EVALUATION OF ABORTION LAWS IN INDIA

Author: Riya Malik, Panjab University, Chandigarh

ABSTRACT

Abortion is a process to end the pregnancy leading to the death of the fetus or embryo. The practice of abortion and the laws related to it have always been a topic of contention based on various practices, traditions, moral beliefs, etc. Where some section of people contend that terminating a pregnancy means the murder of an unborn child as soon as it develops inside the woman's body, while others say that it is a woman's natural right regarding her body. The research paper aims to critically analyze the present abortion laws in India with recent amendments to the 1971 Medical Termination of Pregnancy Act which include unmarried women, and the pregnancy age to legally terminate abortion is extended in certain special categories of women, and provision of confidentiality of the women who want an abortion.

Although the MTP act provides a legal way to seek abortion on certain conditions, overall acknowledgment of “ Abortion” as a woman's reproductive right is yet to be made in India.

KEYWORDS:

Abortion, Abortion Laws, MTP Amendment Act 2021,India

INTRODUCTION

Background

“There is no freedom, no equality, no full human dignity and personhood possible for women until they assert and demand control over their own bodies and reproductive process. The right to have an abortion is a matter of individual conscience and conscious choice for the women concerned.”

Abortion comes from the Latin word ‘aboriri’, signifying 'failure to be born.' It is defined as the spontaneous, medical, or voluntary ending of a pregnancy prior to the fetus reaching the point where it can survive independently outside the uterus or can sustain life outside the womb or to say it is a medical process to terminate pregnancy. Abortion is one of the contentious topics that has gained limelight globally. Pro-Choice voice out for the rights of a mother regarding her body viewed as a woman's personal rights, including her right to life, her liberty, and her pursuit of happiness, which supports her entitlement to have an abortion. Whereas Pro Life view abortion as act of killing constituting a moral wrong against public policy and voice out for unborn child having a right to life. In India abortion has been a constant hot-topic of legal vs moral debate . In India laws legalizing abortion based on special circumstances has been approved through enacting Medical Termination of Pregnancy Act and various court judgments have also affirmed and upheld the Right to Abortion as an inherent right to personal life and liberty under Article 21 of Indian Constitution. However despite various legislation and judgments there exists legal loopholes and gaps limiting the women's right to abortion.

Laws relating to Abortion in India

Indian Penal Code,1860: As per IPC, Abortion is criminalized. It held both the mother as well as the abortionist guilty of offence. From Sections 312- 316 the act of abortion is criminalized as an offence, except when done to save the life of the pregnant woman. Section 312 of the IPC mentioned that whoever voluntarily causes miscarriage shall be held guilty of the offence of causing miscarriage. The exception being if the act is done to save the life of a woman who is pregnant. Section 313 of the IPC deals with the cause of miscarriage without the consent of the woman. Under this Section, whether the woman is quick with child or not, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. However, these provisions cease to provide a division between wanted and unwanted pregnancies creating challenges for women to access safe abortions .
Medical Termination of Pregnancy Act, 1971: In 1971, the MTP Act was enacted by Parliament as a “health” measure, “humanitarian” measure and “eugenic” measure, to decriminalize abortion in certain prescribed situations and under the supervision of doctors giving permits to exercise abortions in specific circumstances as provided under the act. Prior to this Act, abortion was criminalized in India and was a punishable offence under the Indian Penal Code, 1860. According to this act, a pregnancy could only be terminated under Section 3(2) if it did not exceed 20 weeks. It laid down that the pregnancy can be terminated on the opinion of one doctor if it is done within 12 weeks of conception and two doctors if it is done between 12 and 20 weeks. Abortion was permitted only when the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health or if they have reason to believe that the child to be born would be physically or mentally handicapped. The Act added that a married woman can terminate an unwanted pregnancy too, but no such procedure shall be performed on any woman without her consent. Thus, if the mother had not crossed 20 weeks of gestation, she would have been eligible for an abortion under the MTP Act. Although this provision makes abortion legal to a certain extent, the authority of making the decision of abortion depends solely on the doctor’s opinion. The name of this act to be pointed out is medicinal termination and there is nowhere mentioned in any section about women's right to seek safe abortion voluntarily. Instead of giving women the right to choose and access safe abortions, this provision further takes away the agency over their own bodies and pointing out clearly to the lack of autonomy over her own body available to women.
Medical Termination of Pregnancy Act,2021: The 1971 act was unable to fulfill the requirements of the changing times and advancements in medical science as several women, including rape survivors, mentally incapacitated and women undergoing unwanted pregnancies due to contraceptive failures, started approaching courts to seek changes in the abortion laws. The Act was finally amended in 2021 with the object of providing women’s access to legal and safe abortion ensuring reduced maternal mortality and morbidity caused by unsafe abortions. The amendments permitted abortion with the Opinion of one Registered Medical Practitioner (RMP) for termination of pregnancy up to 20 weeks of gestation and with Opinion of two Registered Medical Practitioner for termination of pregnancy of 20-24 weeks of gestation. Under the Act, a pregnancy may be terminated up to 20 weeks by a woman in the case of failure of contraceptive method or device. Under special circumstances, women can terminate pregnancy even after 24 weeks of pregnancy if they are victims of rape, incest, or other vulnerable women or if the medical board diagnoses substantial foetal abnormalities. The MTP Amendment herein provides for the constitution of Medical Boards at approved facilities, which may "allow or deny termination of pregnancy" beyond 24 weeks. Significantly, the 2021 amendment replaced the word “by any married woman or her husband” with the words “any woman or her partner”, including pregnancies outside of marriage within the scope of the law. Further the amended act gives privacy to the woman with The name and other particulars of a woman whose pregnancy has been terminated not to be revealed except to a person authorized by law. However , the act does not acknowledge the woman's right to seek abortion as a personal aspect of bodily autonomy and control over their reproductive choice as enshrined in Article 21 of Indian Constitution.

