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An In-Depth Exploration of Abortion Laws

Meaning and introduction
Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

the term abortion, in criminal law, is ordinarily used to describe an intentional termination of pregnancy. The term Abortion in common usage means premature expulsion of foetus during the time of pregnancy.
Abortion is the intentional termination of gestation by any means and at any time during pregnancy from conception to full term.

Abortion' as already noted is the premature termination of pregnancy prior to birth. It is a technique of removing a developing embryo or foetus from the maternal uterus for the purpose of preventing its birth.

What exactly are the intentions of the women seeking abortion is surely an empirical question. In absence of specific survey, some indications that can be inferred are:
  1. practice of female foeticide prompted by existence of dowry system
  2. financial burden and hardship
  3. preference of male children
  4. parents' likelihood to stop bearing children after obtaining a son than after obtaining a daughter -that is to continue to reproduce to obtain a boy
  5. premarital sexual activities by teenage girls
  6. pregnancy caused to sex workers because of men's reluctance to use condoms
common reason-socioeconomic concerns-includes disruption of education or employment; lack of support from the father; desire to provide schooling for existing children; and poverty, unemployment or inability to afford additional children. In addition, relationship problems with a husband or partner and a woman's perception that she is too young constitute other important categories of reasons. Women's characteristics are associated with their reasons for having an abortion: With few exceptions, older women and married women are the most likely to identify limiting childbearing as their main reason for abortion.

The Constitution of India:

The Constitution of India also talks about the idea of abortion. As stated before, the Right to abortion might come under Article 21, if subjected to interpretations. Article 21 dictates the Right to life and personal liberty. It can also be understood that a woman, who has been given such a right, might enjoy her personal liberty and alter her body in any way she can. She might do anything to her body, to suit laws governing abortion beyond India.

Abortion was being practised earlier by many. Because it was illegal, it was practised in a clandestine manner. The passing of the Medical Termination of Pregnancy Act made medical termination of pregnancy legal, with certain conditions for safeguarding the health of the mother.

The Indian Penal Code, 1860:

The IPC, 1860 taking into consideration the social, emotional and medical implications of abortion, declares induced abortion as illegal all throughout India. Section 312 of the Indian Penal Code, 1860 spells out abortion as causing miscarriage. It applies to a woman who carries out miscarriage on purpose.

However, the word abortion is nowhere used in this section. Abortion would give miscarriage an essence of intention. Miscarriage technically would mean spontaneous abortion, whereas, voluntarily causing miscarriage, which is criminalised under Section 312, will stand for criminal abortion.

A clear division between the two is lacking. However, the same section declares Therapeutic abortion as legal. In case there is danger pertaining to the life of the mother, the pregnancy can be discontinued. The unborn child in the womb must not be destroyed unless the destruction is for the sole purpose to preserve the life of the mother.

Abortion as a Fundamental Right:

In Suchita Srivastava and v/s Krishnanan, the Supreme Court and the High Court of Madras have respectively affirmed women's rights to choose in the context of continuing a pregnancy. In Suchita Srivastava, the Supreme Court clearly held that the state has an obligation to ensure a woman's reproductive rights as a component of her article 21 rights to personal liberty, dignity, and privacy.

The Indian Penal Code
Section 312 to 316 of the Penal Code deal with the penal abortions. These sections have been placed under the chapter of offences affecting human body.

Section 312 of the Penal Code provides that a person who voluntarily causes a miscarriage to a woman with child, will be punished with the imprisonment for three years or fine or with both. The offence is not cognizable, bailable and not-compoundable. If the woman is quick with child the sentence may go up to seven years and fine, unless the miscarriage is caused in good-faith for saving the life of the woman the Constitution.

Section 313 of the Indian Penal Code makes it punishable to cause miscarriage without the consent of the woman. To appreciate fully the implications of section 312 the words "voluntarily," "with child" "good-faith" and "quick with child" may understood first. Section 39 of the Penal Code defines "voluntarily," as "a person is said to cause and effect "voluntarily" when he causes it by means whereby, he intended to cause it, or by means which, at the time of employing those means, he knew or had reasons to believe to be likely to cause it."

It would be noted that word "voluntarily" has been defined in relation to the causation of effects and not to the doing of acts form which those effects result. It has been given a peculiar meaning differing widely from its ordinary meaning.

section 312, section 313 draws no distinction between "woman with child" and "woman quick with child", and punishes only the person who causes miscarriage, obviously because woman is not a consenting party. The prosecution has to prove all the ingredients of the offence of section 312 and also the absence of the women's consent. The offence is cognizable, not bailable, and not compoundable and is triable by the court of sessions.

When an accused intending to cause only miscarriage to a woman with child causes her death, he is convicted under section 314 of the Penal Code.

Under section 316 of the Indian Penal Code the offender need not necessarily cause abortion or intend to kill the inner life. But, if he does an act likely to cause its death though neither intended nor desired, he would be guilty of this offence.

