ABORTION LAW IN INDIA
INTRODUCTION
Abortion law in India till date has been one of the most controversial matters in the arena of biomedical ethics. It is a subject that has been heavily discussed around the world and holds extremely divergent opinions as far its legality is concerned.
The Right to Abortion certainly falls under the purview of Article 21 of the Indian Constitution as does the Right to live with dignity and make free choices unless they interfere with the current procedure of law. Article 21 of the Indian Constitution ensures that every person within the national territory of the Indian nation is guaranteed with the Right to life and Personal liberty except according to procedure established by law. In the case of abortion law in India, the woman equally enjoys the Right to life and make free choices upon what she wants to do with her body, as any other citizen of India.
According to abortion law in India, or the termination of a pregnancy by chemical, surgical, or other means, became legal in 1971. Any woman seeking an abortion would be entitled to have one under the Medical Termination of Pregnancy (MTP) Act, which was adopted that year, as long as the grounds she claims are legal. Despite the fact that it is legal in India, many women are either uninformed of their entitlement to a medical abortion or seek unsafe abortions outside of the formal health care system owing to the shame associated with the practice. The present article discusses the legal status granted to abortion law in India, the lacunas in the declared status, and the possible bandages existing for sufficing the lacunas.
LAWS GOVERNING ABORTION IN INDIA
The Indian Penal Code, 1860
The Indian Penal Code, 1860, taking into consideration the social, emotional and medical implications of abortion, declares induced abortion as illegal all throughout India. Section 312 of the Indian Penal Code, 1860 spells out abortion law in India as causing miscarriage. It applies to a woman who carries out miscarriage on purpose. However, the word abortion is nowhere used in this section. Abortion law would give miscarriage an essence of intention. Miscarriage technically would mean spontaneous abortion, whereas, voluntarily causing miscarriage, which is criminalised under Section 312, will stand for criminal abortion. A clear division among the two is lacking. However, the same section declares Therapeutic abortion as legal. In case there is danger pertaining to the life of the mother, the pregnancy can be discontinued. The unborn child in the womb must not be destroyed unless the destruction is for the sole purpose to preserve the life of the mother.
Medical Termination of Pregnancy Act, 1971
The Medical Termination of Pregnancy Act, 1971 further talks about the situations where a therapeutic abortion can be carried out by a registered medical practitioner. The act highlights in what situations can a pregnancy be terminated, the stipulated time such a pregnancy will be terminated, in what place will this termination take place, and who is authorised to conduct such a termination.
According to the act, a pregnancy can only be terminated under a few circumstances, such as, in situations where the continuation of a pregnancy would involve risks to the life of the mother, or involve grave physical or mental injury to the woman. The act also spells out voidable pregnancies such as in case of a lunatic woman. Further, the act specifies who is a registered medical practitioner and in what place will the termination of the pregnancy be carried on. The act also states that the pregnancy can be terminated in 12 weeks of pregnancy and the opinion of two or more medical practitioners is required if the abortion is done between 12-20 weeks for various reasons.
The Act does not permit discontinuation of pregnancy after 20 weeks. Medical opinion, as stated by the act, must be given in good faith. The term good faith is not described in the concerned Act, but in the IPC,1860, good faith means an act to be done in due care and caution.
The Constitution of India
Though ambiguous and unclear, the Constitution of India also talks about the idea of abortion. As stated before, the Right to abortion might come under the Article 21, if subjected to interpretations. Article 21 dictates the Right to life and personal liberty. It can also be understood that a woman, who has been given such a right, might enjoy her personal liberty and alter her body in any way she can. She might do anything to her body, to suit
Laws governing abortion beyond India
MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021: DETERMINING THE LEGALITY OF ABORTION
On March 25, 2021, the Medical Termination of Pregnancy (Amendment) Act obtained Presidential Assent. The Act modifies the 1971 enactment by increasing the number of weeks a woman can terminate her pregnancy and establishing specific conditions in which a pregnancy can be terminated at any time. While the amendment has increased abortion access to some extent, it fails to address one fundamental flaw in the Medical Termination of Pregnancy Act of 1971 (MTP Act), that a woman does not have the right to terminate a pregnancy, but may be allowed to do so only in certain specified circumstances, and only if a medical professional (and, in some cases, a medical board) determines that those circumstances are met.