Recent Legal Ambiguity and dilemma

X vs. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and Another (2022)

Facts: A 25 year old woman moved to the High Court of Delhi for allowing her to terminate the pregnancy in the twenty-third week. The appellant had become pregnant out of a consensual relationship. However she wanted to terminate the pregnancy as her partner has refused to marry her at last stage and she was cautious about the social stigma and harassment associated with unmarried single parents, particularly women. Furthermore, she was not financially secure and mentally prepared to raise and nurture the child.

The appellant approached court for the permission to terminate her pregnancy under Rule 3B of the MTP Rules which provide for the termination of a pregnancy between 20-24 weeks under the MTP Act. Rule 3B(c) of the MTP Rules allows for the termination of pregnancy due to “change of marital status during the ongoing pregnancy (widowhood and divorce)”.The High Court of Delhi ruled out that this rule was only applicable to married women, and that an unmarried woman does not fall under the ambit of this provision. The court refused to permit abortion and the case was further appealed to the Supreme Court.

Issue: Whether unmarried women are to be considered under Rule 3B of the MTP Rules which allows for the termination of a pregnancy between 20-24 weeks due to change in their marital status.

Decision: The Court held that unmarried women would be considered within the ambit of Rule 3B for the purpose of terminating a pregnancy due to change in marital circumstances between 20-24 weeks. The Court allowed the appellant in this case to for abortion in accordance with the provisions of the MTP Act. The Court held that the interpretation of the MTP Act would have to consider women’s right to reproductive autonomy, right to live a dignified life, right to equality and the right to privacy. The ruling of K.S. Puttaswamy vs. Union of India ((2017) 10 SCC 1) which held that the right to privacy included the freedom to decide whether to have a child or end a pregnancy, was reaffirmed. The right to privacy includes decisional autonomy meaning having freedom to make decision in regard to one’s private relations. The Court recognized that regardless of marital status, in the case of an unwanted pregnancy, the greater burden of the pregnancy would fall on the woman, affecting her mental and physical health. The Court ruled out that the woman alone possesses authority over her own body and is the final decision-maker regarding her choice to seek an abortion.

Similarly, in Suchita Srivastava v Chandigarh Administration, the Court held that reproductive autonomy regarding the decision of procreation or not is an essential component of “personal liberty”, as protected under Art 21.The Court thus determined that there should be no limitations placed on the exercise of reproductive choice.

X Vs. UOI(2023)

Facts: A 27-year-old married woman, a mother of two, approached the Supreme Court to seek permission for abortion at 26 weeks of pregnancy as per the Medical Termination of Pregnancy Act, 1971, on the grounds that she already had two children and was unwilling to continue with her pregnancy due to physical, mental, psychological or financial reasons.

