ABORTION LAW IN INDIA BY - MUSARRAT NAIM
ABORTION LAW IN INDIA
AUTHORED BY
- MUSARRAT NAIM.
BA, LLB(H)
In
India 7 million abortions are taking place annually. About 50 percent of total abortions
in India are considered illegal. The Medical Termination of Pregnancy Act and
related Rules regarding abortion were clarified by the Supreme Court recently.
The
SC noted that under Article 21, a woman’s right to reproductive freedom is an
integral component of her freedom. The Supreme Court also ruled that denying an
unmarried woman access to a safe abortion breaches her autonomy and freedom.
1. What is Abortion?
Abortion is
the termination of a pregnancy by
removal or expulsion of an embryo or foetus. An
abortion that occurs without intervention is known as a miscarriage or "spontaneous
abortion"; these occur in approximately 30% to 40% of all pregnancies.
When deliberate steps are taken to end a pregnancy, it is called an induced
abortion, or less frequently "induced miscarriage". The
unmodified word abortion generally refers to an induced
abortion. The most common reason women give for having an abortion is for
birth-timing and limiting family size. Other reasons reported include maternal health, an inability to afford a child, domestic violence, lack of support, feeling
they are too young, wishing to complete education or advance a career, and not
being able or willing to raise a child conceived as a result of rape or incest. It can be done two different ways:
·
Medication abortion, which uses medicines to end the
pregnancy. It is sometimes called a "medical abortion" or
"abortion with pills."
·
Procedural abortion, a procedure to remove the
pregnancy from the uterus. It is sometimes called a "surgical
abortion."
2. Why we need abortion laws?
Abortion
laws are necessary to ensure that women have access to safe and legal abortion
services. Legalizing abortion guarantees women the right to make their choice and
imparts independence and justice . Abortion is a significant public health concern that needs to be
addressed legally so that all women have access to safe, timely, and respectful
abortion . The right to access safe abortion services must be codified in law in
accordance with human rights standards that require ensuring the availability,
accessibility, affordability, acceptability, and quality of abortion services,
free and informed decision-making, and adequate financial investment . Where safe and legal abortion services are restricted or not fully
available, a number of human rights may be at risk, including the rights to
life, to health, to information, to non-discrimination and equality, to be free
from cruel, inhuman and degrading treatment, to privacy, to decide the number
and spacing of children, to liberty, to enjoy the benefits of scientific
progress, and to freedom of conscience and religion.
3. About abortion laws:
Abortion
laws vary widely among countries and territories, and have changed over time. Such laws
range from being freely available on request, to regulation or restrictions of
various kinds, to outright prohibition in all circumstances . In
India, the legal landscape surrounding abortion has evolved over the years to
promote women’s health and empower them with choices. The Medical Termination
of Pregnancy (MTP) Act, 1971 is an Indian law that allows for the termination
of certain pregnancies by registered medical practitioners on certain grounds. The Act was
amended in 2020 and 2021 to increase the gestation limit and to provide more
autonomy to women . The article
at provides a detailed study
of various provisions relating to abortion and the separate Act, i.e., the
Medical Termination of Pregnancy (MTP) Act, 1971, along with important case
laws and recent developments. It begins with a brief introduction of the term
‘abortion’ and its meaning, followed by a detailed study of various provisions
relating to abortion and the MTP Act, 1971, along with important case laws and
recent developments.
4. History of abortion law:
The history
of abortion laws in India is a complex one. Before the Medical Termination of Pregnancy Act (MTPA) of 1971, providers
of abortion services and women would face up to 3 and 7 years of imprisonment,
respectively, for providing and seeking an abortion . The only
exception to this rule was in the case that there was a threat to the life of
the pregnant woman. In 1966, then minister of public health, law and judiciary,
Shantilal Shah said that this law needed to be liberalised, as it was too
restrictive. This was what led to India’s first laws on abortion, where the
termination of a pregnancy would be legal, if qualified medical practitioners
allowed it .
The MTPA, 1971, which came into effect in 1972, legalised abortion in
India, if qualified medical practitioners allowed it 2. For its time, India’s laws around abortion were progressive – women had
the right to terminate their pregnancy to the permissible limit of 20 weeks . Still, the MTPA, 1971 had its
drawbacks. For starters, women were only allowed to terminate their pregnancies
if two registered medical practitioners agreed that continuing the pregnancy in
its current state posed a risk to the life of the woman or child. Pregnancies
caused by rape or contraceptive failure within marriage were also fairgrounds
for aborting a pregnancy. In other words, women could only freely get an
abortion in the case of rape or contraceptive failure. It was up to the
doctor’s jurisdiction whether or not a woman could obtain an abortion. Minors and mentally ill women were required by law to provide the consent
of a guardian for an abortion to take place .
The MTPA was
amended in 2020 and 2021 to increase the gestation limit and to provide more
autonomy to women . The enhanced
MTPA, 2021 gives doctors, and not women the final says over whether abortion
should be carried out . The fact
remains that Indian women do not have complete autonomy over their reproductive
rights .
5. How did abortion laws come about in India?
·
In the 1960s, in the wake of a high number of induced
abortions taking place, the Union government ordered the constitution of
the Shantilal Shah Committee to
deliberate on the legalisation of abortion in the country.
·
The Medical
Termination of Pregnancy (MTP) Act was brought into force in 1971.
This law is an exception to the Indian
Penal Code (IPC) provisions of 312 and 313 and sets out the rules of
how and when a medical abortion can be carried out.
·
Under Section
312 of the IPC, a person who “voluntarily causes a woman with child to
miscarry” is liable for punishment, attracting a jail term of up to three years or fine or both,
unless it was done in good faith where the purpose was to save the life of the
pregnant woman.
