India's progressive approach towards abortion laws

The Article 'India's progressive approach towards abortion laws' by Radhika Mittal stresses the progressive approach adopted by India in developing and upgrading robust abortion laws. The article is divided into various heads containing details as to what is abortion, what the laws relating to abortions, how and why they came into existence, what is the international standing on abortion laws, the recent amendments, and landmark judgments of the Hon'ble Courts.

Introduction

Abortion is a simple healthcare intervention by medical professionals using medications or surgical procedures. The procedure of abortion must be initiated on the recommendation of highly skilled medical professionals using the appropriate procedures, suitable to the duration of pregnancy, complications in termination, and the gravity of the need for abortion. Maternal death is mostly caused by abortion when it is carried out unsafely which in turn, causes physical and psychological health issues and also, social and economic burdens for women, communities, and the health system. However, it can be prevented by having a prompt, secure, and low-cost abortion.

What is Abortion?

In layman's language, Abortion can be termed as a process wherein the embryo or fetus is removed from the womb of a woman. As per Britannica, Abortion is the expulsion of a fetus from the uterus before it has reached the stage of viability (in human beings, usually about the 20th week of gestation). Therefore, it can be said that Abortion is the termination of pregnancy so that the birth of the child does not take place. It is also known as the termination of pregnancy. Abortion can only be done by a licensed medical practitioner or surgeon.

An Abortion can be effectuated in the following ways, these are:

1. Medical Abortion: Abortion takes place by serving medical pills to the respective woman. The prescription has to be given only by a registered medical professional.
2. Surgical Abortion: Abortion takes place through a procedure to remove the fetus from the uterus.
3. Spontaneous Abortion: Abortion takes place at once, i.e., without an intention on the part of the concerned woman. This type of abortion is often termed Miscarriage. The reason for spontaneous abortion could be any, ranging from a genetic defect or disease to biochemical incompatibility.
4. Induced Abortion: In this type, the abortion is effectuated purposefully, i.e., the intending woman seeks abortion to achieve a certain desired intention.

When, How, and Why is Abortion Legal in India?

Abortion was illegal in India till 1960. There is a penal provision in Section 312 of The Indian Penal Code, 1860, for voluntarily causing miscarriage. It prescribes punishment for a term of three years or with a fine or both, in case a person, including the woman, causes herself to miscarry. In 1964, the government constituted Shantilal Shah Committee under the headship of the medical professional Dr. Shantilal Shah to ascertain and recommend whether India needs a law for abortion or not to which the committee responded positively.

In pursuance of the recommendation of the report, the Parliament passed a medical termination bill in 1971. The Medical Termination of Pregnancy (MTP) Act, 1971 came into force on the 1st of April 1972 and applied to all of India except the state of Jammu and Kashmir. The recommendations were based to reduce unsafe abortions and maternal mortality rates.

The need was felt to make abortion legal in India to liberalize access to abortion because women were using unsafe and dangerous ways to terminate their pregnancy in fear of being prosecuted under the criminal provisions.

International Standing

The different country stands on different footing while dealing with abortion laws. Some nations permit abortion while some penalize it. Some nations allow abortion in certain exceptional cases. Around the globe, 50 countries allowed abortion to save the mother's life.  Countries allow abortions for the satisfaction of two conditions: one being to save the life of the mother and the other being, for any specific reason like in cases of rape or incest, because of fetal impairment, or for social or economic reasons. And three-in-ten countries (58) allow abortions on request or for any reason, although many of these states do not allow women to terminate their pregnancies after a certain point (e.g., 20 weeks).

In June 2022, The Supreme Court of the United States, in the Roe v. Wade(1973), judgment, took away American women's long-preserved legal rights to safe Abortion. Millions of women lost their right to choose and get abortions.

Indian Laws on Abortion with Latest Amendment

Abortion has been legal in India since the early 70s with the Medical Termination of Pregnancy Act, 1971. Before the inception of this law, the Indian Penal Code, of 1860 was the governing law in the case of abortion. The difference between these two laws is that the former legalizes abortion, and the latter criminalizes abortion. Medical Termination of Pregnancy Act, 1971 was passed by the Government of India on the recommendation of the Shantilal Shah Committee, 1964, which recommended legalizing abortion in India to prevent the loss of lives of women. Medical Termination of Pregnancy Act, 1971 provides a legal framework to terminate pregnancy in certain cases. A woman above the age of eighteen can abort the child with her consent up to 20 weeks of gestation.

Only a licensed and registered medical institution and practitioner can perform abortions in India. For terminating a pregnancy up to 12 weeks from conception, only a single registered medical practitioner's opinion is required. However, for terminating a pregnancy of 12-20 weeks from conception, the opinion of two registered medical practitioners is required. Abortion is permitted in the following cases:

1. the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to physical or mental health; or

2. 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.

