medical practitioners agreed. This
progressive measure was more of a means to regulate India's fast rising
population, particularly in the poorer socioeconomic areas of the country, than
it was a product of the women's movement in India. The legal limit of 20 weeks’
gestation had long been questioned. There was no justification for the 20-week
limit to remain after medical facilities became available in 1971, allowing
pregnancies to be aborted at 20 weeks. A revised MTP Act took effect in 2021,
allowing abortion for up to 24 weeks of pregnancy under certain conditions.
Victims of sexual assault, juveniles, widows or divorcees, women with
disabilities, mentally sick women, foetuses with physical or mental
abnormalities, and women in emergencies are all exempt from the new
restriction.[6]
The new Act extended the limit for
victims of sexual assault, minors, widows or divorcees, women with
disabilities, mentally ill women, foetuses with physical or mental
abnormalities, and women in emergencies.
CULTURAL CONTEXT
Abortion in India is affected by
cultural norms and behaviours that differ by location and society. The largest
religion in India, Hinduism, generally prohibits abortion since it is seen as
the destruction of a potential life. However, the faith understands that there
may be times when abortion is required, such as when the mother's life is in
danger or when the pregnancy is the consequence of rape. In rare circumstances,
religious leaders may be consulted to provide moral counselling regarding
abortion. Other religions in India, such as Islam and Christianity, also have
varying views on abortion. In Islam, the general principle is that abortion is
not permitted unless the mother's life is at risk, and even then, it is a
decision that should be made after careful consideration. In Christianity,
views on abortion vary by denomination, with some opposing it on the basis of
the sanctity of life, while others believe that it is a decision that should be
made by the individual and their conscience. Cultural attitudes concerning
women and gender roles might also influence abortion attitudes in India. Women
who seek abortions may experience social stigma and prejudice, particularly in
more conservative areas. In rare situations, women may be shunned by their
families or communities for obtaining abortions, and may endure undesirable
effects such as forced marriage or social isolation.
LEGAL FRAMEWORK SURROUNDING THE
ABORTION LAWS IN INDIA
On August 25, 1964, the Central
Family Planning Board suggested that the Ministry of Health form a committee to
explore the necessity for abortion laws. The recommendation was adopted in the
latter half of 1964, and a committee was formed with representatives from
various Indian public and commercial agencies. The Shantilal Shah Committee was
formed. On December 30, 1966, this committee issued its report after analysing
a great amount of statistical data accessible at the time. Based on this study,
the government passed the Medical Termination of Pregnancy Act, 1971[7]
and liberalised abortion regulations in India.[8]
The Act, which has only eight parts, addresses issues such as the time, place,
and circumstances under which a pregnancy may be terminated by a certified
medical practitioner. It legalises abortion in cases when contraception fails
or if the pregnancy may have an adverse effect on the pregnant woman's physical
or mental health. The pregnant woman's agreement is necessary unless she is a
minor or a lunatic, in which case her guardian's approval is required. The act
allows for the termination of a pregnancy up to 20 weeks of gestation on
medical, social, humanitarian, and eugenic reasons in a safe atmosphere by a
recognised licenced and suitably competent medical practitioner.[9]
This Act allows for the termination of a pregnancy up to 12 weeks of gestation
based on the opinion of a single licenced medical practitioner, and between 12
and 20 weeks of gestation based on the opinions of two registered medical
practitioners. The grounds include grave risk to the woman's physical or mental
health in her current or foreseeable environment, such as when pregnancy
results from contraceptive failure, or humanitarian grounds, or if pregnancy
results from a sex crime such as rape or intercourse with a mentally-challenged
woman, or eugenic grounds, where there is reason to suspect substantial risk
that the child, if born, will suffer from deformity or disease. The law allows
abortions to be performed in any government-run hospital, but any institution
in the private sector must be approved or certified. The law makes exceptions
for abortions performed to save a woman's life: the doctor does not need the
required experience or training but must still be a registered medical
practitioner, a second opinion is not required for abortions performed after 12
weeks, and the facility does not need prior certification.[10]
The Medical Termination of Pregnancy Rules and Regulations 1975, define the
criteria and procedures for approval of an abortion facility, procedures for
consent, keeping records and reports, and ensuring confidentiality. Any
termination of pregnancy done at a hospital or other facility without prior
approval of the Government is deemed illegal and the onus is on the hospital to
obtain prior approval.[11]
MEDICAL TERMINATION OF PREGNANCY ACT,
1971-
The Medical Termination of Pregnancy
(Amendment) Act of 2021 amends the MTPA 1971 to raise the upper limit for
abortion for certain sorts of women from 20 to 24 weeks. The Amendment elevates
the upper gestation limit from 20 to 24 weeks for specific groups of women,
which would be defined in the MTPA 2021 and would cover, among others, rape
survivors, incest victims, and other vulnerable women (such as
differently-abled women and minors).
