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Abortion: its Evolution & Challenges

Abortion Laws in India

Human rights are those rights that should be available to everyone without any type of discrimination. The foundation of freedom is the recognition of all members of the human family’s inherent dignity and equal and inalienable rights. The right to life is a human’s most important right. It is the most fundamental human right, from which no exceptions can be made. It is unassailable. The arbitrary deprivation of life is prohibited by Article 6(1) of the International Covenant on Civil and Political Rights. However, there are several contentious concerns surrounding this greatest privilege. The right to abortion is one of these issues. The removal or evacuation of an embryo or foetus from a pregnant woman is known as abortion. To this day, abortion is one of the most divisive questions in biological ethics. It’s a widely disputed topic all around the world, and there are many various points of view on whether or not it’s legal. It is considered that, among other things, every mother has the right to abortion, which is a universal right. However, the rights of the mother must be balanced against those of the unborn child.

Abortion has remained one of the most contentious issues in biological ethics to this day. It’s a topic that’s been hotly debated all over the world, and there are a lot of different perspectives on whether or not it’s legal. The question is whether this falls under the purview of the Indian Constitution or whether it fails to meet the conditions for recognition as a fundamental right. Abortion, which is defined as Causing Miscarriage in the Indian Penal Code of 1860, is considered a penal act. It refers to a ‘lady who induces her miscarriage.’ Among the various rights guaranteed to women in India, the right to an abortion must be accorded equal weight to the right to conceive a child and become pregnant. 

The Right to Abortion, like the Right to Live in Dignity and Make Free Choices, is under the ambit of Article 21 of the Indian Constitution unless it interferes with the current legal proceedings. Except as provided by law, every person inside the Indian nation’s national territory is guaranteed the right to life and personal liberty, according to Article 21 of the Indian Constitution. In the case of abortion, the woman has the same right to life as any other Indian citizen and is free to choose what she wants to do with her body. Furthermore, a foetus isn’t a real human person, according to a widely held scientific belief. It has the potential to be a human being, yet it isn’t one.

Laws governing Abortions in India
The Indian Penal Code, 1860

In India, abortion was lawful until 1971, when it was declared criminal under Section 312 of the Indian Penal Code, which described it as “intentionally producing miscarriage.” Except in circumstances when abortion was necessary to save a woman’s life, it was a criminal offence, with anybody who intentionally caused a pregnant woman to miscarry facing three years in prison and/or a fine, and anyone who knowingly offered the service facing seven years in prison and/or a fine. In India, induced abortion is prohibited by the Indian Penal Code of 1860, which considers the social, emotional, and medical aspects of abortion.

The same statute, on the other side, allows for therapeutic abortion. The pregnancy can be terminated if the mother’s life is at risk. Unless it is for the sole purpose of saving the mother’s life, the unborn child in the womb shall not be killed.

Medical Termination of Pregnancy Act, 1971

In the 1960s, when abortion was legal in 15 countries, India began debating a legal framework for induced abortion. Due to an alarming increase in the number of abortions, the Ministry of Health and Family Welfare has been placed on high alert. In August 1971, the Medical Termination of Pregnancy Act was signed into law. This act recognises a woman’s bodily and mental agony if she is compelled to give birth to a child as a result of an unwanted pregnancy. The condition is that the medical professionals must believe, in good faith, that continuing the pregnancy would endanger the pregnant woman’s life or cause serious harm to her physical or mental health, or that there is a risk that the child would be severely handicapped if born due to physical or mental abnormalities.

If the pregnancy is caused by rape, the misery or emotional pain is enough to seriously affect the mental health of the expectant lady. Furthermore, if a pregnancy occurs as a result of the male or female’s failure to use any device or contraceptive (only in the case of married women), the anguish or mental distress produced by the unplanned pregnancy is sufficient to cause significant damage to the pregnant woman’s mental health. No pregnancy can be terminated without the consent of the pregnant lady. If she is a minor (as defined by the Indian Majority Act of 1875) or a lunatic, her guardian’s written agreement is necessary. An adult woman has the right to terminate the pregnancy of her own free will without the consent of the father.

When one registered medical practitioner thinks, formed in good faith, that termination of such pregnancy is necessary immediately to save the pregnant woman’s life, the opinion of two registered medical practitioners is not required in the case of 20 weeks and proper termination location.

