Introduction :
Women and their right to sexuality, fertility and reproductive health are seldom considered important enough to be discussed in the mainstream. Such conversations are often silenced due to the looming influence of the patriarchal setup of society in general. The same reflects in the kind of legislations formulated concerning issues related to women.
Abortion is a phenomenon that has been pondered upon since ancient time and continues to be a topic of contention even today because it talks about taking the life of a human. If we look at the traditional arguments in favour of or against abortion, we find the religious nature of conflict and law guiding each respectively. This conflict can be summarized in two terms- Pro-Choice and Pro-Life. Someone who is Pro-Choice believes that everyone has the basic right to decide when and whether to have children. They believe that individuals have unlimited autonomy with respect to their body. Someone who is Pro-Life opposes the idea of abortion. They believe that all humans, including unborn, have a right to live.
They are significantly less worried about the life of a woman who has unintended pregnancy or welfare of an infant after it is born. Women and their right to determine their sexuality, fertility and reproduction are considerations that have seldom, if ever, been taken into account in the formation of policies related to abortion. The right to undergo an abortion is a matter of individual conscious choice for the woman concerned. Control over their own bodies and the reproductive process is vital for the women to own full dignity and personhood.
From outright criminalising abortion to allowing it on specific grounds and now finally approaching abortion laws more liberally, we have come a long way. Despite this liberal outlook, there’s a lot that needs altering.
History Of Abortion Laws In India :
British India dubbed abortion as a ‘criminal act’ in the Indian Penal code 1860 and the Code of Criminal Procedure 1898. The colonial regime made it a punishable offence for both the woman or any other person who intended to do so with or without the women’s consent.
Sections 313 to 316 are specified under the title: ‘Of the causing of miscarriage, of injuries to unborn children, of the exposure Of infants, and of the concealment of births’ in the IPC 1860.
The same elaborately explain the term ‘causing miscarriages’ of an unborn child both in gestation and after. These sections allowed only medically indicated abortions done in ‘good faith’ to save women’s lives.
In fact, at the start of the twentieth century, abortion was illegal in almost every country of the world. But Roe v. Wade, a landmark judgement by the Supreme Court of the United States concerning the legality of abortion, changed the way other countries perceived abortion laws.
The judgement brought down restrictive abortion laws, upholding the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.
The Fourteenth Amendment to the U.S. Constitution provides ‘Right to Privacy’, which also protects a woman’s rights to choose whether or not she should have an abortion. Soon after this judgement, European countries began to legalise abortion.
However, the relaxation in abortion laws in India began in 1964. Owing to high maternal mortality and morbidity caused due to unsafe abortion, in the 1960s, the Indian Government had appointed the Shah Committee, headed by Shantilal Shah. The Committee was set up to review the situation on maternal deaths due to septic abortions.
The Committee carried 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).
Medical Termination of Pregnancy Act, 1971 (MTP ACT) :
This Act consists of 8 sections which deal with various aspects such as place, time and circumstances in which termination may be done by a registered medical practitioner. The MTP Act confers full protection to a registered medical practitioner against any suit for any damage caused to a woman seeking abortion which is done in good faith. It also allows pregnancy to be terminated, if the length of the pregnancy does not exceed 12 weeks, on the approval of a registered medical practitioner and if the length of pregnancy exceeds 12 weeks and but does not exceed 20 weeks, on the approval of two registered medical practitioners. The grounds for termination include risk to the life or grave injury to the physical or mental health of a pregnant woman, or there is a substantial risk that if the child is born, it would suffer from a physical or mental abnormality or pregnancy as a result of a failure of contraception to a married woman, or if pregnancy occurs from any sex crime such as rape.
It was also stated that no termination of pregnancy shall be done at any place other than Government hospital or place approved by Government. The MTP Act was revised many times to eliminate the time-consuming procedure and make it more flexible and make services for abortion readily accessible to all. However, the MTP Act 1971 is obsolete now, given the societal changes and technological advancement. According to a report published in Lancet Global Health, India recorded 15.6 million abortions in 2015, out of which 78% of the total abortion occurred were outside the health facilities, 48%, of pregnancies were unintended and 0.8 million women used unsafe methods for abortion, putting their health and lives at risk. There are various reasons for unsafe abortions like stigma, confidentiality, lack of awareness, anonymity, lack of availability of services etc.
The legislation got revised in 1975 to eliminate time-consuming procedures and make services accessible.It was further amended in 2002, 2005 and 2020.
