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An Analysis: Abortion Rights In India

Abortion is defined as the termination of pregnancy by various methods such as surgery or medication before the foetus can sustain independently. In India, the procedure of abortion was legalised in 1971. Since then, a woman can undergo abortion under the Medical Termination of Pregnancy Act.

However, despite the favourable legal provisions, the problem lies in the fact that there isn’t enough awareness among the women and abortion is mostly looked upon as a concept associated with disgrace, embarrassment and shamein India. Therefore, this blog seeks to provide an understanding on the abortion rights given to women with special emphasis on legal provisions, landmark judgements and current status in India.

Historical Origin
The Indian Penal code (IPC) was enacted in 1860 which was fundamentally the starting point for laying down stipulations relating to abortion in India. Intentionally induced abortion was considered to be a criminal offence under Section 312 of IPC, exempting only those cases as lawful, where the woman’s life was at risk.

Due to the ongoing liberalisation of abortion all over Europe and America, it certainly started making an effect on India too. On the recommendation of the Central Family Planning Board, Shantilal Shah Committee was formed by the Ministry of Health leading to the passing of the Medical Termination of Pregnancy Bill in 1971.

This Act came into force from 1st April, 1972 and applied to whole of India except the State of Jammu and Kashmir. It laid the foundation for abortion rights for women in India granting them the right to terminate the pregnancy, but it largely lacked the strength and ability to effectively grant autonomy and dignity to women and did not completely provide for safeguard of the health of the women.

It was more of a protection for doctors conducting ‘medical terminations’ than a comprehensive abortion care for women, since the decision of undergoing a medical termination rests solely on the doctor’s opinion, effectively indicating a lack of autonomy for women.

For more than five decades, abortion decisions in the country were governed by the 1971 Act, and the the abortion law was first briefly amended in 2002 to allow for the use of the then-new medical abortion pills.

It was in March 2020 that the Medical Termination of Pregnancy (Amendment) Bill, 2020 was introduced in the Lok Sabha, extending the scope of the previous Act thereby bringing various policies, though despite the changes, the law is yet to recognise abortion as a woman’s choice that can be sought on-demand, as is the practice in more than at least 70countries.

Medical Termination Of Pregnancy (Amendment) Act, 2021

The 1971 Act was implemented with the purpose to give abortion rights to women but not with the intention of legalising abortion. Abortion remained a taboo as such in spite of all that was said and done. The amendment of 2021 brought in certain positive changes which are important to note.

The provisions of the act include termination of pregnancy up to 20 weeks in those cases where occurs a dysfunction in contraceptive methods or when a medical practitioner feels that there is a need to due to abnormalities. It also grants unmarried women the right to terminate pregancies.

Special provisions have been made for the medical opinion required for the termination; in order to terminate within 20 weeks, opinion of one medical practitioner is sufficient, but in those cases where the termination period lies between 20-24 weeks, the law requires that two medical practitioners must be consulted. It seeks to provide confidentiality in order to protect the dignity and status of women who decide to abort. This Amendment Act aims at protecting the freedom of choice of women and ensure dignity and justice to some extent, but not fully.

However, the amendment act also falls short of the power to address various issues which need appropriate legal framework, especially, the true legalization of abortion, as it is the woman’s choice over her life. The grant of the said right in the absolute conflicts with the obligation of the state is obliged to take all measures in order to maintain the fundamental right to life as well to a great extent.

This conflict is seen as a major hindrance in expanding the scope of this act. The Act also mandates that the abortion must be medically performed by a doctor. Considering India which has a huge population of rural areas, this provision makes the process of abortion extremely difficult due to shortage of doctors, especially in rural areasand remotely rural areas.

Another issues that remains is the duration for termination which has been granted. The stipulated maximum duration, i.e., 24 weeks beyond which the woman cannot resort for abortion. It has been observed that in many cases of rape, is left with no option if the pregnancy has exceeded 24 weekswithout abortion. However, again, it is noteworthy that there is also no upper gestation limit for abortion in case of foetal disability if so decided by a medical board of specialist doctors

According to a 2018 report, every day about 13 women die in India because of unsafe abortion-related causes, and nearly 6.4 million pregnancies are terminated every year and unsafe abortion is the third leading cause of maternal deaths in the country. A prominent recent research said that more than 80 per cent of women still do not know that abortion is legal in the country.

It clearly indicates that this Act was primarily made keeping in mind the medico-legal perspectives, whereas,the right which must be embodied was left largely unattended. The field of medical technology is a fast-growing field with rapid developments every single day and the numbers are staggering, making awareness of abortion laws the need of the hour.

Landmark Judgements On Abortion Rights In India

One of the historic judgements by the US Supreme Court, Roe v/s. Wade stands to be the stepping stone towards the legalising of abortion. In this case, the US Supreme Court ruled that aborting was protected by the right to privacy and the State would take all measures in order to protect the dignity, health and privacy of the pregnant woman who wish to abort.

