CRITICAL ANALYSIS OF ABORTION LAWS IN INDIA

INTRODUCTION

A decision of the United States’ Supreme Court left the people across the globe stupefied. The conservative majority decided to overrule Roe v Wade. In Roe v Wade, a landmark case upon the abortion rights, it was held that women had a right to abortion without excessive government restrictions, and that this right was inherent in the right to privacy.[1] Overturning of this decision led to abortion ban in around 23 American states.

The debate started in the US, brought abortion rights back in the discussion all over the world. In India, unsafe abortions are among the most common causes of maternal deaths. Moreover, according to a study in The Lancet, in 2015, 1.56 crore abortions were accessed annually in India and of these, 78% or 1.23 crore were conducted outside health facilities. Therefore, it is need of the hour to educate people regarding the existing abortion laws in the country.



Abortion is when a pregnancy is terminated so that a child is not born out of it therefore another term coined for it is 'termination of pregnancy’. Abortion in more literal sense is the ending of a pregnancy by removal or expulsion of an embryo or foetus. When an abortion occurs without any intervention it is known as a miscarriage or "spontaneous abortion" and happens in approximately 30% to 50% of pregnancies. When intended steps are taken in order to end a pregnancy, it is called as induced abortion or "induced miscarriage". Generally, the word abortion is used to refer to an induced abortion.



Induced abortions are generally performed for the reasons which broadly fall under following categories: 1) to preserve the life or physical or mental well-being of the mother; 2) to prevent childbirth from a pregnancy that has occurred due to rape or incest; 3) to avert the birth of a child who may have some severe mental illness, serious deformity or genetic abnormality; 4) to terminate a pregnancy due to social or economic reasons like the extreme youth of the pregnant female or lack of sufficient resources in a family. According to some definitions, abortions performed in order to preserve a woman’s well-being or in the cases of rape are justifiable or therapeutic abortions.



Permitting, encouraging or severely repressing induced abortion and to what extent has been a debatable social issue which has divided philosophers, theologians and law makers for centuries. Before 1971, abortion was criminalized in India under section 312 of Indian Penal Code, 1860. It was a punishable offense and criminalized women and whoever voluntarily caused a woman to miscarry a child except in cases where it was done to save the woman’s life. Even though Christian theologians ardently condemned abortion across the globe, the application of stringent laws criminalizing abortion became common only in the 19th century. However, the unavailability of birth-control methods was a factor in the acceptance of abortion in some countries.

The stringent abortion laws are a matter of debate and have been challenged multiples times. The burning issue here is whether or not the law considers a woman as an individual with autonomy over her own body.



THE INDIAN ABORTION LAWS

In India, abortion is legal under some circumstances. Induced abortion can be carried out on various grounds until 20 weeks of pregnancy and in some exceptional cases, court may even permit an abortion after 24 weeks. Before 1971, abortion was considered as a criminal offense and was punishable in India.[2] Around in 1960s, abortion was legalised in some countries and therefore consideration for legal framework for induced abortion was initiated in India as well. In order to address this issue, a committee led by Shantilal Shah was set to come up with recommendations and suggestions to draft the laws for induced abortions in India. Based on the recommendations given by this committee The Medical Termination of Pregnancy bill was introduced in the parliament and was finally passed in August 1971.



The Medical Termination of Pregnancy Act, 1971

The legal framework for making Comprehensive Abortion Care (CAC) services available across India has been provided by The Medical Termination of Pregnancy Act, 1971. The termination of the pregnancy is allowed up to 20 weeks of gestation for the below mentioned reasons:

● When continuation of pregnancy is a threat to pregnant female’s life or could cause grave injury to her mental or physical health

● To prevent the birth of a child who may have substantial risk to be seriously handicapped due to severe mental or physical abnormality



● When pregnancy has resulted from rape

● When pregnancy has occurred because of failure of contraceptives used by a married woman or her husband

The MTP Act states – (i) who can terminate a pregnancy; (ii) the time period until when a pregnancy can be terminated; and (iii) Place where pregnancy can be terminated. The MTP Rules and Regulations, 2003 delineate training and certification requirements for a provider and facility; and provide reporting and documentation requirements for safe and legal induced abortion.



Who can terminate a pregnancy?

According to the MRT Act, a pregnancy can be aborted only by a registered medical practitioner, who satisfies the below mentioned requirements:

(i) has a valid medical qualification under the Indian Medical Council Act

(ii) whose name is mentioned in the State Medical Register

(iii) And has experience or training as per the MTP rules in gynaecology and obstetrics



Where can a pregnancy be terminated?

All government hospitals are inspo facto allowed to provide CAC services. However, facilities operating in private sectors need government’s approval. A committee is constituted at the district level known as the district level committee and is responsible for prescribing the approval. The MTP Rules, 2003 provide certain forms which are essential for approval of a private place to provide MTP services.



Whose consent is required for termination of pregnancy?

According to the MTP Act, the only consent required is that of the woman whose pregnancy is being terminated. Although, in the event of terminating the pregnancy of a minor i.e., below the age of 18 or of a woman of unsound mind, consent of guardian is required. As per the MTP Rules, 2003 consent needs to be documented on Form C Consent form.


Whose opinion is required for termination of pregnancy?

