Author- Khushi Vashistha, a student at Sushant University
“Reproductive freedom is critical to a whole range of issues. If we cannot take charge of this most personal aspect of our lives, we cannot take care of anything. It should not be seen as a privilege or as a benefit, but a fundamental human right”
– Faye Wattleton, a renowned American nurse
Introduction
Despite the fact that the Indian Constitution guarantees the right to life under Section 21 of Indian Constitution, women living in patriarchal, male-dominated societies in which decisions about their lives are entirely up to the men in their families. Women around the world are entitled to the right to reproduce. This right is extremely important to society because it protects women from being forced to bear or produce children against their will or because of discrimination. Throughout history, women have utilised a variety of birth control and abortion techniques. These practices have sparked strong moral, ethical, political, and legal arguments because abortion is not simply a techno-medical issue but also the centre of a much broader ideological conflict that questions fundamental definitions of the family, the state, motherhood, and young women’s sexuality. Even if the pregnant woman states that she wants to abort the baby, there is a disagreement about who gets to decide the child’s fate in the womb: the pregnant woman, the husband’s family, the wife’s family, the government, or society as a whole. It is tough to understand whether a woman still needs permission to exercise her right to an abortion, even when we have already entered a period of socially conscious civilizations. Whenever the subject of abortion is raised, the pro-choice vs pro-life debate arises.
A viable a choice for an individual who is carrying life inside herself to medically terminate a pregnancy is one of the most concerning topics for feminists in recent years, representing an almost insoluble dilemma.
In 1964, the Ministry of Health and Family Welfare constituted Shanti Lal Shah Committee to investigate the causes of the increasing number of abortion cases. Then, in 1970, this Committee recommended the MTP Bill, which was passed in August 1971 as the Medical Termination of Pregnancy (MTP) Act. The constraints on the range of medical liberalisations allowed under the Medical Termination of Pregnancy Act, 1971, are the most unfortunate feature of medical pregnancy termination. Abortion laws have undergone continuous alteration in order to better reflect the historical and social contexts in which they are applied. These criteria have all been designed to satisfy societal expectations while disregarding women’s autonomy over their sexuality, fertility, and reproduction, despite their variations in structure, purpose, and introductions.
The legal concept
Sections 312–318 of the Indian Penal Code (IPC), which were drafted in 1860, all dealt with penalties for miscarriage offences. According to Section 312, inducing a miscarriage for any cause other than preserving the life of the expectant mother is illegal, and both the pregnant woman and the individual conducting miscarriage may face consequences. These resulted in a large number of abortions carried out by non-medical staff and a notable number of deaths brought on by unqualified individuals performing abortions. This led the legislature to reevaluate its position on abortion.
When the Medical Termination of Pregnancy (MTP) Act was first suggested in 1971, MTP became permissible under specific guidelines. The requirements for a medical centre and Registered Medical Practitioner (RMP) to be considered qualified to do MTPs were spelled out in the MTP Act, 1971.
Under the Medical Termination of Pregnancy Act, 1971, doctors who specialised in certain fields of medicine are permitted to terminate a pregnancy for specific reasons. One doctor’s opinion may result in a pregnancy termination up to 12 weeks along, and two doctors’ opinions may result in a termination up to 20 weeks along. Only in cases where the pregnant woman’s life is in danger, where there is a serious risk to her physical or mental health (such as rape or refusal to utilise birth control), or when there are irregularities in the foetus, is a termination allowed.
The primary motivation behind the creation of this Act is to assist women who have been sexually assaulted, who become pregnant due to a birth control method that has failed, whose physical or mental health has been endangered by the pregnancy, or who run the risk of having a child that is crippled or may be born with birth defects. The Act also addresses pregnancies involving “lunatics” or “minors,” in which case a guardian’s agreement is accepted in lieu of the woman’s own.
Section 3 of the MTP Act, 1971 allows for a woman’s pregnancy to be terminated if the gestation period is less than 20 weeks or if the gestation period is more than 20 weeks but not more than 24 weeks and the woman’s life or serious physical or mental health is in danger.
Additionally, the Section outlines the process for terminating a pregnancy. It states that the procedure entails consulting with two licenced medical professionals who are qualified to perform abortions and who certify that the woman’s life would be in danger if the pregnancy were to continue, or that it would seriously harm her physical or mental health. According to Section 5(1), a single practitioner’s view is also permitted in an emergency. Depending on the woman’s medical status and the stage of her pregnancy, the Act permits either a medication-assisted or surgical abortion.
The Progress of the Abortion Rights in India and Across the World
The United States decision of Roe v. Wade, is considered to be the milestone judgment on the abortion rights of the women, wherein the Supreme Court of United States for the first time has recognised abortion right as a constitutional right, as an inseparable right enumerated under the right to privacy.
But unlike the United States, India did not adopt the abortion law as a fundamental right for women; instead, a commission led by Shantilal Shah established it. The main objective of the Committee was to review the situation on maternal deaths due to septic abortions. The Committee was obliged to carry out a detailed analysis of the socio-legal and medical aspects of abortion and recommended legalising abortion on both compassionate and medical grounds. Their recommendations led to the Medical Termination of Pregnancy Act, 1971(MTP Act).
