Abortion Laws in India: Relevancy in Changing Times

This article was written by Ankita Sharma, a student of Faculty of Law, University of Delhi.

Abortion is one of the controversial topics all around the world. Abortion is to remove or expel the embryo or foetus before it can survive outside the uterus. People have divergent views about this. They are in the dilemma whether the mother has the right to terminate the pregnancy or that, the unborn child has the right to life. Abortion is something that is criticized by most of the religions. It has moral, religious and legal aspects. Also because of no stringent law on this, there have been unsafe abortions.

Under Indian Penal Code 1860, Abortion is not defined anywhere but Sections 312 to 316 deal with the voluntarily causing of a miscarriage of unborn children. Here the term miscarriage has been used to denote abortion, which is considered as a punitive offence.

Right to abortion certainly should be protected under Article 21 of the Indian Constitution, which says that “No person shall be deprived of his life and personal liberty except according to the procedure established by law”. The person has ‘Right to live with dignity’ and ‘to make free choices.’ Accordingly, women should be allowed to enjoy this fundamental right, it should be her call, what she wants to do with her body.

MEDICAL TERMINATION OF PREGNANCY (MTP) Act, 1971

With the introduction of this act, all illegal abortions were banned and certain changes were brought.

• According to section 3(2) of the act Abortion was permitted up to 12 weeks and for that opinion of one medical practitioner was required.
• Between 12- and 20-weeks pregnancy can be terminated only with the opinion of the two registered medical practitioners only if the termination is in good faith of mother and child. Post 20 weeks termination of pregnancy was not permitted.
• While in cases of foetal abnormality, the permissible limit is post 20 weeks only if the life of the mother is in danger.

If abided by this act, in cases of failure of contraceptives there is no right accorded to the women to have an abortion. To get the pregnancy terminated her will, will not be considered at all, she will have to lie and plead before the doctor. She will have to go through a lot of mental pressure and also bear the financial burden to get the doctor’s approval. This violates the fundamental right as here the approval of a doctor is required rather than the women herself.

In the cases of foetal abnormality, the termination period is post 20 weeks but only if the life of the mother is in danger. What if that woman doesn’t want that baby, what if she doesn’t want to get involved in the whole process of caregiving, lifelong responsibilities and mental pain attached with it? The law doesn’t permit her to decide on her own until and unless her life is in danger.

Abortion, being the moral issue, mostly enshrines the constitutional aspect. It is the right of the women to live whatever way she wants to, no one can tell her what to do with her body, it’s her choice. Any kind of interference in the reproductive choices of women will violate their right to privacy and personal liberty.

In the light of the plethora of petitions being filed in the Supreme Court and High Court for extending the permissible limits on the grounds of abnormality in the foetus or for the victims of sexual violence, the amendment was required in the obsolete act of MTP, 1971.

MTP Amendment Bill 2020

MTP Amendment Bill 2020, was the need of the hour that was introduced in the Lok Sabha on 2^nd March 2020. This Amendment is one of the most liberal moves made by the government. This was much needed to protect the personal liberty of women. She should be the one, who should have the right to do anything she wants to do with her body. The amendment has empowered women and have given them the choice for their reproductive life and to have, save abortion. It is the absolute right which the women have been deprived of, since ages.

Salient Features:

• The requirement for the opinion of one Medical Practitioner for termination up to 20 weeks of gestation and opinion of two Medical Practitioner for termination up to 20-24 weeks of gestation.
• Increasing the gestational period from 20 to 24 weeks for the special category of women i.e. vulnerable group- minors, differently-abled, survivors of rape, the victim of incest, etc.
• No upper gestational period for the women carrying a foetus with abnormality as examined by the Medical Board.
• Name and particulars of the women carrying termination of pregnancy shall not be revealed except to the person as employed by the law for the time being in forced.

It is a step for the safety of women, which will help them to have a safe abortion. This amendment will also decrease the number of cases being filed, for increasing the permissible limit for the termination of pregnancy for the vulnerable group and also for the women carrying a foetus with a congenital abnormality.

It fails to address the issues that are still related to the MTP Act. It doesn’t allow abortion on request at a point after the pregnancy. It enhances the permissible limit from 20 to 24 weeks only for specific categories of women. This doesn’t address the problem of those pregnant women who do not fall under the purview of the mentioned parameters, even if she suffers from grave physical and mental trauma.

Conclusion

This Amendment Bill is a progressive step and one of the most liberal steps by the legislation. More importance is given to women to have justice, to make a decision regarding their reproductive lives, respect is given for their privacy and personal liberty. Such kind of amendments are imperative for the society.

We have come a long way as far as abortion laws are concerned. The law needs to be changed with the growing time, need and advancements in the society.  Still, this amendment bill has certain gaps. It does not protect women with limited resources and poor access to services, this gives some conditions that may result in refutation of reproductive rights. There should be an increase in the permissible termination period for all women as medical technology has shown that abortion beyond 20 weeks is safe.

Although this bill is the right step, the government needs to ensure that all the standardised protocols are being followed while carrying out abortion in health care institutions. Also, the issue of abortion should be determined by looking at all aspects such as human rights and advancements that have been made in science and technology.