A Critical Analysis of the Medical Termination of Pregnancy Act: A Comparative Study with U.S. Abortion Laws

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3 months ago

Author: Shalini Shukla, S.S. Khanna Girls’ Degree College a Constituent College of the University of Allahabad

Abstract: This article critically analyzes the Medical Termination of Pregnancy Act, of 1971. This act allows abortion where the pregnancy was caused by rape and also where pregnancy endangers the life of the woman. The Supreme Court of India declared abortion is a fundamental right under Article 21 of the Constitution and that all women have the right to safe and legal abortion under the Medical Termination of Pregnancy Act, of 1971. Abortion is a contentious issue in developing countries like India, with some nations imposing restrictions to protect the “mother’s right to health”, while others do so to defend the embryo’s right to life. This article also focuses on the abortion law in India as well as the USA. Through the judicial decision, abortion is recognized as a fundamental right in India as well as the USA.
Keywords: Abortion, Medical Termination of Pregnancy, India, USA, Reproductive rights.

Introduction: Before 1971 in India, abortion was considered an illegal offence. The IPC governs it under Sections 312 to 318 which deals with “Offences related to unborn child. Now it is replaced by the Bharatiya Nyaya Sanhita, 2023. The Medical Termination of Pregnancy, 1971 aims to terminate certain pregnancies by registered medical practitioners. This Act has 8 Sections. The importance of reproductive rights is undeniable given that they enable a woman to give birth to a child without fear or restriction. When a woman is compelled to get an abortion without her consent, her progenitive right is violated. The Shantilal Shah Committee recommended India’s Medical Termination of Pregnancy (MTP) Act. This committee was established by the Ministry of Health and Family Welfare in 1964 to investigate the reasons behind rising abortion cases and propose legislation regarding abortion. This act makes abortion legal in India in certain situations such as when a pregnant woman’s life in risk and when any pregnancy has occurred by rape so, in this case, abortion is not illegal. The Supreme Court of India declared abortion is a fundamental right and that all women have the right to safe and legal abortion under the Medical Termination of Pregnancy Act, of 1971. Section 88 of Bharatiya Nyaya Sanhita, 2023, talks about (Causing Miscarriage), if miscarriage is not caused in good faith, then it is illegal. The person whosoever causes miscarriage is liable for imprisonment for life, or imprisonment for ten years, and also liable for fine. Abortion law in the United States has been a highly debated and evolving issue, shaped by legal rulings, political ideologies, and societal perspectives. The landmark 1973 Supreme Court case Roe v. Wade initially established a constitutional right to abortion, allowing women to terminate pregnancies within certain gestational limits.

Abortion Law in India: Abortion laws in India have evolved significantly, balancing women’s reproductive rights with ethical, medical, and social concerns. The primary legal framework governing abortion is the Medical Termination of Pregnancy (MTP) Act, of 1971. Section 3 of this Act lays down the conditions under which a pregnancy can be legally terminated:

Gestational Limit:

Up to 20 weeks: A registered medical practitioner (RMP) can terminate a pregnancy if it meets legal grounds.
20 to 24 weeks: Abortion is allowed for special categories of women (rape survivors, incest victims, minors, differently-abled women, etc.), but it requires the opinion of two registered medical practitioners.
Beyond 24 weeks: Termination is permitted only in cases of severe fetal abnormalities, and approval from a medical board is required.

Grounds for Abortion:

If continuing the pregnancy poses a risk to the woman’s life or could cause physical or mental harm.
If there is a significant risk of fetal abnormalities that could result in severe physical or mental disabilities.
In cases of rape, the pregnancy may cause grave psychological distress.
If contraceptive failure occurs in married women or other partners leading to an unwanted pregnancy that affects mental health.

No pregnancy of a woman, who has not attained 18 years, or who has attained 18 years but is mentally ill shall be terminated without the consent in writing of her guardian.

Section 4 of the MTP Act, 1971, talks about the Place Where Pregnancy May Be Terminated:

Abortions can only be performed in government hospitals or approved private medical facilities by registered medical practitioners.
The government has the authority to determine and regulate approved centers to ensure safe medical procedures.
This section aims to prevent unsafe abortions and ensure that termination is performed in hygienic and authorized locations.

Section 5A talks about the Protection of Privacy of Women no medical petitioner shall reveal the name of the woman whose pregnancy has been terminated. If any medical petitioner reveals the name of the woman shall be liable for imprisonment of one year, or, with a fine, or both.

Section 8 of the Medical Termination of Pregnancy (MTP) Act, 1971, provides legal protection to medical practitioners and other individuals involved in abortion procedures if they act in good faith and within the framework of the law.

