This article is written by Jelsyna Chacko, Editor (Legal), Writing Coach and Mentor at LawSikho.
The Protection of Children from Sexual Offences Act, 2012 (POCSO) in India was introduced as a means to specifically protect children from sexual offences and bring offenders under trial by establishing Special Courts in this regard. This Act mandates adolescents below the age of 18 years seeking an abortion to fulfil certain prerequisites. The reality of the victim’s conception must be brought to the knowledge of a third party authority like the police. In a country, where child marriage is still predominantly prevalent, this provision largely deters adolescents who do not wish to bear a child from seeking legal abortion services. This occurs mostly due to the stigma attached to abortion and the possible reactions that the individual and/or her family may have to face as a result. The article strives to thrash out the nitty-gritty of the abortion law, policy and services in India in this regard and suggest possible amends to the same.
The jurisprudence of abortion – through the yardstick of morality
Abortion is the act of removal of an embryo or fetus from the uterus. This may happen accidentally by a miscarriage or can be induced by medical procedures or pills. Discussions on abortion almost always revolve around the pro-life/pro-choice debate where on one hand, those not in favour of abortion argue based on the principle of morality. The underlying crux being that killing of the fetus is considered a grave act of disrupting harmony in the state of nature. Another viewpoint is that the ‘personhood’ perspective of the fetus is taken into consideration. On the flip side, those in favour of abortion argue keeping in hindsight the autonomy of a woman who has been impregnated without consent or by a gross act of violence violating her bodily sovereignty. Pro-abortion arguments are also made considering the threat to the fragility of the mother’s life, and also if there are deformities in the fetus. Although there cannot be a black and white demarcation made between the two aspects of the debate, the stance on morality can only be taken after understanding the background of a particular case and that the morality aspect would change on a case to case basis.
According to the prevalent abortion law in India governed by the Medical Termination of Pregnancy Act, 1971, abortion up to a period of twelve weeks from conception requires the approval of one doctor, from twelve weeks to twenty weeks requires the approval of two doctors and abortion of a fetus beyond twenty weeks is permitted only in exceptional cases.
A Feminist outlook on abortion
Traditionally, the issue of abortion was seen from the standpoint of the moral status of the fetus with little or no consideration regarded to the woman or her autonomy to decide. However, the feminist perspective has laid emphasis on her right to choose and to have a say about her body constituting the fetus. The traditional viewpoint of abortion considers women’s decisions to be frivolous, as they believe, abortion would be resorted to easily and almost instantly after every irresponsible act of intercourse. In contrast, the feminist perspective foresees many more reasons than mere frivolity, considering the larger scheme of repercussions to her life, keeping in view also the socio-cultural context of her decisions. Susan Sherwin in her essay on ‘Abortion through a Feminist Ethics Lens’ argues that no one is in a better position to take a call on abortion other than the pregnant woman herself and that she should have the right to choose for herself what is in the best interest of the society around her without neglecting her own being and health. This, however, can be made possible only when a woman gains control over her sexual and reproductive life and also is financially independent so as to be able to execute as per her will.
The non-feminists set the fetus apart from the woman, where the woman has a hostile approach to her fetus. This is from the viewpoint of having an unintended conception, a post which the only immediate aim of the woman is to get rid of the fetus without really taking into consideration the life within the fetus. The feminists view the fetus as a ‘person’ only due to its relational link to the mother and that the mother is put at a higher pedestal of responsibility to define and give meaning to the life she carries within herself.
This is not to say that feminists are pro-abortion per se, but merely emphasizes the need and importance of a woman being given a reasonable set of options so as to take her call with regards the fetus. Legislative provisions which require the consent of the husband/guardian can impair her right to freely decide for herself.
A close look at the interlink between POCSO and MTP Acts
The POCSO Act mandates reporting of a case of sexual offence on a minor female to an appropriate authority like the local police or special juvenile police unit or child protection committee or any person in an organization who can then report the resulting pregnancy to the appropriate authority like the Chief Medical Officer. This reporting needs to be done regardless of the minor girls consent so as to go ahead with the termination according to the Medical Termination of Pregnancy Act. The Act does not lay emphasis on the marital status of the minor. In a country where child marriage is still prevalent and marital rape is not considered a crime, the purpose of the legislation could be defeated if a minor is exploited within the confines of her wedlock.
An imprisonment term of six months along with a fine will follow in case of a deliberate failure to report such an offence. This is in consonance also with the Criminal Procedure Code.