The MTP Act states that the opinion of a single Registered Medical Practitioner (RMP) is needed to terminate a pregnancy up to 12 weeks and for terminating a pregnancy between 12 and 20 weeks, the opinion of at least two Registered Medical Practitioners is required. Though termination is carried out by one RMP only. As per the MTP Regulations, 2003 opinion of RMP/s is to be recorded on Form I - Opinion Form.



VARIOUS AMENDMENTS MADE IN THE MTP ACT

Over the years, the Medical Termination of Pregnancy Act has been amended a couple of times.


MTP Act, Amendments, 2002

In order to facilitate better implementation and increase access to CAC for women, especially in the private sector, the medical Termination of Pregnancy (MTP) Act 1971 was amended in 2002.



  1. The amendments effectuated in 2002 decentralized the process of approval of a private place to offer abortion services to the district level. In order to increase the number of CAC service providers in the legal realm, the district committee was empowered to approve a private facility to offer MTP services.

  2. The word ‘mentally ill person’ replaced the word ‘lunatic’ to lay emphasis that ‘mentally ill person’ refers to a person who is in need of treatment due to any mental disorder other than mental retardation.

  3. For the purpose of ensuring safety of women and compliance of law, stricter penalties were introduced for conducting unsafe abortions in unapproved sites or by untrained medical providers as per the Act.



MTP Rules, 2003

The MTP rules,2003 help in better implementation of the act and increase access to safe and legal abortions especially in private sector. It specifies:

● Composition and tenure of District Level Committee

● Approved place for providing medical termination of pregnancies

● Inspection of private place

● Cancellation or suspension of a certificate of approval for a private place



Proposed Amendments to the MTP Act, 2014

In the case, Suchita Shrivastava v Chandigarh administration, a three-judge bench of the Supreme Court consisting of Justices Sathasivam, Balakrishnan and Chauhan, delivered a landmark judgement, upholding that a woman’s right to make reproductive choices was a component of the right to personal liberty guaranteed under Article 21 of the Constitution.[3]

More amendments were proposed in 2014 as the government of India took cognizance of the challenges faced by the women in accessing safe abortion services. In 2006 an expert group to review the existing law was constituted in order to propose draft amendments and a series of expert group meetings were held from 2006-2010 for the same.



In 2014, the Medical Termination of Pregnancy Amendment Bill 2014 was shared by MoHFW in the public domain. The amendments which were proposed primarily focused on increasing the availability of safe and legal abortion services to women across the country through

● Broadening the provider base

● Extending the upper gestation limit for legal abortions

● Increasing access to abortion services which are safe and legal for women

● Enhancing clarity of the existing MTP law



Medical Termination of Pregnancy (Amendment) Bill, 2020

The new amendment seeks to increase the maximum upper limit of gestation which is permissible to 24 weeks, with the provision that for termination of pregnancies that are between 20-24 weeks opinions of one registered medical practitioner will be required rather than two. This has been done to help “vulnerable women” including rape survivors, victims of incest, differently abled women and minors.

According to the proposed amendments the upper limit to gestation will not be applicable in cases of substantial foetal abnormalities which are diagnosed by a medical board. The working, composition and other details of the medical board is provided by the Rules under the Act. In order to keep such cases out of court, the medical board has been deemed to examine various aspects of the case.



The initial draft of the bill allowed MTP in case of the contraceptive failure only for married women, which left unmarried women at the mercy of quacks as the social pressure to abort are more acute for them, because of this, a recommendation for failure of contraception to be accepted as a legal reason and not just for married women was sent in 2016 and it has been accepted.

After the Medical Termination of Pregnancy (Amendment) Bill, 2020 India will now stand amongst nations with highly progressive laws which allow legal abortion services on therapeutic, eugenic, humanitarian or social grounds. Ensuring women’s dignity and autonomy as they can make individual choices from their own perspective.



CONCLUSION

Abortion is considered as one of the safest procedures in medical science if it is performed properly, but unsafe abortion is very risky and may even cause maternal deaths. It is safer than childbirth, which is considered to be 14% more riskier in terms of maternal death. Induced abortions when performed legally and safely on a female who wants to terminate the pregnancy, do not increase the risk of any long-term mental or physical disorder. While in comparison, unsafe abortions which are performed by unskilled individuals cause 47,000 deaths and 5 million hospital admissions each year. Availability of safe and legal abortion to all women has been recommended by world health organisation. It is very essential in reducing maternal deaths as well.



A large number of women seek abortion services, for reasons which might not always distinctly fit legal classifications and the service providers resort to these laws in order to discern the eligibility of a women to avail these services. There is a need for further research in order to investigate the interpretation and implementation of the existing laws and how these laws are applied across various social, economic, cultural and political contexts. Though the recent amendment passed by the cabinet makes the law forward looking, Law-making authorities need to develop a progressive mindset rather than giving value to societal orthodox beliefs.

It is time now to wake up, not just to save lives of women or their children or just to liberate them to bring fairer value to all the genders but to give women the most valuable and least negotiable right.


[1] Roe v. Wade, 410 U.S. 113 (1973) [2] Section 312 of the Indian Penal Code, 1860 [3] Suchita Shrivastava v Chandigarh administration, (2009) 9 SCC 1



This article is written by Navya Arora of NLC, Bharati Vidyapeeth Deemed University, Pune.

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