·
Section 313 of
the IPC states that a person who causes the miscarriage without the consent of
the pregnant woman, whether or not she is the in the advanced stages of her
pregnancy, shall be punished with life imprisonment or a jail term that could
extend to 10 years, as
well as a fine.
6. Grounds of termination of pregnancy:
The Medical Termination of Pregnancy (MTP) Act, 1971 allows for the
termination of certain pregnancies by registered medical practitioners on
certain grounds . The Act was amended in 2020 and 2021 to increase the gestation limit and
to provide more autonomy to women . The new Medical Termination of Pregnancy (Amendment) Act 2021 expands the
access to safe and legal abortion services on therapeutic, eugenic,
humanitarian and social grounds to ensure universal access to comprehensive
care . The following are the grounds for termination of pregnancy
under the MTP Act, 1971:
7. THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT)ACT,
2021
The wave of
change was seen in the reproductive health–care system when the Medical
Termination of Pregnancy (Amendment) Bill, 2020 got its introduction in the Lok
Sabha on March 2, 2020, got the approval from the Parliament on March 17, 2020,
and finally got the assent of the president of India on March 25, 2021, thereby
turning into a comprehensive law regulating the provisions of abortion in
India.
Some of the key features of the MTP
(Amendment) Act, 2021 are discussed as following:
·
Increase
in upper limit for termination of pregnancy- The MTP(Amendment)Act 2021 aims to
increase the gestation limit for the woman bearing the child i.e., if the
pregnant woman wants to terminate her pregnancy up to the gestation limit of
twenty weeks, she needs to have the opinion of one registered medical
practitioner and for the gestation limit of twenty to twenty-four weeks, she
needs to consult the two registered medical practitioners. The upper gestation
limit is also increased from twenty to twenty-four weeks for special categories
of women such as for the victims of rape or incest, minors, and
differently-abled women. However, this rule is not applicable in cases where
substantial abnormalities are found in the foetus.
·
Constitution
of Medical Board– The new Act provides for the constitution of the Medical
Board whose duty is to specifically deal with those cases where substantial
abnormalities are found to exist in the foetus. On the opinion of the Medical
Board, such pregnancies may be terminated after twenty-four weeks in which the
risk of child being born as mentally or physically handicap remains on the
higher side.
·
Contraceptive
failure cases- the new Act also gives the liberation to those women who became
pregnant because of failure of contraceptive device. Such women have the right
to abort the child up to the twenty weeks of gestation limit.
·
Replacement
of the words “married woman and her husband”- The amended Act has opened gates
for termination of pregnancies for those women who are not married or are part
of live-into relationships. The words “married woman and her husband” now
stands replaced by the words “women and her partner”. Such changes can reduce
the plethora of complications which were earlier faced by the unmarried
pregnant women as the burden of shame, guilt and feeling of inferiority complex
was attached to them due to which majority of the times such women were
provoked to commit suicide.
·
Protection
of right to privacy of the pregnant woman- The legislature in amended Act has
made sincere efforts to protect the privacy of the female who undergoes
abortion as according to the new provisions only the person who is authorized
by law is given permission to know about the status of pregnant woman who wants
to exercise her right of abortion. If the registered medical practitioners try
to break this rule, he may be punished with an imprisonment up to one year,
fine or both.
8. Judicial interventions in cases of abortions:
·
Justice K.S. Puttaswam vs. Union of India and
others: The Supreme Court had held that the decision by a pregnant person
on whether to continue a pregnancy or not is part of such a person’s right
to privacy as well and, therefore, the right to life and personal liberty
under Article 21 of the Constitution.
·
Calcutta High Court: It allowed a 37year old
woman, who was 34 weeks into her pregnancy, to get a medical abortion as the
foetus was diagnosed with an incurable spinal condition. This judgment allowed abortion
for the furthest gestation in the country so far.
Way Forward
·
It is commendable that the Central Government has
taken such a bold stand while balancing the diverse cultures, traditions and
schools of thought that our country maintains, however the amendment still
leaves women with various conditionalities, which in many cases become an
impediment in access to safe abortion.
·
In Justice
K.S. Puttaswamy (Retd.) vs. the Union of India and Others (2017), the
court recognized the constitutional right of women to make reproductive choices,
as a part of personal liberty under Article
21 of the Indian Constitution, which, despite laying a robust
jurisprudence on reproductive rights and the privacy of a woman, does not
translate into a fundamental shift in power from the doctor to the woman
seeking an abortion.
·
The government needs to ensure that all norms and
standardised protocols in clinical practice to facilitate abortions are
followed in health care institutions across the country.
·
Along with that, the question of abortion needs to be
decided on the basis of human rights, the principles of solid science, and in
step with advancements in technology.
·
Since it has now become an act, one can be assured
that the country is on the road to advancement, addressing women issues more
fiercely than ever.
9. Conclusion
Abortion
laws in India have evolved over the years to promote women’s health and empower
them with choices. The Medical Termination of Pregnancy (MTP) Act, 1971 is an Indian law
that allows for the termination of certain pregnancies by registered medical
practitioners on certain grounds . The Act was amended in
2020 and 2021 to increase the gestation limit and to provide more autonomy to
women . The new Medical Termination of Pregnancy (Amendment) Act 2021 expands the
access to safe and legal abortion services on therapeutic, eugenic,
humanitarian and social grounds to ensure universal access to comprehensive
care . The MTPA,
1971 legalised abortion in India, if qualified medical practitioners allowed it
. Women had the
right to terminate their pregnancy to the permissible limit of 20 weeks .
The enhanced
MTPA, 2021 gives doctors, and not women the final says over whether abortion
should be carried out . The fact
remains that Indian women do not have complete autonomy over their reproductive
rights .
10.
References