The medical opinion suggested termination however it showed that foetus was living and had a good chance of surviving. The Supreme Court allowed termination arguing that if the pregnancy continues it will cause a grave threat to the mental health of the woman. Afterwards, a recall application was filed the by the Union Government on the contention that the foetus has chance of survival and had a heartbeat. The first order was recalled and a split second order was passed as the division bench could not reach a unanimous decision. Due to the split judicial order, the matter was referred to a larger bench of three judges which opined that termination was not possible as the pregnancy had crossed the statutory limit of 24 weeks as permissible under the act.

This interpretation of different cases strikes a contrast in “X vs. Delhi,” wherein the Court adopted a liberal interpretation, emphasizing reproductive autonomy and mental health of a woman at primacy . However, in “X vs. Union of India,” the court followed a narrower interpretation, focusing on statutory limitations and fetal viability. With these contradictions still present, it posed a challenge and legal barrier in the course of accepting the fact that abortion should be allowed at the request of women based on their bodily freedom.

LITERATURE REVIEW

ABORTION LAW, POLICY AND SERVICES IN INDIA :A CRITICAL REVIEW, By: Siddhivinayak S Hirve.

This paper critically reviews the history of abortion law and policies in India since the 1960s with details regarding potential and actual abuse and also delves into the barriers associated in the abortion process.

RIGHT TO ABORTION IN INDIA: AN INDISPENSABLE RIGHT OF THE WOMEN, By Shivangi Sharma and Ayushi Sharma.

This paper aims to reflect the importance of the right to abortion to women and delve into the aspect of abortion as an indispensable right under Article 21 of Indian Constitution.

ABORTION LAWS : CHALLENGES AND ISSUES (A SPECIAL REFERENCE TO INDIA AND UNITED STATES OF AMERICA), By Shubhali Chandra .

This paper highlights women's rights regarding abortions, their existing situation, and their prospects for the future and conducts a comparative study of the US and India regulation on abortion laws.

METHODOLOGY

This study adopts the doctrinal method of research, analyzing secondary sources such as case laws, research papers, online articles and journals by various authors. A qualitative research approach has also been used by studying judicial pronouncements (e.g. X v. UOI, X v. Govt. Of NCT of Delhi and Another) to gain an insight into how existing Abortion Laws in India consider women’s right to reproductive autonomy. This methodology provides a broader understanding of legal and social implications of the Abortion Laws.

RESULTS

The findings of the research reveals that abortion laws in India has historically evolved from being criminalised to introduction of Medical Termination Pregnancy Act and it’s various amendments. With the latest amendments introduced in MTP 2021 in consonance with advanced technology provides one way in some cases to women to seek abortion in accord with law. Further the amendment expands its ambit by including unmarried women for abortion and extending gestation period limit .The legislation and policy reforms regarding abortion though not radical but yet mark progress in guaranteeing a woman's right to safe abortion treatment.

As to point out and analysed by this research the acts provided by the legislature only recognised abortion to some extent based on certain circumstances and gives more authority and power to medical practitioners and doctors to grant permission for seeking abortion whereas the true decision making power should be with women as a personal decision .Further various judgments given by court of law also provide contradictions as in some cases the court uphold unborn child right and in other woman abortion right creating an imbalance and need of the hour is to provide a clear picture regarding the abortion laws of India

CONCLUSION

After a long history of legal and moral debate over abortion, India went from criminalising Abortion to legalising it by implementing MTP Act 1971. With the coming of this act , women’s right to reproductive choice was recognised. The MTP Act 1971 had been amended in 2021 to meet the needs of the changing times and provide women a legal framework for access to safe and regulated abortion. The life of an unborn child is nowhere recognised under any statue. Whereas the woman’s right to seek abortion is a part of her bodily right and is directly associated with the fundamental right to life and personal liberty and thus to ascertain it holds primacy over an unborn fetus rights. However, ‘Abortion’ is not acknowledged as the reproductive right of women. Also, irregularities in legislations and court judgements wherein some cases, the court of law took a broader stance focusing on women’s control over her bodily choice, while in some cases, the court took a narrower stance by highlighting statutory limitations and fetal viability, creating loopholes and legal barriers. Despite existing abortion laws, there is still inconsistency in the interpretation of these laws that needs to be addressed, and emphasis should be placed on providing a clear perspective on the abortion laws.