Inefficiencies in the Act

This consent-seeking practice of requesting court permission to terminate their pregnancies only before 12-20 weeks on medical advice from Medical Practitioners appears to have failed the basic objective of the Medical Termination of Pregnancy Act, 1971. The purpose of the relatively short time frame for terminating a pregnancy was ostensible to protect the girl child by preventing sex-selective abortions or female feticide in this country, but this law has contradicted the modern reality of today, and the brunt of it is being faced by women who experience abnormalities during their pregnancies, rape survivors, or simply any woman who wishes to keep her child because she feels unprepared for it. By making abortion a qualified right, lawmakers are robbing women of their autonomy over their bodies and their ability to choose whether or not to keep their children, leaving them with little choice except to turn to the courts for permission to end their pregnancies if they do not want to keep them. 

The act stipulates that a woman has the right to abort her kid only if she is 18 years old, i.e., the age of majority, and not insane. Though the lawmakers have taken into account situations where pregnancies hurt a woman’s mental health or her life is in danger, or where the pregnancy is the result of rape, which is a major trauma for a woman to deal with for the rest of her life, this act also recognises that such an unwanted pregnancy will only add to her misery. However, legislators have ignored other aspects of a woman’s life where she may choose not to carry a child because she is not ready for it or does not feel financially or mentally capable of carrying the responsibility of having a kid. 

Medical Termination of Pregnancy (Amendment) Act, 2021

The Medical Termination of Pregnancy (Amendment) Act received Presidential Assent on March 25, 2021. The Act amends the 1971 law by expanding the number of weeks a woman can keep her pregnancy and defining precise circumstances under which a pregnancy can be terminated at any time. While the amendment has increased abortion access to some extent, it fails to address a fundamental flaw in the Medical Termination of Pregnancy Act of 1971 (MTP Act), which states that a woman does not have the right to terminate a pregnancy, but may be allowed to do so only in specific circumstances and only if a medical professional (and, in some cases, a medical board) determines that those circumstances are met.

When the MTP Act was first adopted in 1971, it was fashioned after the Abortion Act of 1967, which had been approved in the United Kingdom. The legislative goal was to provide pregnant women with a qualified ‘right to abortion,’ but abortion has never been widely acknowledged as a viable alternative. As a result, the legislature never intended to legalise abortion.

Despite its nearly 50-year existence, however, the framework continues to face implementation issues, 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, other laws have had a considerable impact on the law, and it has not kept up with substantial improvements in medical technology.

On therapeutic, eugenic, humanitarian, and social grounds, the new Medical Termination of Pregnancy (Amendment) Act 2021 offers universal access to comprehensive treatment by extending access to safe and legal abortion services. Under the Act, a married woman may terminate a pregnancy up to 20 weeks once a contraceptive technique or device fails. Unmarried women can also terminate a pregnancy for the same reason. One Registered Medical Practitioner’s (RMP) perspective on abortion up to the 20th week of pregnancy. Two RMPs’ perspectives on terminating a pregnancy at 20-24 weeks.

A state-level medical board’s opinion is required if a pregnancy is terminated after 24 weeks due to substantial foetal abnormalities. The top gestation limit for special sorts of women, such as rape survivors, incest victims, and other vulnerable women, has been lifted from 20 to 24 weeks (differently-abled women, minors, among others). “The identity and other personal information of a woman whose pregnancy has been terminated shall not be disclosed,” save to those who are authorised under current law. 

By lowering unnecessary maternal death, the new law will help to accomplish the Sustainable Development Goals (SDGs) 3.1, 3.7, and 5.6. SDG 3.1 calls for a reduction in maternal mortality, whereas SDGs 3.7 and 5.6 call for universal access to sexual and reproductive health and rights. The changes would expand the range of safe abortion services available to women while also ensuring dignity, autonomy, confidentiality, and justice for women who need to terminate their pregnancy.

Punishment for committing an illegal abortion

It is important to highlight that an abortion that does not meet the aforementioned criteria is considered a crime in India under general criminal law. The following are the justifications for doing so:

Abortion of pregnancy which is under 4 to 5 months: An illegal abortion can result in up to three years in prison and/or a fine. Both the mother and her doctor are considered criminals unless they acted in good faith to save the mother’s life.

Abortion of over 5-month pregnancy: The penalty is doubled if the abortion is performed while the foetus is moving. This is known as quickening, and it usually happens between 17 and 20 weeks of pregnancy. Both the mother and her doctor may face up to seven years in prison and a fine unless they acted in good faith to save the mother’s life.

Abortion without the woman’s consent: The person who uses coercion to force the woman to get an abortion or conducts one without her consent could face up to ten years in prison and a fine.

Abortion resulting in death: The doctor who conducted the surgery might face up to 10 years in prison and a fine if a patient died as a result of a botched abortion or an abortion performed by an untrained individual. The penalty for performing an abortion without the patient’s consent is life in prison.

Intentionally causing the death of a foetus: Intentionally killing a foetus can also be prosecuted under several provisions of the Indian Penal Code, 1860, with a maximum prison sentence of ten years.

Realities of Abortion Law

The failure of abortion laws in this country to provide justice to the women for whom they were enacted and how they are currently applied can be seen in the plight of these underage rape girls, who are the most vulnerable victims of the 20-week mark provided in the Medical Termination of Pregnancy Act, 1971 because pregnancies are discovered late and the stigma attached to rape survivors in this country silences them in such a way that they are left witless. 

The restricted legal status of abortion in India calls into question Indian women’s right to reproductive life, and India’s stringent abortion laws jeopardise the sanctity of gender neutrality that the country’s constitution gives to its women. The abortion laws of this country are failing its women on many fronts, as we as a society have seen time and time again how restrictive abortion practices have only continued to jeopardise women’s reproductive rights and played with their lives and health, adding to their plight the slow legal machinery of this country, which renders the entire law useless, as they are not allowed to medically abort their child after reaching the 20-week mark of their pregnancy and in a situation where they are not allowed to abort the child, and in certain cases, due to risky deliveries in difficult cases, the mother’s life. 

It’s worth noting that a study released on the instance of a 35-year-old HIV-positive woman from Bihar who was compelled to have a baby since her documentation was stopped at a government hospital for four weeks and she had passed the 20-week mark. After a protracted legal fight, both the Bihar high court and the Supreme Court rejected her abortion request. The court’s reasoning highlighted the failure of the country’s abortion rules, which are so strict that they fail to empathize with women’s pain. She was already 26 weeks pregnant at the time, and the courts refused to allow her to abort her kid because it appeared to be a risky option.

It is to be applauded that Supreme Courts have changed their minds in some circumstances, allowing women and underage rape girl children to abort pregnancies after the 20-week mark, as stipulated in the Medical Termination of Pregnancy Act, 1971 (MTP) Act.

However, given the pressing conditions, we need a better law that empowers women rather than leaving them vulnerable to the obsolete MTP Act of 1971.

Conclusion

While it is commendable that the Central Government has taken such a bold stance while balancing our country’s varied cultures, traditions, and schools of thought, the amendment still leaves women with several constraints, many of which make safe abortion access difficult. The most major modification to the Act should be to permit abortion as long as the woman’s health or life is not jeopardized. The law should establish a special panel of doctors to assess whether abortion should be done after 24 weeks of pregnancy. Only then will a woman be able to truly manage her body.

Medical experts should be subjected to extensive testing to ensure that abortion has no detrimental consequences on a woman’s health. This will prevent impoverished minors from giving birth after the legal pregnancy termination time has expired. In certain cases, the pregnancy happens within the allowed timeframe, but the court’s intervention, the slow legal process, and the doctors’ negligence cause a delay, and the timeframe is extended.

Article 21 of our Constitution gives all people the right to life and personal liberty and denying a woman the ability to control her body is an infringement of her fundamental right because the unborn is a part of the mother. As a result, the Medical Termination of Pregnancy Act should be fully implemented, and its requirements should have a greater reach. In the case of Justice K.S. Puttaswamy (Retd.) vs. the Union of India and Others, the court recognized the constitutional right of women to make reproductive choices as a part of their liberty under Article 21 of the Indian Constitution, which, despite laying a robust jurisprudence on reproductive rights and a woman’s privacy, does not translate into a fundamental shift in power from the doctor to the woman seeking an abortion.

References 

https://mycarmesi.com/blogs/f/abortion-laws-in-india

https://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/policies-and-acts-1/law-on-abortion

https://scroll.in/article/993527/indias-amended-abortion-law-still-gives-doctors-not-women-the-final-say-in-terminating-pregnancy

https://www.gktoday.in/topic/mtp-act-issue-of-pro-life-vs-pro-choice/

https://www.legalserviceindia.com/articles/adp_tion.htm

https://www.legalserviceindia.com/legal/article-1121-abortion-laws-in-india-.html

https://www.thehindu.com/opinion/lead/A-tricky-debate-on-abortion/article62116227.ece

https://indiankanoon.org/doc/127517806/

By Arryan Mohanty