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ABORTION LAWS IN INDIA

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  1. INTRODUCTION

The laws related to abortion vary from country to country due to the complex interplay of societal norms, religious beliefs, legal frameworks and women’s rights.  Throughout history, women have employed a variety of birth control and abortion techniques. Abortion has generated strong moral, ethical, political, and legal arguments because it is not only a technological-medical issue but also the centre of a much larger ideological conflict that calls into question fundamental definitions of the family, the state, motherhood, and young women’s sexuality.  Women have openly or secretly sought termination of pregnancy or commonly called abortion, but their ability to get services has been limited by social and legal restrictions. “Termination of Pregnancy” as defined by Section 2(e) of The Medical Termination of Pregnancy (amendement) Act, 2021 means a procedure to terminate a pregnancy by using medical or surgical methods. In countries like India, women often lack the autonomy to remain single and even after getting married choosing the time of sexual activities that may lead to pregnancy. They might not even have the authority to decide to proceed with pregnancy or not. It is hardly necessary to define abortion, but just to be thorough, let me state that it is the deliberate ending of a pregnancy with the knowledge or purpose that the embryo or foetus will die. Rural and poor women are more likely to receive poor quality health care in comparison to rich and urban women. These social inequalities are essential determinants of access to abortion care which are safe without having regard to the fact that the procedure is legal or not. This differentiation in access to safe abortion puts a burden on women as well as on public health services.

  1. LEGAL FRAMEWORK

The legal framework regarding abortion laws in India has changed over time. Law and Society goes hand in hand. India is a secular and diverse country and different religions have different views regarding abortion. Abortion was forbidden in pre historic hindu scriptures. Abortion has always been forbidden in Hindu scriptures and tradition, with the exception of when the mother’s life is in danger. The foetus, according to Hinduism, is a living, conscious individual who requires and deserves protection. In Hindu literature, abortion is referred to as garbh-hatya (womb murdering) and broona hatya (killing the growing soul).

  1. JOURNEYING THROUGH INDIA’S ABORTION POLICY: EXPLORING THE PAST AND PRESENT LANDSCAPE

The origins of Indian abortion law can be found in 19th-century British law, which made abortion a crime punishable for both the mother and the abortionist unless it was performed to save the woman’s life. India was governed by the Indian Penal Code of 1862 and the Code of Criminal Procedure of 1898 until 1971. Between 1960 and 1980, abortion laws were liberalised around the world and consequently the Shantilal Shah Committee analysed the concept of abortion from various socio-cultural, legal, and medical perspectives.The committee recommended legalising abortion to prevent maternal morbidity and mortality on compassionate and medical grounds. As a result of this MTP Act,1971 was passed. The act has been amended twice from the day it came into operation, first in 2002 and second time in 2021.

  1. CURRENT LEGAL PROVISONS
    1. MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT,2021

The new Medical Termination of Pregnancy (Amendment) Act 2021 expands the access to safe and legal abortion services on therapeutic, eugenic,  humanitarian and social grounds to ensure universal access to comprehensive care. According to Dr. Sumita Ghosh (additional commissioner of Ministry of Health and Family Welfare, Government of India), this Act is a victory for the collective wish of all women of India and it will help them in accessing safe and legal abortion by making it easier. The difference below shows the significant changes brought by this amendment of 2021:

  1. Contraceptive Failure:

In the MTP Act, 1971 termination was only allowed in the case of married women in case of contraceptive failure while in the MTP (Amdt) Act, 2021 includes both married as well as unmarried women.

  1. Opinion needed for termination of pregnancy:

In the MTP Act, 1971 opinion required was one RMP till 12 weeks and two RMPs till 20 weeks while in the MTP (Amdt) Act, 2021 one RMP till 20 weeks, two RMPs 20-24 weeks and Medical Board approval after 24 weeks.

  1. Gestational age limit:

In MTP Act, 1971 it was 20 weeks for all women while in MTP (Amdt) Act, 2021 it is 24 weeks for rape survivors and beyond 20 weeks when the foetus has significant foetal abnormalities.

After a careful reading of section 3 of the amended Principal Act three situations can be made out:

Cases when pregnancy remains less than 20 weeks:

Pregnancy can be terminated if a single RMP (as defined under Sec 2(d) of the MTP (Amdt) Act,2021 on opinion formed in good faith thinks-

  1. the pregnancy to term would put the expectant mother’s life in danger or seriously harm her bodily or mental well-being; or 
  2. there is a significant chance that the unborn kid would have some sort of severe physical or mental defect. 

Section 3(2)’s explanation states that in cases where a woman or her partner uses a device or method to limit the number of children they have or prevent pregnancy, and that pregnancy results in pregnancy-related distress, it may be assumed that the pregnant woman has suffered a serious harm to her mental health. According to Explanation 2, a pregnant woman’s mental health will suffer significantly as a result of the rape.

Cases when pregnancy remains longer than 20 weeks but less than 24 weeks:

Pregnancy can be terminated on the opinion made in good faith by two RMP when:

  1. carrying the pregnancy to term would put the expectant mother’s life in danger or seriously harm her bodily or mental well-being; or
  2. there is a significant chance that the unborn kid would have some sort of severe physical or mental defect.

Section 3(2)(b)’s explanation 2 states that in cases where a pregnant woman claims that her pregnancy was brought on by rape, the suffering she endured as a result of the pregnancy will be deemed to be a serious harm to her mental state.

Cases when a pregnancy lasts longer than 24 weeks:

The restriction of twenty weeks or twenty-four weeks would be waived under Section 3 (2B) if the termination was deemed necessary due to a diagnosis by the Medical Board indicating significant foetal abnormalities. Each state government will establish a Board for this specific purpose, comprising a Gynecologist, a Paediatrician, a Radiologist or Sonologist, and any other members as designated by the State Government.

Women’s privacy is protected under Section 5A. By virtue of the 2021 amendment, it was added. It says that an RMP may only disclose a woman’s name and other personal information to someone who is allowed under an existing law if the woman’s pregnancy has been terminated under this Act.

  1. OTHER LEGAL FRAMEWORK
    1. Pre-Conception and Pre-Natal Diagnostic Techniques (Regulations and Prevention of Misuse) Act, 1994

An Act to forbid sex selection, either prior to or following conception, to regulate prenatal diagnostic methods for the identification of genetic anomalies, metabolic disorders, chromosomal abnormalities, specific congenital malformations, or disorders linked to sex, and to prevent their improper use for sex determination that results in female foeticide; and, for matters incidental or connected thereto. As a result, this law forbids abortions based on gender.

  1. The Constitution of India

The right to abortion can be traced under Article 21 of the constitution of our country if it would be subject to interpretations. Article 21 provides for the right to personal liberty and the right to life. A woman has also the liberty and autonomy to deal with her body in whatever manner she likes. She is free to change her body in any way.

  1. The Indian Penal Code,1860

The crime of causing a miscarriage is covered in Section 312, which asserts that anyone who willfully causes a woman to miscarry may be punished with either type of imprisonment for a term that may not exceed three years, with a fine, or with both. If the woman becomes pregnant quickly, she may be punished with either type of imprisonment for a term that may extend to seven years, as well as liable to a fine.

  1.   NAVIGATING SAFE ABORTION ACCESS IN INDIA: FROM POLICY TO PRACTICE

Nowadays, abortion is still a contentious issue since different people have different opinions about it in different social, cultural, religious, and legal contexts. Some “Pro-existence” groups fight for the rights of foetuses to survive, whereas “Pro-choice” groups defend a woman’s freedom to choose whether or not to become a mother. Moral and legal differences in viewpoints further intensify and widen the rift. It is undoubtedly one of the most contentious issues among individuals, and very few are unsure about whether something is right or wrong. In order to understand safe access to abortion services in India, we must examine the complex interactions that exist between legislative measures and the practical effects they have on those who require abortion services.

  1. MEDICAL TERMINATION OF PREGNANCY: STILL NOT A RIGHT BUT A PRIVILEGE

The objective of MTP Act,1971 as provided in the starting of the act states that this act is to provide for termination of certain pregnancies. Thus, making it clear that act is for certain pregnancies meaning only some selected certain types of pregnancies medical liberalisation of termination of pregnancy is allowed. Abortion after 24 weeks is permitted only when a Medical Board identifies significant foetal abnormalities. This suggests that in cases needing abortion due to rape that last further than 24 weeks, the sole option is to file a writ petition. The word good faith is not defined in the act. So, referring to sec 3(22) of the General Clauses Act,1897 which states ‘a thing shall be deemed to be done in “good faith”, where it is in fact done honestly, whether it is done negligently or not.’ Thus, anything done with due care and attention which is not malafide is presumed to be done in good faith. Hence, good faith leaves somewhere a discretionary power to a doctor as there is no straight jacket formula. Although Section 3 of the Act intended to legalise medical abortion, the decision to issue authorization is exclusively up to professionals acting in good faith. Instead of providing women the freedom to choose and have safe abortions, these limitations strip them of control over their bodies. As a result, we must determine if the medical liberalisation of abortion under the MTP (Amendment) Act, 2021 is liberal enough to be considered a right.