Quite contradictory to the aforementioned legislation (POCSO), the Medical Termination of Pregnancy Act, 1971 lays emphasis on protecting the identity of the girl who is the victim. It also doesn’t mandate any kind of reporting when a victim seeks an abortion. Therefore, the contradictions in the two legislations are very significant at the most fundamental level and amendments need to be brought about in the same so as to bring clarity and practical ease in executing sensitive issues concerning a woman and her bodily integrity and image in the society.
In matters of consent, the MTP Act requires the consent of the guardian of a minor or mentally ill person. In other cases, the Act requires the consent only of the pregnant woman, however, in practice, the relative of the pregnant woman, or her husband need to provide their consent as well denying her the right to have a say on her own body as per her wish.
Abortion services and challenges faced
As has been seen above, when a victim seeks an abortion, the consent of her husband/relative is made mandatory although no legislation lays down such a mandate. Other challenges that are practically faced by any individual seeking an abortion include, repercussions faced as a result of undue delays in submitting reports by medical panels and authorities appointed to study the gravity of the woman’s condition. Doctors and police have often petitioned courts regarding abortion, although the same is not required while seeking permission to terminate the pregnancy. This has led to further unprecedented delays which lead to exceeding the gestational limit for abortion.
The attitude and conduct of Medical providers cause much strain on the woman seeking an abortion. The Preconception and Prenatal Diagnostics techniques (Prohibition of sex Determination) Act 2003 (PCPNDT Act) has also had a significant impact on abortion services as it has imbued a sense of fear amongst the providers as also a misconception by the general masses confusing abortion and gender-biased sex selection.
A prominent case that got wide media coverage on the much-heated debate of the “20 week period” for legal abortion, was the case of Niketa Mehta. She approached a doctor to abort her twenty-two week year old fetus after realizing that the fetus had significant abnormalities. This would starkly affect the normalcy in the growth and overall life of the child. Even after considering the stakes of bringing the fetus to life, the doctor went ahead and assisted in the delivery. As was the most inevitable consequence, the baby was born deformed. The life altering repercussions in the family led the doctor to challenge the law in the Bombay High Court and further on in the Supreme Court in the case of Dr Nikhil Datar vs. Govt. of India. There have been several instances where Courts have allowed abortions up to 30 weeks of pregnancy in cases of rape. These highly volatile contrasts in the ground realities of access to abortion need to be made more uniform with the help of a fast track scrutiny mechanism. This is to ensure timely justice to the victim as also to safeguard public order, morality and health as is guaranteed under Part III of the Constitution of India.
Destigmatizing by introducing policy changes
The way forward with regards the current system of abortion would be bringing uniformity in the legislation in respect to the prerequisites while seeking services. Authorities like the police, medical practitioners need to be sensitized on matters of mental health and the dire repercussions their approach to the victim could have on her state of mind.
On a societal level, it is also extremely essential that judgmental statements, snide remarks or accusations must not be made or passed when a victim approaches an abortion clinic. Resorting to petitions in the court should not be entertained in matters of abortion, as it unnecessarily delays the services and prolongs the agony and mental trauma faced by the victim. All matters concerning sexual offences and abortion must be dealt with utmost sensitivity so as to ensure a feeling of safety among those affected.
- Policy brief: The POCSO Act and The MTP Act: Key Information for Medical Providers. Retrieved from: https://www.ipasdevelopmentfoundation.org/publications/policy-brief-the-pocso-act-and-the-mtp-act-key-information-for-medical-providers.html
- Handout: Abortion and Ethical Theories. Retrieved from: http://peped.org/philosophicalinvestigations/abortion/
- Anita Bhaktwani, The PC-PNDT act in a nutshell. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3498638/
- Bhavani Giddu, Untangling the Legal Knots on Reproductive Rights Is a Step Towards Helping Indian Women. Retrieved from: https://thewire.in/gender/abortion-law-reproductive-rights
- Ritu Singh, Abortion in India: All that you need to know! Retrieved from: https://zeenews.india.com/news/health/health-news/abortion-in-india-all-that-you-need-to-know_1639256.html
- Martha Bayles, Feminism and Abortion. The Atlantic (April 1990 issue) Retrieved from https://www.theatlantic.com/magazine/archive/1990/04/feminism-and-abortion/304932/
- Callie Eddington, Reflections on Feminist Views of Abortion and Motherhood. Retrieved from: https://digitalcommons.cedarville.edu/cgi/viewcontent.cgi?article=1040&context=cedar_ethics_online
- Berny Belvedere, On Legality and Morality Abortion, unjustified killing, and overridingness. Retrieved from :https://arcdigital.media/the-legality-and-morality-of-abortion-5f771ebe27fd
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: