The Legality Of Abortion In India – Solutionem Consequendam

Author-Shalini Kaushal
Co-Author- Kahkashan Khanam

Abortion has been one of the most contentious subjects in the field of medical science. It is a matter that has been profoundly deliberated around the globe and holds tremendously deviating views as far as its validity is concerned. The overruling of a fifty-year-old Roe vs. Wade historic judgement which stated that the unduly restrictive state regulation of abortion is unconstitutional by the US Supreme Court has stirred nationwide protest and debates along with the question of bodily sovereignty as well as a women’s right to life and personal liberty. Let us have a look at what Indian laws have to say about abortion and the protection of women’s life. The Right to Abortion undoubtedly falls under the horizon of Article 21 of the Indian Constitution as does the Right to live with self-respect and make free options till the time they don’t interfere with the contemporary procedures of law. In the case of abortion, the women similarly are accustomed to the Right to life and make unrestricted choices upon what she desires to do with their body, as any other citizen of India.[1]

Medical Termination of Pregnancy (Amendment), 2021

Abortion as a word has been derived from the Latin term ‘abortus’ which means an immature placental or fetal tissue prematurely passed or curetted. This means that abortion is an act of giving premature birth, especially the expulsion of a human foetus prematurely at any time before it is viable or competent for nourishing life[2]. As per the Black’s law dictionary, abortion means, ‘The artificial or spontaneous termination of a pregnancy before the embryo or foetus can survive on its own outside a women’s uterus.’ An abortion that occurs without intervention is known as a miscarriage or “spontaneous abortion” also called natural abortion as it occurs due to some diseased state in the mother or the fetus. Criminal or “Induced abortion” on the other hand is often done using several dangerous procedures under sub-standard clinical and unsanitary conditions. Meanwhile, Therapeutic abortions are done by Government assigned medical practitioners in good faith when there is a threat to the mother or the foetus. In India, laws related to abortion are governed by the medical termination of pregnancy (MTP) act, of 1971. However, the MTP act does not allow the medical practitioner to use medical techniques for gathering information about the sex of the child. It is considered completely illegal under Indian Law and the medical practitioner may be sentenced to imprisonment for practising such illegal procedures. This Act does not give women the “Right to abortion” but they get access to abortion services under special circumstances. Consent for the abortion is not required from the woman’s husband or other family members, however, a guardian’s consent is required if the woman seeking an abortion is either younger than 18 or mentally ill. It is an act which provides for the termination of certain pregnancies by the registered medical practitioners and the matters connected therewith or incidental thereto. This act was amended by the government on 25 March 2021.

A detailed study by Lancet Global Health states that 15.6 million abortions occurred in India in 2015 of which 78% were outside health facilities. The old MTP act of 1971 ignored the pace of changing times and medical advancements and did not take into account the rights of women in modern India. Therefore, the need was felt to bring an update to the existing law, an amendment bill was introduced in parliament in 2019. The goal was to strengthen access to proper medical facilities for abortion without compromising dignity, autonomy, confidentiality and justice for women who need safe and quality service. This act also tends to empower women in the aspect of their reproductive rights. The act increased the time period within which the abortion may be carried out. The act also defines ‘termination of pregnancy’ in section 2(e) as a procedure to terminate a pregnancy by using medical or surgical methods. The amended act also states to constitute a state-level medical board which shall consist of a gynaecologist, a Paediatrician and a Radiologist or Sonologist to either allow or deny the termination of pregnancy beyond twenty-four weeks of gestation period only after due consideration and ensuring that the procedure would be safe for the woman at that gestation age and whether the foetal malformation has a substantial risk of it being incompatible with life or if the child born may suffer from such physical or mental abnormalities to be seriously handicapped.

For women and their married life, the importance of this act is immense. As in India, most women are considered to be born solely for childbearing, abortion has an impact on the whole family as well as there are social and emotional consequences that have to be faced by the concerned woman. The health of the woman is also a factor that has to be taken into consideration. Although killing a child in a womb is considered against human morality, ethics and an anti-sentimental act and for that reason, abortion was prohibited in India up until 1971 under sections 312-316 of the Indian Penal code, the termination of pregnancy was considered as a detestable act. But as the cases of female foeticide and female infanticide grew at a larger pace and though prohibited abortion was practised illegally by many, therefore to prevent this the government enacted a strict law like MTP against this very practice, and to increase the number of female infants, to give choice to women regarding her reproductive rights and not to force the unwilling to bear the unwanted.