Loopholes Or Faults In The Medical Termination Of Pregnancy Act 1971 :
The Act states that when the length of pregnancy is within twelve weeks, the opinion of one medical practitioner is required to abort the foetus lawfully. And if the length of pregnancy is between twelve to twenty weeks, the woman needs the opinion of two medical practitioners to proceed with the abortion.
However, women in rural areas struggle to find registered medical practitioners who have all the facilities and training to provide abortion services. The All-India Rural Health Statistics (2018-19) indicates there are only 1,351 gynaecologists and obstetricians in community health clinics in rural areas across India. And we fall short of 4,002, which means there is a 75% shortage of qualified doctors.
India lacks a sufficient number of trained medical personnel as compared to our population. The scarcity of medical practitioners and services often force women to resort to unsafe ways to abort and encourages quackery.
One of the ways to resolve this issue would be to train more service providers. The same could be done by increased staffing, simplifying procedures for abortion, making people aware and designing legislations that can keep up with technology.
Technology in medical science is far ahead of when the MTP Act was promulgated in 1971. This Act was also ignorant towards the change in technology, and the same was not recognised until the Medical Termination of Pregnancy (Amendment) Act 2020 was staged ahead of the parliament.
Advancements in technologies in medical science have enabled streamlining procedures for abortion in late pregnancy. Now, doctors can detect defects in the foetus even after the twentieth week. However, this law allowed abortion up to the twentieth week, leading to scratchy implementation and a stuck-up approach.
Several petitions were filed before introducing the MTP (Amendment) Act 2021, highlighting the irregularities in the principal Act 1971. However, even the courts have responded erratically. Therefore, we have a confusing set of judgements and orders, all of which have been different in their approach to implementing the MTP Act 1971.
In Nikhil D. Dattar v. Union of India, Section 3 and 5 of the MTP Act was challenged on the ground of non-inclusion of eventualities vires of the Act. In this case, the foetus was diagnosed with a complete heart block in the twenty-sixth week of pregnancy. And thus, the woman had sought termination of pregnancy.
The petitioner argued that Section 5(1) of the MTP Act should be read down to include the eventualities in Section 3. And consequently, a direction should be issued to the respondents to allow them to terminate the pregnancy. But, the court said that it was not empowered to decide upon a statute and relief under Section 5 can only be granted if it can be proved that non-termination of pregnancy would threaten the life of the mother. Thus, this petition was dismissed.
However, in a similar case, the Calcutta High Court granted permission to abort a foetus in the twenty-fifth week of pregnancy. Additionally, the Supreme Court permitted a twenty-four-week pregnant rape survivor to go for an abortion in Ms X v. Union of India. This obscurity results in deep anguish for mothers.
Further, the provisions in the MTP Act 1971 were unclear about allowing abortion for unmarried women for pregnancy due to contraceptive failure. This ambiguity needed to be corrected as there is a considerable stigma attached to having a non-marital pregnancy.
Despite such humanistic and liberal legislation ,only due to these faults and decrepancies the majority of women in India didn’t get benefited and still lack access to undergo a secure abortion. There are several issues that arise from this legal framework under the MTP Act.
Major Hindrances in executing Medical Termination Of Pregnancy Act 1971 :
POCSO Act and PCPNDT Act –
Prevention of Children from Sexual Offences Act,2012(POCSO Act) and the Pre-Conception Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT) prove to be significant barriers in implementing the MTP Act 1971. Due to these two laws, doctors often hesitate in providing abortion services to women and young girls.
POCSO Act makes it legally obligatory for doctors attending to a termination of a pregnant minor to report such cases to law enforcement authorities. If the doctor does not report and goes ahead with the abortion process, they can be legally prosecuted.
As a result, minors do not prefer going to registered doctors and carry out abortion in an unsafe manner. This defeats the entire purpose of the MTP Act, violating the clause of ‘anonymity’.
The judicial response concerning termination of pregnancy is one of the many concerns that hinder the implementation of the MTP Act. The sluggish nature of administrative and judicial responses have often led to delay beyond reparation. For instance, in Ms Z v. The State of Bihar and Others, a pregnant woman from Patna in Bihar had HIV. She was homeless and came to know about the pregnancy only seventeen weeks later.
First, the hospital denied her request, which itself was illegal since the woman was an adult and less than twenty-week pregnant. Second, the high court denied her termination. And finally, when the Supreme Court recognised that she had been violated, it was already more than twenty-six weeks to her pregnancy. And her plea for abortion was rejected on exceeding the gestation limit under the law.