The original Medical Termination of Pregnancy Act, 1971 has been revised in 2021 and the new Medical Termination of Pregnancy (Amendment) Act 2021 was passed which expanded the horizon of the old act on humanitarian and social grounds. The new Amending act brought remarkable changes in the following provisions:

1. Applicability: The old MTP Act, 1971, only applied to married women. However, the new MTP Amendment Act, 2021 also covered unmarried women in addition to a married woman.

2. Gestational Age Limit: The old MTP Act, 1971 allowed for the termination of pregnancy only up to 20 weeks. However, the new MTP Amendment Act, 2021 permits termination up to 20 weeks for rape survivors and beyond 24 weeks for substantial fetal abnormalities.

3. Opinion of Medical Practitioner: According to the new MTP Amendment Act, 2021, for terminating a pregnancy of up to 20 weeks (earlier 12 weeks) from conception, only a single registered medical practitioner's opinion is required. However, for terminating pregnancy of 20-24 weeks (earlier 12-20) weeks from conception, the opinion of two registered medical practitioners is required and for beyond 24 weeks, the approval of the medical board is required.

4. Breach of Confidentiality: Fine of Rs. 1,000/- in old MTP Act, 1971 and Fine and/or Imprisonment of 1 year in new MTP Amendment Act, 2021.

Rights of Unmarried Women in case of abortion

An earlier unmarried woman was kept out of the preview of the Medical Termination of Pregnancy Act, 1971 and they were not having a legal right to abortion. However, with the introduction of the Medical Termination of Pregnancy (Amendment) Act 2021, unmarried woman is given the legal right to abortion. An unmarried woman can now legally abort their child in certain circumstances. The recent Medical Termination of Pregnancy (Amendment) Act 2021 brought this remarkable change and made accessible safe abortion services, irrespective of one's marital status.

In the case of termination of pregnancy of an unmarried woman, there are two categories- minors and adults. The unmarried adult woman can terminate the pregnancy with her consent. However, a minor unmarried cannot terminate her pregnancy without the consent of her guardian that too after giving sufficient reasons.

In the most reason case of X v. The Principal Secretary, Health and Family Welfare Department(2022), Supreme Court held that

"There is no basis to deny unmarried women the right to medically terminate the pregnancy when the same choice is available to other categories of woman. "

Recent Landmark Case Laws

In Suchita Srivastava v. Chandigarh Administration (2009), it was held that

"A woman's right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution. She has a sacrosanct right to bodily integrity."

In Justice K.S. Puttaswamy (Retd.) v. Union Of India And Others (2017), the court recognized the constitutional right of women to make reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution.

Similar judgments were passed by the Supreme Court in other cases where pregnancies were beyond 20 weeks and the fetuses had various medical conditions and anomalies, resulting in a high risk to the fetus and the mother (Tapasya Umesha Pisal v. Union of India(2018): [24 weeks]; Meera Santosh Pal v. Union of India(2017):  [23 weeks]; Mamta Verma v. Union of India(2017):  [25 weeks]). In all these cases the Supreme Court referred the matters to a Medical Board and gave its decision based on the opinion of the Medical Board.

Swati Agarwal & Ors. v. Union of India(2019), The Petitioners filed a PIL challenging the validity of Sections 3(2), 3(4), and 5 of the MTP Act as violative of Articles 14 and 21 of the Indian Constitution. Section 3(2), 3(4)(a), and section 5 were challenged as violative of Article 21. The case is pending before the supreme court.

Conclusion

The progressive approach that India has adopted is a commendable step on the part of the government, be it the Judiciary, Legislative, or Executive wing of the government. Each organ of the government has performed its role to the best of its ability in bringing this much-needed amendment to the Medical Termination of Pregnancy Act, 1971. The government has perfectly balanced this country's rich cultural and social norms to the changing era across the globe.

References

1.  Abortion, Available Here 

2. Abortion, Available Here

3. Report of the Committee to Study the Question of Legalisation of Abortion, Available Here 

4. The role of the Shantilal Shah Committee, Available Here

5. How abortion is regulated around the world, Available Here

6. Medical Termination of Pregnancy Act, 1971, Available Here

7.  X v. The Principal Secretary, Health and Family Welfare Department, Special Leave Petition (Civil) No. 12612 of 2022

8. Suchita Srivastava v. Chandigarh Administration, 2009 (9) SCC 1

9. Justice K.S. Puttaswamy (Retd.) v. the Union Of India And Others, AIR 2017 SC 1096

10. Tapasya Umesha Pisal v. Union of India, 2018 (12) SCC 57

11. Meera Santosh Pal v. Union of India, 2017 AIR SC 787

12. Mamta Verma v. Union of India, W.P.(C) 627/2017

13. Swati Agarwal & Ors. v. Union of India, W.P.(C) 825/2019

14. Roe v. Wade, 410 U.S. 113 (1973)

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