Therefore, this act paved a way for decriminalising abortion and allowed termination of pregnancy by specialised doctors or gynaecologists only on certain grounds. The act of 1971 provided that abortion is permitted for up to 12 weeks based on the opinion of one doctor and up to 20 weeks based on the opinion of 2 doctors. Abortion could be permitted only on the ground that it attracts risk of life to the pregnant woman, cause grave injury to her mental or physical health or in case of foetal abnormalities or during pregnancy when there is an immediate necessity to save the life of the woman. This condition also included the case of rape and the failure of birth control methods. The act also stated that under section 3(4) a pregnancy cannot be aborted without the consent of the concerned women.

The amendment to this act increased the upper limit for termination from 20 to 24 weeks for certain categories of women and removes this limit in the case of risk to the life of women or foetal. The act allows termination of pregnancies after 24 weeks only in cases where a medical board diagnoses substantial foetal abnormalities. Although it is argued that the act does not specify anywhere the time period within which the medical board has to make its decision. As it is a time-sensitive matter, delay in such decisions can have various social, physical, mental and economic consequences. Before the amendment, if the pregnancy crosses the period of 24 weeks, abortion was not allowed. The category of unmarried women is also taken into account as their pregnancy may be terminated up to 20 weeks in case of failure of a contraceptive method or device. The central government can also notify the official gazette of the categories of women whose pregnancies can be terminated.

The legality of abortion is discussed in this act which contains 8 sections. The implementation of the act is also apparent in the medical field. While the formation of the amendment of the MTP act was taking place the government referred to several directions given by the courts allowing abortion beyond the ceiling limit which persuaded the government to bring the bill to amend the act. After the passing of the bill, the court continues to strictly follow the provisions of this act and interpret it in a harmonious and literal way. While deciding on a case it was held by the Bombay High Court’s Nagpur Bench on 4th February 2022, to permit a rape victim to terminate her 25-week-old pregnancy, stating that a pregnancy caused by rape would bring sorrow and substantial harm to the girl’s mental health. The Court evaluated the report of a certified medical practitioner in determining the risk to the pregnant woman’s body and her mental health. As the pregnancy has crossed the 24-week limit set by the Medical Termination of Pregnancy Act, 2021. Section 5A was inserted in the amended Act which provides for the protection of privacy of women, and it states that neither the name nor the particulars of a woman who sought an abortion under this act shall be revealed by any registered medical practitioner. It is to be noted that the amended act also provides that if anyone contravenes in the provisions of Section 5A shall be punishable with imprisonment which may extend to one year, or with a fine, or with both.

Other benefits of this act are that in many cases, foetal abnormalities are detected only after the period of 20 weeks of pregnancy the new provisions inserted can solve this problem as it allowed abortion up to 24 weeks and this also can be extended in case of risk to a woman’s life. The amended act allows rape victims, and disabled and minor women to abort unwanted pregnancies safely and legally. The act safeguards the rights of pregnant women to abortion.

When the topic of abortion pops up, people around the world have different opinions as well. Like one opinion is terminating the pregnancy is the choice of the woman as it is her reproductive right. The other opinion is that the state must protect the life of an unborn child, therefore it should provide for the protection of the foetus. Women’s right activists around the world are preaching in favour of the amendments regarding abortion as science and technology is improving day by day and many teenagers & adult women are getting aware of their reproductive rights and privacy. They are also spreading awareness regarding safety measures for the termination of pregnancy. The laws related to abortion vary from country to country and every country has set different conditions and time limits related to abortion. For example, in the UK, a pregnancy may be terminated at any time: (i) to protect the life of the woman, (ii) to prevent grave permanent injury to the physical or mental health of the woman, or (iii) if the child is at risk of being born with abnormalities. Further, when determining the injury to the woman’s physical or mental health, her actual or reasonably foreseeable environment may be considered.[3] In South Africa, a pregnancy may be terminated up to 12 weeks at the request of the woman, and between 12 to 20 weeks if: (i) it poses a risk to the mental or physical health of the woman, (ii) there is a risk of foetal abnormalities, (iii) it was caused due to rape, or (iv) continuing the pregnancy would affect the socio-economic circumstances of the woman. And if there is a risk to the life of the woman or the foetus, or if there is a risk of foetal abnormalities the abortion can also take place beyond the limit.[4] Also, the WHO does not specify any maximum time limit after which a pregnancy cannot be terminated.