According to the 2018 report by the Centre for Reproductive Rights titled ‘Ensuring Reproductive Rights’, this case was one of the thirty petitions submitted in the Supreme Court in nine years by women whose gestational limit had exceeded.
Furthermore, between May 2019 to August 2020, 243 appeals were filed before high courts and one appeal before the Supreme Court. These numbers were high, even though the Act explicitly mentioned that woman pregnant before the twenty-week gestation period could abort. This rate could be increasing due to the lack of awareness among women from socially and economically vulnerable sections.
Therefore, there is a dire need to fast-track these petitions, giving a petitioner a fair chance to abort safely.
The Medical Termination Of Pregnancy (Amendment) Act, 2021 :
Addressing some concerns, the Indian Government introduced the MTP (Amendment) Bill in March 2020. The same was passed in both Lok Sabha and Rajya Sabha in March 2021. The Medical Termination of Pregnancy (Amendment) Act 2021 increases the permissible gestation period to 24 weeks, provided it requires the approval of two medical practitioners. This is done keeping in mind the rape survivors, victims of incest and other vulnerable women such as minor, differently-abled etc. The amendment also allowed all women, and not just married ones, to seek abortion in the case of contraceptive failure.
In addition to that, the upper gestation limit would not be applied in cases of significant foetal abnormalities diagnosed by the Medical Board. This addresses the maternal mortality and morbidity arising from unsafe abortion. Women will also be spared from the agony of seeking permission from the court as there are many cases where concerned women don’t realize in the first five months that they are pregnant and time runs out on them. The bill also emphasized on maintaining the confidentiality of all women undergoing termination of pregnancy. This is a great move for a country like India where abortion is still associated with social stigma, and considered a taboo and will ensure dignity, autonomy, confidentiality and justice for women. India will now stand as one of the nations with a highly progressive law which allows legal abortions on a broad range of therapeutic, humanitarian and social grounds.
Conclusion :
Almost all countries disapproved of this practice until the women rights movement came to light. It ultimately took some landmark judgments to wake up the rest of the world of its slumber.
Another issue is that some religions raise moral objections to terminating a pregnancy by abortion. A woman undergoing a personal ethical dilemma needs to bear added pressure from religious institutions and their families.
However, these legislations could not change the societal composition of countries and erase the stigma attached to a woman openly talking about her rights regarding her body. In India, the baggage of societal evils is seen to be more compared to the impact of a law looking after woman’s rights.
For a conservative society, the term ‘abortion’ is viewed in a negative connotation. Abortion in the case of an unmarried woman is deemed to be totally unacceptable. Several times such rudimental notions subject young single/unmarried women to physical and mental tormenting, to the extent that many women lose their lives.
Though the awareness of family planning is gradually increasing, there is a need to speed up the same and process it on a broader scale. There is also a need to speak aloud on sex, abortion, reproduction and reproductive health within family institutions, especially in tier-three and four cities and villages.
Some oppose abortion as a means of taking human life, advocating that no human should be allowed to take the life of another even if the latter is an unborn child. Although this is righteous, it is also argued that abortion should be a women’s own prerogative as it is her body.
Those advocating for women’s right often argue that the foetus is not an independent entity of life during the first trimester of pregnancy, as he cannot survive independent of the mother. Therefore, abortion does not amount to murder or taking away human life. Another argument often advanced is that early motherhood could have adverse effects, including financial, mental and social for the mother and child.
The law has to take care of the liberty of the mother as well as the public interest. Lastly, the fact that India has legalized abortion does not necessarily mean that it is always available to every pregnant woman who would like to terminate her early pregnancy. The reason for this is that the majority of the population, being in rural areas and far away from government hospitals and clinics, have no access to the facilities promised by the government. And equally important is the fact that it will take some time before the information that abortion is now legal and available reaches all the needy mothers in India. The truth is that in today’s era when women have finally come at par with the men and our Constitution boasting of Equality and Right to life and personal liberty then women should get full right to make their own decisions pertaining to their body and reproductive options. There could be a lot of reasons why a woman would want to terminate their pregnancy, their could be financial difficulties, yet it could be a pregnancy before marriage or it could be a third or fourth pregnancy or a pregnancy as a result of incest or rape. These are just a few basic reasons, one must know that pregnancy is not just about child- bearing but it is about child rearing. Raising a child is not a small responsibility; there are a lot of implications that one has to think about; their education and well being.
References :
http://www.legalservicesindia.com/article/2436/legalizing-abortion-in-India.html
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