One of the most sensitive issues in both the country and the world has been abortion. The term "abortion" refers to the process of terminating a pregnancy by removing the embryo or foetus from the uterus before it is ready to give birth. Even though abortion is permitted in India, women are nonetheless reluctant to exercise their right to contraception due to social stigma and the personal biases of medical professionals. While the environment appears to be favorable for decision makers to begin a discussion about safe abortion, the loss of the ability of policy makers, administrators, and women's health advocates to develop strategic interventions is hampered by a lack of accurate information, significant regional and rural-urban differences, the inability to unify various constituencies, and a narrow research base. The review's objective is to compile the available information on abortion in India and determine what efforts should be made to provide abortion-related services that more closely correspond to the requirements of Indian women.
HISTORY OF ABORTION IN INDIA
Abortion was not legalized in India until 1971; in particular, it was illegal under section 312 of the Indian Penal Code framed by Britishers.
The medical termination of a pregnancy is still not available upon request in India. Abortion is illegal under section 312 of the Indian Penal Code (IPC), however the MTP Act makes an exception. The right to an abortion was once prohibited and was highly opposed by society.
Pregnancy termination was referred regarded be the fetus's murder. However, as a result of advancements in technology and time, most countries today recognise this right as a legal right, especially in light of the US Supreme Court's well-known Roe v. Wade [1]ruling. However, there are still critics, and some individuals think that it ought to be illegal.
MTP Act: Medical Termination of Pregnancy (1971)[2]
The Shah Committee, which was established by the Indian government in 1964, carried out research on the sociocultural, medical, and legal aspects of abortion. The committee advocated for legalizing abortion and cited numerous field research. The Constitution was amended to incorporate the Medical Termination of Pregnancy Act in 1971. It implied that women up to 20 weeks of pregnancy had the right to an abortion under the following circumstances:
1. If the pregnancy offers a serious risk to the woman's life and is likely to harm her physically and mentally.
2. If the unborn child would be physically or mentally disadvantaged or pose a threat to their lives.
3. If a rape led to the pregnancy.
4. If childbirth is the outcome of a failed contraceptive.
MTP Amendments Act (2021)[3]
In March 2020, the MTP Amendment Bill was approved by both Houses of Parliament. One of the latest laws passed before the lockdown was this one. This act is an updated and liberalised version of the prior act, which it embodied in its core.It raised the limit for pregnant women to have an abortion from 20 weeks to 24 weeks. This act also allowed unmarried women to terminate their pregnancy based on the failure of contraceptives. Women now have the privilege of having their right to privacy. Only the designated individual may receive information on abortion from the medical institute. This new law extends greater protection to rape survivors, incest victims, people with disabilities, juveniles, etc.
Prior to this change, a licensed medical professional could abort a fetus for up to 12 weeks. Additionally, the advice of two doctors was required for periods of time longer than 12 weeks and less than 20 weeks. One doctor is now required for abortions performed within 20 weeks and two doctors are required for those performed between 20 and 24 weeks.A medical board is responsible for making the decision if any woman requests an abortion beyond 24 weeks by evaluating the seriousness of the requirement.
THE CONSTITUTION OF INDIA
The Indian Constitution mentions abortion, but in a vague and imprecise manner. As was previously mentioned, depending on how it is interpreted, the right to an abortion might fall within Article 21. The Right to Life and Personal Liberty is guaranteed by Article 21. It is therefore understandable that a woman with such a right would exercise her personal freedom and transform her body in any way she sees fit. To fit her needs, she could do anything to her body. She has complete control over her body, thus whether or not she wants to carry out her pregnancy should be entirely up to her.
ARGUMENTS AGAINST ABORTION
● The subject of the fetus's life raises the problem of whether one person's desire for autonomy can go as far as to end another person's life.
● The killing of an innocent person is wrong, and the life of the fetus is also innocent
● A lot of women experience severe emotional anguish as a result of having an abortion.
● Additionally, there is some evidence to suggest that having an abortion may make a woman more likely to develop breast cancer in the future.
● Other issues include uterine and fallopian tube damage and/or infection, which renders a woman infertile. Menstrual irregularities might also happen.
● Another claim is that an embryo (or, in later stages of development, a fetus) has a right to life that must be honored since it is a human being who deserves protection from the time of conception. This argument claims that abortion is murder.
ARGUMENTS FOR ABORTION
● Bodily sovereignty is the first protection. Nobody should force a woman to carry or end a pregnancy against her will; each woman has the ultimate right to decide what happens to her body. The majority of abortions are performed in order to protect the woman's mental health.
● There are additional circumstances where abortions are performed to protect the life of a foetus because continuing the pregnancy would be risky and could endanger the mother's life.
● If abortion is outlawed or severely restricted, we will go back to the era of "back-alley abortions." In the past, this has been followed by exaggerated assertions that these operations put women's health at danger. To terminate the fetus, women turn to several unclean methods.
● When an abortion is performed to preserve the life of the mother, the reasoning is not that the foetus is viewed as being of less importance than the mother, but rather that both will perish if nothing is done. The mother's life is at least preserved by aborting the fetus.
● If, for example, abortion is prohibited, a woman who does not want to carry the pregnancy would do so, give birth, and then abandon the kid. The baby's life would be more in danger if this happened. Therefore, it is preferable to end the pregnancy earlier.