Abortion is a taboo topic and it is rarely discussed among family or even with peers. So, even with the legality of abortion in India and its provision by public facilities, most people are unaware that facilities for legal abortion exist. At the same time, due to the increased number of female infanticide and female foeticide the government has launched several campaigns and advertisements highlighting the illegal status of sex-determining ultrasounds and sex-selective abortions which led people and especially underprivileged women to believe that all types of abortions are banned. This has led to women opting for illegal methods for terminating the pregnancy getting themselves into life-threatening situations. Despite the new amendment allowing women other than married ones to terminate a pregnancy under MTP Act, most communities offer little or no support to the younger ones turning them towards unsafe abortion. There should be efforts to raise awareness and erase the stigma around sexual activities, unintended pregnancies and abortion.

One big hindrance to the proper execution of medical termination of pregnancy laws is that in India, there is a 75% shortage of qualified doctors as per the All India Rural Health statistics. This shortage of qualified doctors and gynaecologists may limit the access of women to safe abortion services. Note that as per the National Health and Family Survey, only 53% of abortions are performed by a registered medical doctor and the others are conducted by a nurse, auxiliary nurse, midwife (dai), family member, or by themselves [5] The amendments bought by this act must make sure that the abortion is taking place by a registered practitioner.

In a recent judgement dated, January 2, 2022, the Delhi High court observing that reproductive choice is a facet of the reproductive rights of a woman and a dimension of her personal liberty, allowed for the termination of 28 weeks foetus of a 33-year-old woman stating, ‘mother cannot be deprived of the freedom to decide to continue or not continue with pregnancy’. In this case, the foetus was suffering from various abnormalities including tetralogy of Fallot (TOF) with absent pulmonary valve syndrome (PAV).

In another recent judgement, the Karnataka High court stated that the right of a woman to exercise her reproductive choice is a dimension of ‘personal liberty’ as understood under article 21 of the Indian constitution and she has a sacrosanct right to have her bodily integrity protected. In another recent case, Kerala high court directs the hospital to do the needful in a minor rape victim’s plea for termination of a 26-week pregnancy.

Abortion is a woman’s right to choose. There is no disgrace in doing it if the woman feels that she is not emotionally or monetarily ready to deal with the duty of a kid. Abortion is every woman’s right, maybe rich or poor, married or unmarried and it is a decision that she alone can make in society. Therefore, we should regard the woman as a person and not just as a container for the foetus. We should give enough consideration to her rights as well as those of the unborn.[6]

Nevertheless, the amendment to the Medical Termination of Pregnancy Act is a historic move to provide access to safe abortion to all categories of women but the challenge remains with its implementation. Regular interventions of the state are required to ensure access to abortion services through better equipping existing facilities, ensuring adequate supply and availability of contraceptives and making society aware of the risks of unsafe abortions.

References

The medical termination of pregnanacy

[1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3636238

[2] JAISING P MODI, MEDICAL JURISPRUDENCE AND TAXICOLOGY 332 (1955)

[3] Section 1, Abortion Act 1967, https://www.legislation.gov.uk/ukpga/1967/87/section/1.

[4] Choice on Termination Pregnancy Act, 1996, South Africa, https://www.parliament.gov.za/storage/app/media/ProjectsAndEvents/womens_month_2015/docs/Act92of1996.pdf.

[5] Unstarred Question No. 599, Ministry of Health and Family Welfare, Lok Sabha, July 20, 2018.

[6] Arguments in favour of abortion, BBC,( Jun 20, 2017, 12:35 pm) available at http://www.bbc.co.uk/ethics/abortion/mother/for_1.shtml

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