  1. CHALLENGES IN ACCESS TO SAFE ABORTION IN INDIA

Reproductive autonomy is crucial for women’s welfare in India. The MTP (Amendment) Act, 2021, has extended the time frame for abortions and broadened the scope by changing section 3. The amendment replaces “married woman and her husband” with “woman and her partner”, allowing unmarried women to terminate pregnancies within the prescribed time limit. The latest law under section 5A of the Act aims to penalise medical practitioners who fail to protect the privacy and confidentiality of women seeking pregnancy termination. The MTP Act of 1971 has undergone some positive modifications, but it falls short of fully reaffirming women’s reproductive rights in the nation. Even with all of the modifications and adjustments made to the current legal system, women still only dream of having reproductive autonomy.

  1. UNCERTAINTY OVER WHETHER TRANSGENDER PEOPLE WILL BE INSURED

Unquestionably, the Act permits “pregnant women” to terminate their pregnancies in specific circumstances. However, as medical science has advanced, it has become clear that there may be situations in which people who have been classified as belonging to a different gender—transgender people, not women—become pregnant even after undergoing hormone therapy to change their gender identity, necessitating the need for termination services. It is unclear if transgender people would be included by the revised Act because it only permits women to terminate their pregnancies.

  1. ONLY SPECIFIC INSTANCES WILL BE DECIDED BY THE MEDICAL BOARD ABOUT TERMINATION

In order to address the backlog of cases filed as Writ petitions before the Hon’ble Supreme Court and several High Courts, requesting permission to terminate pregnancies beyond twenty weeks in cases of foetal abnormalities or pregnancies caused by rape, the MTP (Amendment) Act, 2021 was enacted. As a result, extending the time frame for pregnancy abortion beyond twenty-four weeks, but only in situations in which a Medical Board has determined that there is a significant foetal abnormality. It is important to note that this type of law suggests that the procedure for ending rape-related pregnancies that have advanced over the 24-week mark remains unchanged: a Writ Petition is the only means of obtaining approval.

  1. TIME FRAME FOR MEDICAL BOARD’S DECISION NOT SPECIFIED

Pregnancy termination is a matter of urgency. The time frame for the medical board’s decision-making is left open under the modified Act. Further issues for pregnant women might arise from the board’s procrastination in making decisions.

  1. INSUFFICIENT ACCESS TO LICENSED HEALTHCARE PROVIDERS FOR PREGNANCY TERMINATION

The medical board or, if applicable, a doctor’s clearance is required before a pregnancy can be terminated under this act. Because there is a 75% shortfall of these doctors in remote community health clinics, pregnant women may still have trouble accessing safe abortion facilities.

  1. LACK OF A CLAUSE GUARANTEEING RESPONSIBILITY IN CASES WHEN THE MOTHER’S DEATH RESULTS FROM THE REFUSAL TO TERMINATE THE PREGNANCY

After closely reading the MTP (Amendment) Act, 2021’s provisions, it became clear that there was no structure in place to maintain responsibility in the event that a woman lost her life due to her decision to forgo an abortion. The majority of women who are denied abortions are either afraid of having an abortion or are unable to navigate the legal system, especially those who are extremely young and from disadvantaged social backgrounds.

  1. CONCLUSION

Given that women are in charge of their destiny and that birth happens in their bodies, reproductive autonomy is essential to their welfare. While it is acknowledged that these rights are unalienable and constitute a component of human rights, moral restraints frequently prohibit women from freely expressing their bodily autonomy. Although new methods have been developed in India to provide access to safe abortions, the majority of abortions take place outside of medical institutions, endangering the lives of expectant mothers.

Safe and medical abortion is further impeded by the patriarchal society and the stigma associated with women, especially single women. Women are constantly subjugated by males and are unable to act independently. Women’s human and fundamental rights are violated when they are denied access to safe abortion. To sum up, reproductive autonomy is essential to women’s welfare and its absence endangers the lives of expectant mothers. Improving access to safe abortion and removing the stigma attached to women’s reproductive autonomy are key to resolving these problems.

AUTHOR- Veerjot Kaur, a student at University Institute of Legal Studies, Panjab University, Chandigarh

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