The MTP Act was modelled after the Abortion Act of 1967, which had been approved in the United Kingdom when the former was initially implemented in 1971. The legal purpose was to grant a qualified ‘right to abortion,’ and abortion has never been accepted as a common option for expecting women. Therefore, legalizing abortion was never the intention of the legislature.
However, despite its nearly 50-year existence, the framework continues to be beset by implementation challenges, process ambiguities, and interpretative disagreements, all of which have been bolstered by a shaky legislative foundation that has approached the issue from a medico-legal rather than a rights-based perspective. Furthermore, the law has been significantly influenced by other legislations and has not kept pace with important advances in medical technology.
LANDMARK JUDGEMENTS ON LEGALITY OF ABORTION LAW IN INDIA
In 2016, there was an uptick in cases filed in the Supreme Court requesting authorization to terminate pregnancies that were more than 20 weeks old. There were a total of 21 cases before the Supreme Court from June 1, 2016, to February 3, 2018. Out of the 21 cases, one of the lawsuits in relation to the case of Anusha Ravindran v. Union of India (2019) concerned a petition to form committees to make revisions to the MTP Act as well as other recommendations for MTPs’ safe access. Among the five cases (in the group of 21 cases) that appeared before the Apex Court where MTP was rejected, two involved pregnancies that resulted from rape. In the case of Ms. Z v. State of Bihar (2017), the Supreme Court had determined that it was too late to authorise MTP since the pregnancy had progressed beyond 36 weeks. The Court, however, ordered the state to pay the petitioner INR 10 lakh in compensation, adding that the State and the High Court were irresponsible in not guaranteeing the supply of the MTP as soon as possible.
The courts’ rulings that have been made thereafter are majorly based on the Medical Board’s recommendations. The Medical Board’s conclusions on the continuation and termination of pregnancy, rather than the woman’s reproductive rights, became the deciding element for the court. As a result, we must consider whether the courts should be completely reliant on medical board records or not. While the medical boards can assess the woman’s physical health, can they also identify the woman’s mental health and issues, which may necessitate her terminating her pregnancy? If a woman’s reproductive autonomy is to be safeguarded, shouldn’t her right to terminate a pregnancy be established by her? While some judgments can be seen to have taken into consideration the significance of the mother’s mental health, dependence on medical boards is a common event in such cases.
ROLE OF AMENDMENTS
The revisions to the MTP Act were expected to make it really current and progressive, showcasing India’s leadership in setting the world agenda on a delicate matter. While the new legislation is a step forward from the 1971 Act, it is still a long way from being completely inclusive. The wider concerns of women’s rights and access to safe abortion treatment are largely unaffected. The actual test of the amendments’ success will be their implementation and their ability to close access gaps. Simply legalising abortion law in India does not ensure or imply accessibility. A significant amount of work in terms of access, putting in place a rights-based approach, telemedicine, and task sharing, is left to be done.
Despite the fact that abortion law in India is classified as an “essential service,” the gap between abortion providers and abortion seekers is larger than it has ever been. There stands a significant requirement to examine the MTP Amendment Act’s Rules and Regulations from a progressive viewpoint to ensure that the opportunity to increase the service provider base and fix access gaps is not wasted in the times to come.
CONCLUSION
Although the Indian judiciary has welcomed post-20-week abortions among females, the absence of a manner that places women’s choices at the centre and a robust law that lays down detailed procedures for abortions can be felt heavily. Legislation that respects women’s reproductive choices needs to be framed in independent India. Abortion law in India is definitely legal in India provided the grounds discussed in this article are complied with. But it remains to be a restricted right for even the modified abortion law in India gives physicians and not women, the final word in deciding whether or not to terminate her pregnancy. A progressive attitude surrounding abortion law in India will therefore be welcomed in India.
The abortion law in India needs to be more liberalized and progressive. The law should be made favouring more to the women’s choice rather than establishing medical boards for determining whether the termination of pregnancy would result in the well-being of the women or not. The approach of abortion law in India should be made “abortion on request” rather than allowing or denying a woman’s reproductive right by considering the socio-economic situations.
Time is of the essence in abortion cases. The Abortion law in India give many procedures that has to be followed before a woman can terminate her pregnancy and the Act also makes it mandatory for the woman to approach the court if she wishes to terminate her pregnancy after 20 weeks. In most cases, these procedural delays extend the length of pregnancy making it unsafe to terminate.
It is essential that the legislators restore the autonomy of women so that they can be the one to decide on matters relating to her bodily integrity.
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