On March 16, 2021, the Medical
Termination of Pregnancy (Amendment) Act, 2021 (MTPA 2021) was passed,
modifying the provisions of the Medical Termination of Pregnancy Act, 1971.
(MTPA 1971). In general, the Act governs when and how a pregnancy can be
terminated. The bill expands the window for abortion.
The Medical Termination of Pregnancy
(Amendment) Bill, 2021 intends to increase women's access to safe and legal
abortion services on therapeutic, eugenic, humanitarian, or social grounds. The
amendments include the substitution of certain sub-sections, the insertion of
certain new clauses under certain sections of the existing Medical Termination
of Pregnancy Act, 1971, to increase the upper gestation limit for termination
of pregnancy under certain conditions, and to strengthen access to
comprehensive abortion care under strict conditions, without compromising
service and quality of safe abortion.
THE CHILDREN'S PROTECTION FROM SEXUAL
OFFENSES ACT OF 2012
The age for consensual sexual intercourse
is set at 18 by the Protection of Children from Sexual Offenses Act of 2012. As
a result, POCSO considers all pregnant women under the age of 18 to be rape
survivors and requires providers to report abuse. 8 This reporting requirement
runs counter to the MTP Act's confidentiality and privacy provisions. In 2015,
the Supreme Court permitted abortion after 20 weeks if a team of doctors judged
that the pregnancy would be harmful to the girl's mental and physical health.
It sets a significant precedent for improved access to safe abortion services
for minor rape survivors.
THE PROTECTION OF CHILDREN FROM
SEXUAL OFFENCES ACT,2012-
The age for consensual sexual
intercourse is set at 18 by the Protection of Children from Sexual Offenses Act
of 2012. As a result, POCSO considers all pregnant women under the age of 18 to
be rape survivors and requires providers to report abuse. 8 This reporting
requirement runs counter to the MTP Act’s confidentiality and privacy
provisions. In 2015, the Supreme Court permitted abortion after 20 weeks if a
team of doctors judged that the pregnancy would be harmful to the girl’s mental
and physical health. It sets a significant precedent for improved access to
safe abortion services for minor rape survivors.
RECENT CHANGES RLATED TO ABORTION
LAWS IN INDIA-
The Medical Termination of Pregnancy
(Amendment) Act of 2021 amends the MTPA 1971 to raise the upper limit for
abortion for certain sorts of women from 20 to 24 weeks. The Amendment elevates
the upper gestation limit from 20 to 24 weeks for specific groups of women,
which would be defined in the MTPA 2021 and would cover, among others, rape
survivors, incest victims, and other vulnerable women (such as
differently-abled women and minors).
On March 16, 2021, the Medical
Termination of Pregnancy (Amendment) Act, 2021 (MTPA 2021) was passed,
modifying the provisions of the Medical Termination of Pregnancy Act, 1971.
(MTPA 1971). In general, the Act governs when and how a pregnancy can be terminated.
The bill expands the window for abortion.
The Medical Termination of Pregnancy
(Amendment) Bill, 2021 intends to increase women's access to safe and legal
abortion services on therapeutic, eugenic, humanitarian, or social grounds. The
amendments include the substitution of certain sub-sections, the insertion of
certain new clauses under certain sections of the existing Medical Termination
of Pregnancy Act, 1971, to increase the upper gestation limit for termination
of pregnancy under certain conditions, and to strengthen access to
comprehensive abortion care under strict conditions, without compromising
service and quality of safe abortion.