This offence can only be committed after the woman became 'quick' with child, and before the birth. Thus, under this section, causing of death of a quick unborn child [advanced stage of pregnancy] by an act amounting to culpable homicide is punishable up to ten years of imprisonment and fine. The offence under section 316 is cognizable, not bailable, not compoundable and triable by the Court of Session.

The Medical Termination of Pregnancy, 1971

In our country, unwanted pregnancy sets forth a problem and this problem amounts to very fatal consequences in case of unwed girls due to social pressure. Pregnancy without wedlock is counted to be a strange and disgraceful phenomenon in our country.

The MTP Act 1971 accords importance to the consent of an adult woman, aged 18 years and above for terminating her pregnancy and a physician is to play a central role in counselling the pregnant woman about the relative merits and demerits of continuation or termination of pregnancy in a given case. And whoever performs MTP without proper consent of pregnant woman shall be prosecuted.[21]

This Act provides for the termination of pregnancy up to 12 weeks of gestation on the basis of the opinion of single registered medical practitioner, and pregnancy between 12 and 20 weeks of gestation on the basis of two registered medical practitioners

In Nikhil D. Dattar v. Union of India, section 3 and 5 of MTP Act was challenged on the ground of non-inclusion of eventualities vires of the Act. In this case the foetus was diagnosed for complete heart block thus the Petitioner, in her twenty sixth week of pregnancy, had sought termination of pregnancy.

The petitioner contended 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 the petitioner to terminate the pregnancy.

While dismissing the petition the court further held that since twenty-six weeks of pregnancy has already passed the court could not pass any direction for exercise of right under section 3. This case further reiterated that the physical and mental trauma which may be experienced by women in such circumstances. The case also highlighted the ethical issue faced by the doctors in similar situations.

The Protection of Children from Sexual Offenses Act, 2012
The Protection of Children from Sexual Offenses Act, 2012 establishes the age for consensual for sexual intercourse at 18. Therefore, POCSO treats all pregnant women under the age of 18 as rape survivors and mandates the provider to report the abuse.

Pre-conception Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT Act)

The objective of the PNDT Act was therefore twofold. First, to regulate pre-natal diagnostic techniques and limit it to the detection of genetic/ metabolic disorders, chromosomal abnormalities, congenital malformations or sex-linked disorders. Secondly, to prevent the use or rather misuse of such technology for the purpose of pre-natal sex selection which in turn would lead to sex-selective abortions.

In Suchita Srivastava and v/s Krishnanan, the Supreme Court and the High Court of Madras have respectively affirmed women's rights to choose in the context of continuing a pregnancy. In Suchita Srivastava, the Supreme Court clearly held that the state has an obligation to ensure a woman's reproductive rights as a component of her article 21 rights to personal liberty, dignity, and privacy.

On January 22, 1973, the U.S. Supreme Court, in the famous Roe v. Wade decision, stated that the ``right of privacy...founded in the Fourteenth Amendment's concept of personal broad enough to encompass a woman's decision whether or not to terminate her pregnancy.''

The Court held that through the end of the first trimester of pregnancy, only a pregnant woman and her doctor have the legal right to make the decision about an abortion. States can restrict second-trimester abortions only in the interest of the woman's safety. Protection of a ``viable foetus'' (able to survive outside the womb) is allowed only during the third trimester. If a pregnant woman's life or health is endangered, she cannot be forced to continue the pregnancy.

The MTP Act Amendment Draft

An amendment was proposed in the MTP Act by Ministry of Health and Family Welfare in October 2014. The bill proposed certain very valid propositions, such as extension of the legal abortion limit to 24 weeks, giving the right to legal abortion to every woman despite her marital status, elimination of the need of a second doctor's sign-off beyond 12 weeks and so on.

The primary objective of the bill was not just to empower women but to reduce the number of unsafe abortions that are carried out in India (which were sadly more than the number of legal abortions as per the Abortion Assessment Project in 2000 to 2004). The draft did some rounds in the cabinets and to the Prime Minister's office, but was stalled.

What we need today is a stronger recognition of women's agency. While 20 weeks pregnant, it is not just insensible to expect women to flock to court b You can't choose to abort; only the doctor gets to decide

It is solely at the discretion of the doctor that a woman may or may not undergo abortion. It is not a right that every woman can exercise solely by her decision. Also, if the abortion is to take place within the first trimester (up to 12 weeks of conception), the woman only needs one doctor to sign off. However, if she exceeds the 12-week bar (from 12 to 20 weeks), she needs two doctors to sign-off. Ut also insensitive and a denial to them of the right to their own bodies.

If you are an adult, you do not need your family's or husband's consent

Often, especially in a country like ours, women are asked to have the consent of their husbands or families before they get to the operative table. However, the MTP Act gives adult women the autonomy to decide for themselves. A doctor cannot ask for anybody's consent except for the mothers.

The Right to Privacy applies to Abortion

Yes, that's true. In a benchmark judgement, the Supreme Court of India said, "A woman's freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy".

Why The 20-Week Bar?
As per the MTP Act, abortions can only be carried out till 20 weeks of conception. This rule, when it was incorporated, was put in place in order to prevent the gender prediction testing and hence, sex-selective abortions, which then could only be done post the 20-week mark.