STIGMAS IN INDIAN SOCIETY
Although it is widely believed that India has liberal abortion laws, an examination of the nation's legal system and societal mores reveals that a woman still faces many challenges when choosing to end an undesired pregnancy. The law also gives medical professionals, who are not immune to the morality, shame, and guilt associated with the process, the final say about an abortion. Abortion carries a particularly negative connotation that results from sociocultural beliefs and the exaltation of motherhood. The stigma surrounding abortion is reinforced by medical jurisprudence textbooks' patriarchal preconceptions about women's sexual and reproductive behaviour. We keep being let down by Indian films when it comes to abortion and reproductive rights. A movie about abortion is occasionally released, and each time a woman decides against having an abortion, she is praised and depicted as an inspirational character. In contrast, there are movies where a woman who has an abortion is depicted as an evil character, and it always ultimately comes down to shaming women. Indian films seem to be utterly mute despite the fact that it is against the law and rules to grant personhood to a fetus. For various women in different circumstances, this stigma takes different forms. Married women facing an unwanted first pregnancy are frequently "counseled" to have the child instead of aborting it because doing so will cause secondary infertility.[4]
SUGGESTIONS
Although innovative in its objectives and goals, Indian abortion legislation has some procedural and legal issues that make it difficult to apply and have unfavourable effects. Abortion laws and practises in India are antiquated.
They have many flaws and limitations but attempt to protect women's rights and stop population growth. Although they are not a right, abortions may be performed in certain circumstances, such as when a child has a physical or mental disability, when a pregnancy is the consequence of rape, when a teenager becomes pregnant, etc. This causes many disproportionate restrictions on women, which must be eliminated. The Act must change to be facilitative rather than restrictive. The first is to teach those who provide services in the periphery, the second is to raise awareness of the legality of abortion and make it easier for women to access abortion care, and the third is to find ways to normalise abortion so that it loses its stigma.
The judiciary has occasionally been deemed deficient in its handling of abortion petitions in the past. For instance, in one instance, a woman with HIV had to give birth because the legal system took too long to process her appeal. As a result, the 20-week window was missed, and the woman and the unborn child ran the risk of an induced miscarriage. Thus, the legal system must organize itself. The hearing procedure should be expedited in abortion petition cases in order to allow for a safe and legal abortion in India within the 20-week timeframe. Additionally, a separate bench might be established to expedite these cases.
With their legal guardians' permission, minors may terminate their pregnancies under the MTP Act. This is done to maintain the patient's privacy and hasten the pregnancy termination procedure so that any potential health issues won't have an impact on the child. The POCSO Act, on the other hand, mandates that medical professionals who perform abortions on minors report any such pregnancies to criminal enforcement officials. The doctor will also face legal repercussions if they fail to report this and proceed with the abortion. As a result, children prefer going to quacks or other medical service providers instead of licenced physicians who might perform abortions dangerously. The entire goal of the MTP Act, which aims to protect the identities of women going through an induced miscarriage process, is defeated by this. In India, the issue is considerably worse because half of all brides are minors, who may not have access to the best legal options to end underage pregnancies or may be forced to put their lives and limbs in danger by having a risky procedure. Therefore, there is a need to investigate and eliminate this conflict between the MTP Act and the POCSO[5] Act since it could endanger the lives of many young women.
CONCLUSION
Although India's abortion laws are intended to aid in the emancipation of its female population, their practical implementation and core principles are seriously flawed. To make the MTP Act compatible with contemporary technology and medical practices, an update is required. Additionally, the POCSO Act needs to be changed to prevent conflicts with the MTP Act. India's legal and medical systems both require development. Therefore, it is imperative that the government and other sectors of civil society work together to enhance both the substantive and operational aspects of India's abortion laws and policies. In India, safe motherhood should be a major goal. The prevalence of abortion and the accompanying morbidity and death from unsafe abortions indicate to areas that need to be researched in order to enhance abortion treatment. Operations research may be used to evaluate the efficacy of creative interventions. Establish a market for high-quality emergency abortion services. Women and important decision-makers must be informed of the urgency of getting immediate access to high-quality abortion care services in the event of induced or spontaneous abortion difficulties. Women and decision-makers should be aware that stabilisation and referral to appropriate service facilities are all part of the care for abortion complications, in addition to emergency treatment when required, high-quality care, including contraceptive counselling and services, and referral to other healthcare facilities.
India's laws don't provide women enough freedom, thus they have less rights about their bodies. India should, at this moment, take a woman's viewpoint into account and create laws that are liberating and allow women to make freely and liberal decisions about what they want to do with their bodies. There is no place in any Indian statute where the status of an unborn child is acknowledged. The State should prioritize protecting a woman's life while simultaneously ensuring that she is not denied a fundamental right. Additionally, it is important to demonstrate that Article 21 of the Indian Constitution protects women's right to an abortion.
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[1] Roe v. Wade, 410 U.S. 113 (1973)
[2]The History of Abortion Rights In India and the US Vol 3 Issue 12
[3] Medical Termination of Pregnancy (MTP) Amendment Act, 2021
[4] The abortion and mental health controversy Vol 6 Issue 38
[5] Protection of Children from Sexual Offences Act, 2012
This article is written by Radhika Agarwal of Narsee Monjee Institute of Management Studies.