ACCESS TO ABORTION SERVICES
Abortion is permissible in India
under specific conditions, such as when the pregnancy endangers the mother or
child's life, or in situations of rape or foetal abnormalities. Despite the
legal status of abortion, many sections of the country have limited access to
safe and legal abortion services. Many variables influence the availability and
accessibility of abortion services in India, including cost, geographic
location, and stigma. Many women seeking abortion treatments in India face
severe financial challenges. Even though the government provides free or
subsidised treatments to select groups, such as Below Poverty Line (BPL)
families and women in government hospitals, many women are still obliged to pay
for abortion procedures out of pocket. Private clinics and hospitals frequently
demand high prices, making it difficult for low-income women to obtain safe and
legal abortions. Traveling to an abortion centre can also be expensive,
especially for women who reside in remote areas.
Another important element influencing
access to abortion services in India is geographic location. A sizable majority
of India's population lives in rural areas, where healthcare infrastructure is
frequently inadequate. While seeking abortion services in these locations,
women confront a number of problems, including limited access to skilled
healthcare practitioners, a lack of medical equipment and supplies, and lengthy
distances to travel to facilities that provide abortion services. Furthermore,
social and cultural conservatism is more prevalent in many rural communities,
which might stigmatise and prevent women from accessing abortion services.
Stigma is a widespread issue that
affects women seeking abortion services in India. Abortion is still considered
taboo in many regions of the country, and women who seek abortions may face
severe social shame and discrimination. This stigma might cause women to feel
humiliated or embarrassed about obtaining abortion services, making it less
likely that they will use them. The stigma also has an impact on the quality of
treatment that women receive while seeking abortion services, since many
healthcare providers may be unwilling to give abortions owing to social
pressure and shame.
THE ROLE OF HEALTHCARE PROVIDERS IN
PROVIDING SAFE AND LEGAL ABORTIONS
The provision of safe and legal
abortions is a complex topic that involves a wide spectrum of healthcare
providers, including doctors, nurses, and other medical experts. These persons
serve a key role in ensuring that women have access to safe and legal abortion
services, and that these services are given in accordance with all applicable
laws and regulations. One of the most critical duties of healthcare providers
in providing safe and legal abortions is to give women with accurate and
unbiased information about their options. This covers information regarding the
dangers and benefits of various abortion methods, as well as the legal
prerequisites for obtaining an abortion in a specific country. Healthcare
practitioners must also ensure that women are fully educated about their
abortion rights and options, including the availability of counselling and
support services.
Healthcare practitioners must
guarantee that women receive high-quality medical care throughout the abortion
process, in addition to giving accurate and unbiased information. This involves
administering all essential medical tests and assessments, ensuring that women
receive adequate pain management and anaesthesia, and monitoring their health
and well-being both during and after the treatment. Women must also have access
to any necessary follow-up care, such as counselling and support services,
according to healthcare providers.
The crucial duty of healthcare
practitioners in providing safe and legal abortions is to guarantee that all
relevant laws and regulations are followed. This includes adhering to all
necessary licence and certification requirements, as well as adhering to all
relevant legal and ethical standards. Healthcare professionals must also
guarantee that women express informed permission before receiving abortion
services, and that all patient information is kept discreet and private.
Healthcare practitioners must be
prepared to negotiate the complicated social and political problems that
frequently surround the provision of abortion services. This may include
campaigning for their patients' rights and interests in the face of opposition
from anti-abortion groups, as well as striving to build a supportive and
inclusive atmosphere for women who choose to receive abortion services.[12]
[1] Suchita
Srivastava v. Chandigarh Admn., (2009) 9 SCC 1
[2]
Roe v. Wade, 410 U.S. 113 (1973)
[4]
United Kingdom; Abortion Act 1967
[5] Shivani
Deshmukh; A Comprehensive History Of Abortion Laws In India: 1971-2021; Jul 13,
2022; https://feminisminindia.com/2022/07/13/a-comprehensive-history-of-abortion-laws-in-india-1971-2021/
[6]
Supra Note 5
[8] Government of India, Report of
the Committee to Study the Question of Legalisation of Abortion 36 (Ministry of
Health and Family, 1966)
[11] Government of India. The Medical
Termination of Pregnancy Rules and Regulations.VideGSR2543, New Delhi7 Gazette
of India, 1975.
[12] Induced
Abortion; September 2019; https://www.guttmacher.org/fact-sheet/induced-abortion-united-states
Article Information
ABORTION AND ITS DIMENSIONS
Authors: MANASVITA PRASAD, PRIYANSHU RAJ
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/01
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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