However, what the MTP Act fails to realize now is that with the advancement in technology, this test can now be performed much before. The sex of the baby can be determined as early as seven weeks of pregnancy through a new blood test. It can be predicted around the 10th to 12th week through chorionic villus sampling (CVS). It can also be determined between 15 to 20 weeks by amniocentesis.

Abortion After Legalization
Though Roe v. Wade left a lot of power to doctors and to government, it was an important victory for women. Although the decision did not guarantee that women would be able to get abortions when they wanted to, legalization and the growing consciousness of women's needs brought better, safer abortion services. For the women who had access to legal abortions, severe infections, fever, and haemorrhaging from illegal or self- induced abortions became a thing of the past.

Women health care workers improved their abortion techniques. Some commercial clinics hired feminist abortion activists to do counselling. Local women's groups set up public referral services, and women in some areas organized women-controlled non-profit abortion facilities. These efforts turned out to be just the beginning of a longer struggle to preserve legal abortion and to make it accessible to all women.

Legal but Out of Reach for Many Women

We have learned that legalization is not enough to ensure that abortions will be available to all women who want and need them. In addition to a lack of facilities and trained providers, burdensome legal restrictions, including parental consent or notification laws for minors and mandatory waiting periods, create significant obstacles. A minor who has been refused consent by a parent may have to go through an intimidating and time-consuming judicial hearing.

Mandatory waiting periods may require a woman to miss extra days of work because she must go to the clinic not once, but twice, to obtain an abortion. If travel is required, this can make the whole procedure unaffordable. In other words, for millions of women, youth, race, and economic circumstances together with the lack of accessible services--especially for later abortions--translate into daunting barriers, forcing some women to resort to unsafe and illegal abortions and self-abortions

  • April 2020: Kerala HC allowed abortion for a 14-year-old rape survivor who was 24 weeks pregnant. As per Live Law, the Division Bench observed that the "right to make reproductive choices is a facet of personal liberty under Article 21. The said choice would extend to deciding whether or not to carry her pregnancy to its full term."
  • February 2022: Calcutta HC allowed a pregnant woman to terminate a 35-week-old foetus.
    A 36-year-old pregnant woman was permitted to terminate her pregnancy after 35 weeks, as the child would be born with a spine condition.
    The medical board of the SSKM Hospital stated that the child had a poor chance of surviving or enjoying a normal life, according to She the People.
    The judge stated, "Considering the entire gamut of facts and circumstances, this court permits the petitioner to medically terminate her pregnancy at an authorised hospital and/or medical facility."
  • December 2021: Karnataka HC permitted rape survivor to terminate pregnancy over 24 weeks.
    The Karnataka High Court permitted a rape survivor, who was a minor at the time of the crime, to get an abortion after crossing the 24-week period mandated by law. The Dharwad Bench allowed the girl to get an abortion considering various factors, including the fact that she was being raised by a single mother, and was still studying at the time.
  • February 2022: Uttarakhand HC permitted a 16-year-old rape survivor to terminate a 28-week-old foetus.
    The High Court held that the 16-year-old had the right to terminate her pregnancy on the ground of rape.
    The Medical Board had said that as was more than 24 weeks pregnant, an abortion could cause 'substantial risk'
    The single-judge bench held that, "Right to life means something more than survival or animal existence. It would include the right to live with human dignity."
  • March 2022: Kerala High Court permits termination of 31-week pregnancy of 10-year-old rape survivor.

In the case of a 10-year-old pregnant girl who was allegedly raped by her father, the Kerala High Court allowed the termination at 31 weeks. The girl's mother had moved the petition.

"The alleged culprit is her own father…. I am sure that the long arm of our legal system will punish him in a manner known to law. Since the victim child is only 10 years, there is a chance for medical complications to her health," said the Judge, as per The Indian Express.

As there was an 80% chance of the baby surviving, as per the Medical Board, the court said that if the baby was alive, the state government and Child Welfare Committee should take responsibility.

There is no freedom, no equality, no full human dignity and person-hood possible for women until they assert and demand control over their own bodies and reproductive process…The right to have an abortion is a matter of individual conscience and conscious choice for the women concerned. -Betty Friedan.

Before concluding and drawing an inference, it would be relevant to understand the basic aim behind legislating with regards to abortion. One can deduce that the foremost objective is to provide all women with quality abortion care, which is sensitive to their needs by increasing aspects such as easy accessibility and affordability to safe abortion services.

There is also a need to amend POCSO Act to do away with its clash with MTP Act. India's medical and legal infrastructure too needs improvement. Therefore, the need of the hour is for government and elements of civil society to come together and improve the substantive .and implementation elements of India's abortion laws and policy.

There is a need to enhance awareness of both contraceptive and abortion services, especially among adolescents, within the larger context of sexual and reproductive health, integrating strategies and interventions within value systems and family and gender relations. For these policies to be implemented effectively, they need to be backed by political will and commitment in terms of adequate resource allocation, training and infrastructure support, accompanied by social inputs based on women's needs.

Written By: Deepti Dash

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