The MTP Act, the abortion law in India, is primarily designed after the UK Abortion Act of 1967, wherein, an abortion can only be done on the consent of medical practitioners. The committee expressly opposes the legalisation of abortion for the aim of population control, although that other states saw the proposed legislation as a possible method for doing so. On the other side, it highlights how legalising abortion for demographic considerations could work against the helpful and constructive practice of family planning and contraceptive. Legalising abortion will not only assist save the lives of expectant mothers but also prevent serious harm to their physical and emotional well-being.
In light of the foreseen danger to the lives of pregnant women, on more than one occasion Chief Justice SA Bobde and Justice L Nageswara Rao in Meera Santosh Pal v. UOI and Mamta Verma v. UOI have allowed for the termination of pregnancy by observing: A pregnancy can be terminated only when a medical practitioner is satisfied that a continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to mental or physical health or when there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. If the continuance of pregnancy is harmful to the mental health of a pregnant woman, then that is a good and legal ground to allow abortion.
MTP (AMENDMENT) ACT, 2021- To Address the Limitations covered by the medical liberalisation.
Prior to the MTP (Amendment) Act, 2021, which was passed in the spirit of justice and to safeguard women’s human rights, the main Act stipulated that a single doctor could authorise the termination of a pregnancy up to twelve weeks, while two doctors’ opinions were required for terminations of pregnancy between twelve and twenty weeks.
But unfortunately, simple examination of the black letter law reveals that pregnant woman—including those who have been raped—were compelled to bear the child in situations where the foetus develops abnormalities in the womb, the mother is suffering, and the gestational period has progressed beyond the legal time frame.
In the cases, Nisha Suresh Aalam v. UOI, Priyanka Shukla v. UOI & Ors. and many more have permitted the termination of pregnancy beyond the period of twenty weeks by acknowledging that the Right to Terminate Pregnancy could not be rejected only because the gestation period had extended beyond twenty weeks.
The aforementioned cases, which were brought before the Supreme Court and High Courts to obtain permission to terminate a pregnancy at a time beyond the twenty-week mark due to foetal abnormalities or pregnancies resulting from sexual assault against women, clearly demonstrate how different people’s needs and lifestyles are now from those of the 1970s.
Therefore, the MTP (Amendment) Act, 2021, which enhances the maximum amount for terminating pregnancies, particularly for poor women and in cases of severe foetal abnormalities, is long overdue given the advancements in medical science.
Previously limited to 12 weeks of gestation, the MTP Act now permits MTP to be carried out with the opinion of a single RMP until 20 weeks of gestation. Additionally, based on the judgement of two RMPs, it has permitted MTP to be carried out in situations involving:
- Rape/incest/sexual assault.
- Minors.
- A change in marital status (divorce or widowhood) while the pregnancy is still going on.
- Females with physical impairments (major impairment as defined by the 2016 Rights of Persons with Disabilities Act)
- Mentally ill women including mental retardation.
Unfortunately, the choice of allowing a medical termination of pregnancy depends solely on the medical professional’s decision, even though these rules have attempted to legalise the procedure to some extent. These restrictions deprive women of the power over their own bodies, rather than providing them with the Right to Choose and Access Safe Abortions.
Conclusion
In earlier times, abortion was considered a sin in a nation like India that values its culture and history. However, as society and time changed, a new era where patriarchy took hold became apparent, and sex-selective abortion practices emerged in India. The necessity to control abortions in India emerged as a result of this circumstance, and the Indian Penal Code was amended to include rules managing abortions in India. The 1971 Medical Termination of Pregnancy Act was vague and filled with contradictions. The Act was also out of date from a social and scientific viewpoint. Additionally, it did not include single women, which left them with no choice except to seek legal assistance or, in certain cases, end up having dangerous abortions.
However, more women will have direct access to safer pregnancy abortion services because to the prevailing Amendment Act, and those who must end a pregnancy will get fair treatment, respect, liberty, and privacy. The Central Government deserves commendation for taking such a brave stand while balancing it with the various cultural backgrounds, worldviews, and conceptual frameworks that our country embraces. However, the amendment still imposes a number of conditions on women, many of which make it difficult for them to access safe pregnancy terminations.
But there’s still a long way to go before equality is achieved in India, since records show that women are still not allowed to end their pregnancies in order to remain unmarried. Therefore, the development of all these dimensions will only be significant if they are made applicable to and known to Indian judges, who have developed their understanding of them through judicial interpretation beyond the MTP Act, 1971’s obvious requirements.
Frequently Asked Questions
- Why is a medical abortion performed?
Choosing to get a medical abortion depends heavily on your unique situation and is very personal. Concerns about passing on an inherited or congenital condition may lead someone to decide on a medical abortion. A few might wish to stop an unintended pregnancy. Sometimes, doctors treat missed abortions—a miscarriage that hasn’t yet expelled—with the same medication. This may be referred to by your provider as “completing a miscarriage.” Should carrying the pregnancy pose a risk to one’s life, another alternative would be a medical abortion.
- Can a pregnancy terminate after the designated 24-week period, per the latest Amendment Act?
The legislation states that it is illegal to end a pregnancy after the designated 24-week mark. A pregnant woman may, however, request authorization from the court to end her pregnancy under specific conditions. These requests must be strongly supported by evidence of foetal abnormalities or life danger. The supreme court recently approved a pregnancy termination beyond the 24-week mark due to the fetus’s severe abnormalities. However, there are numerous cases where the court rejected this kind of licence.