This case served as a torchbearer and helped other countries to recognise abortion rights as well. After the introduction of the MTP Act in 1971, various cases came up which demanded the expansion of the duration of abortion beyond 20 weeks. The following cases highlight the landmark judgements which deal with termination of pregnancy but these cases seem to be dependent on the medical board which takes the duty to access the physical as well as the mental health of the pregnant women.
  • Suchita Srivastava v/s. Chandigarh Administration, 2009
    In this particular case, a mentally retarded woman was raped which therefore led to her pregnancy. The respondent approached the court seeking termination of pregnancy. The High Court directed the termination on the grounds that she was mentally retarded and an orphan due to which there was nobody to look after her and her child.

    The matter on reaching the Supreme Court took an opposite turn as the apex court ruled that the termination beyond the completion of 20 weeks could be detrimental for the woman’s health and the consent of the woman was the most important element. It also held that Article 21 has a broad ambit including the right of the woman to make reproductive choices. Therefore, termination was denied here as it wouldn’t be in the "best interest" of the victim.
     
  • Tapasya Umesh Pisal v/s. Union of India and Ors (2017)
    In this case, the petitioner requested for termination of pregnancy upon knowing that her foetus is diagnosed with tricuspid and pulmonary atresia, a heart defect. It posed a severe threat to the physical as well as the emotional health of the woman. The apex court ruled that termination could not be denied even though the pregnancy duration here exceeded 20 weeks as the new born child would be handicapped or would have some defects. Therefore, under the MTP Act, termination was granted.
     
  • Roshni v/s the State of MP (2019)
    In this particular case, the petitioner requested for the termination of pregnancy since the foetus’s right kidney was not visible and also faces various other complications. But here, the foetus was more than 20 weeks old and therefore the doctor denied abortion. On approaching the apex court, the decision in X Vs State of Maharashtra was cited where it was decided that it was a necessity to take the advice of two registered medical practitioners in cases of termination exceeding 20 weeks. Therefore, a committee of doctors was set up to decode upon this case, the result of which was the grant of termination of pregnancy.
     
  • Calcutta High Court judgement, 2022
    In a recent case, SSKM Hospitals submitted a report stating that the unborn child of a woman has problems in the spinal cord and other malformations. The Calcutta High Court for the very first time allowed termination of a 35-week pregnancy.

Recent Judgement On Abortion Rights

An unmarried woman in a consensual relationship wanted to abort her pregnancy, since her partner did not agree for marriage. She was denied the right to exercise termination,since the duration exceeded 20 weeks and according to the MTP Act, unmarried woman could only terminate within 20 weeks. Advocate Amit Mishra representing the pregnant woman approached the Supreme Court.

The Supreme Court on 29th Sept, 2022 ruled that all women regardless of their marital status could terminate within 24 weeks. Justice DY Chandrachud says "The artificial distinction between married and unmarried women cannot be sustained. Women must have autonomy to have free exercise of these rights"

The MTP Act has always been discriminatory towards unmarried women seeking abortion. This judgement rises much above the conventional beliefs of premarital pregnancy,being a social embarrassment and ensures equality of women. It recognises the rights of unmarried women, therefore being a judgement applauded by many. It is a ray of hope towards a progressive outlook towards abortion.

Critical Analysis
Legalising Abortion: A progressive step towards freedom of choice
Legalising abortion in a country like India, where society is mostly founded on a conservative and traditional belief system, is in itself a very bold step to take. From the introduction of the MTP Act in 1971 to the MTP Amendment in 2021, we see major changes in the law relating to the issue, though it is slow and gradual.

The MTP Act has various positives such as:
  1. It ensures equal treatment of married and unmarried women, i.e. the period of termination of pregnancy is the same regardless of marital status;
  2. Since abortion yet is considered to be a social embarrassment, it seeks to provide privacy and confidentiality and the amended MTP Act makes sure that the identity of the woman is not revealed giving the woman the right to privacy.

Nonetheless, India being a patriarchal society has always looked down upon women and prevented them to exercise their rights freely. In such a background, giving abortion rights to women itself was a landmark change in society and a progressive step towards bringing equality.

Discrepancies of the law
Even though the MTP Act tries its best to ensure the upliftment of women rights and equality, it unfortunately suffers from various discrepancies which must be looked intoseriously, in order to ensure freedom and give woman the rights they deserve. One of the major problem this law faces is medical bias.

The "physicians only" policy puts a restriction on the woman to approach doctors of any kind. It is a mandate to go to registered professionals, but there is a lack of service and availability of such physicians in many areas yet, due to which women suffer. Especially in rural areas, there is a shortage of doctors and hence women find it difficult to exercise termination within the lawful duration. The abortion rights are bent more towards the medico-legal side whereas the need is to make it a human right.

The MTP Act has only been amended twice in last 50 years, and therefore it fails to keep up with the changing times of the society. Medical technology is at a fast growing pace and to ensure equality, it must keep up with the changes in society.

Conclusion
There still exists a social stigma related to premarital pregnancies, pregnancies due to rape and pregnancies struggling with serious pre marital and marital conflict. It is extremely essential to create awareness and remove the dishonour and taboo associated with abortion. A sincere change in outlook and a consequential effort to change certain laws on humanitarian understanding could take India way ahead and make the country a better place for women to survive and live.

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