Medical Termination of Pregnancy (Amendment) Act, 2021: The MTP (Amendment) Act, 2021 is a significant step towards women’s reproductive freedom, ensuring that abortion laws in India are more inclusive, safe, and accessible. However, better implementation, awareness, and accessibility are needed to ensure that all women can benefit from these legal provisions.
- Key changes in the 2021 Amendment:
- One of the most notable changes was the increase in gestational limits for abortion. Under the amendment, abortion is now allowed up to 20 weeks with the opinion of one registered medical practitioner (RMP) and up to 24 weeks for special categories of women, including survivors of rape, incest victims, differently-abled women, and minors, with the approval of two RMPs. For cases involving severe fetal abnormalities beyond 24 weeks, a state-level medical board has been introduced to assess and approve the termination, ensuring expert medical evaluation while also adding an additional layer of bureaucratic scrutiny.
- Previously, abortion due to contraceptive failure was only allowed for married women. The amendment extended this right to unmarried women, ensuring that they are not discriminated against based on marital status. Thus, this amendment act Includes unmarried women.
- The Amendment Act Inserted Section 5 Confidentiality Clause. The amendment protects the privacy of women seeking abortion. No medical professional or hospital can disclose a woman’s identity and violating this provision is punishable under the law.
Landmark Case laws on Abortion in India:

In the case of Suchita Srivastava v. Chandigarh Administration (2009), SC, The Supreme Court recognized reproductive rights as fundamental rights under Article 21 (Right to Life and Personal Liberty) of the Indian Constitution. A mentally challenged woman in a government-run institution became pregnant due to rape. The Chandigarh Administration sought to terminate her pregnancy without her consent. The Supreme Court held that a woman has the right to make reproductive choices, and forced abortion would violate her personal liberty. The Supreme Court also held that abortion should be based on informed consent.

In the case of X v. UOI, 2022, This case expanded abortion rights for unmarried women. The petitioner, an unmarried woman, sought permission for abortion beyond 20 weeks due to contraceptive failure. The Delhi High Court initially denied her request, stating that the MTP Act at the time only allowed such abortions for married women. The Supreme Court later overturned this, holding that denying an unmarried woman the right to abortion was discriminatory. The Court held that all women, irrespective of marital status, should have equal access to reproductive healthcare, ensuring greater autonomy in abortion decisions.

In the case of XYZ v. Union of India (2023), SC, the Supreme Court permitted late-term abortion due to fetal abnormalities, but later reversed its decision, citing concerns about fetal viability and ethical considerations.

Abortion Law in USA:

Abortion laws in the United States have evolved significantly over time, with different states enforcing varying restrictions. The legal landscape is primarily shaped by Supreme Court rulings and state-level regulations.

The most influential case in U.S. abortion law was Roe v. Wade (1973), in which the Supreme Court ruled that women have a constitutional right to abortion under the right to privacy. The decision established a trimester framework: states could not restrict abortion in the first trimester, could impose some regulations in the second, and could prohibit it in the third unless the mother’s life was at risk.

In the case of Dobbs v. Jackson Women’s Health Organization, 2022, the Supreme Court of the USA overruled Roe v. Wade and held that abortion is not a constitutional right. This decision gave individual states the power to regulate or ban abortion as they see fit.

Conclusion: I concluded that Abortion was made legal in India after the enactment of the Medical Termination of Pregnancy Act, 1971. Now Abortion is a fundamental right under Article 21 of the Constitution of India. Under this Act, pregnancy is terminated in some specific situations. A woman’s right to safe abortion is essential, and state interference should be limited to exceptional cases. However, in many instances, access to abortion remains a privilege primarily enjoyed by women in urban areas, while those in rural regions continue to face significant barriers to quality healthcare for terminating unwanted pregnancies.
FQAs:

Is abortion legal in India for unmarried women?
Ans: Yes, unmarried women can legally get an abortion in India if they meet certain conditions. The Medical Termination of Pregnancy (MTP) Act of 1971 was amended in 2021 to allow unmarried women to get abortions.
What is the Medical Termination of Pregnancy (MTP) Act in India?

Ans: Enacted in 1971 and amended in 2021, the MTP Act permits abortion under specific conditions, such as risk to the mother’s life, fetal abnormalities, or pregnancy due to rape or contraceptive failure (for married and unmarried women). It allows abortion up to 20 weeks (with one doctor’s approval) and up to 24 weeks (with a medical board’s approval in special cases).

How does the MTP Act differ from U.S. abortion laws?

Ans: The MTP Act regulates abortion at the national level with uniform guidelines, while U.S. abortion laws vary by state. After Dobbs v. Jackson (2022), individual U.S. states can ban or permit abortion without federal protection, leading to diverse legal frameworks across the country.