This article is written by Shiksha Jain & Shruti Jain pursuing B.A.LL.B (Hons.), from Manipal University Jaipur.
Table of Contents
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.
The Indian Penal Code, 1860 and The Code of Criminal Procedure, 1898 from its very inception under British regime made abortion a criminal offence for both the woman and the abortionist, except to save the life of the woman. After the Roe v. Wade case, where it was held that the pregnant woman has a right to choose to have an abortion without excessive government intervention, European and American countries started to legalise abortion. The Shah Committee, appointed by the government in 1964, carried out a comprehensive review of socio-cultural, legal and medical aspects of abortion, and in 1966 recommended legalising abortion to prevent wastage of women’s health and lives on both compassionate and medical grounds. On the basis of the report of the committee, the government passed the Medical Termination of Pregnancy Act, 1971(MTP Act of 1971).
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.
Medical Termination of Pregnancy Amendment Bill, 2020
In January 2020, the Union cabinet approved the Medical Termination of Pregnancy (Amendment) Bill, making it easier for women to safely and legally terminate the pregnancy. It 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.
Issues with the current legislation
Despite such humanistic and liberal legislation, the majority of women in India still lack access to undergo a secure abortion. There are several issues that arise from this legal framework under the MTP Act. While the MTP Bill, 2020, maybe a step within the right direction, it still fails to deal with most of the issues with this act.
Lack of autonomy of the child-bearer
Now, even though abortion is legally permissible under a wide range of situations at different stages of the pregnancy, the healthcare providers or the medical practitioners have the final say on whether the abortion can be carried out or not, rather than the women seeking an abortion. Abortion is not understood as a woman’s right and the final decision rests upon the doctor. To get the pregnancy terminated solely based on will, a woman may be obliged to either lie or plead with the doctor. Thus, at present, pregnant women lack autonomy in the decision making to terminate their pregnancy and have to bear the additional stress and financial burden of getting a medical professional’s approval. A woman has to justify that she conceived despite her having tried to prevent it. The reality may be that the pregnancy was unwanted from the beginning, but the woman may feel she has to say it was a contraceptive failure just to justify abortion within the confines of the legal framework, creating an environment of falsehood. Hence, a woman’s right to decide for herself did not and still does not fall within the intent or ambit of the MTP Act. Also, foetal abnormalities can now, due to advancement in medical science, be detected even after 20 weeks.
Even though the MTP Act currently allows abortion after 20 weeks only when it is necessary to save the life of the mother, it does not give any recourse to the woman even if there is a significant foetal abnormality and the pregnant woman does not want to continue with the pregnancy due to the mental agony associated with the lifelong responsibilities attached. In the year of 2008, Niketa Mehta brought a petition to the Bombay High Court to seek permission to abort their foetus that had been diagnosed with a heart defect in its 22nd week. The plea was turned down despite it getting nationwide attention and the petitioner eventually had a miscarriage in the 27th week of her pregnancy. Although the amendment bill of 2020 makes the upper gestational limit irrelevant in obtaining an abortion if significant foetal abnormalities are diagnosed by the Medical Board, it still must be accompanied by appropriate orders for the doctors in order to prevent unnecessary delays which would further increase the risks attached to late abortion.
Infringement of right to privacy and personal choice
The Supreme Court has recognised women’s right to make reproductive choices and their decision to abort as a dimension of their personal liberty and as falling within the realm of the fundamental right to privacy. Right to abortion is considered to be a subset of right to privacy under Article 21 of the constitution. It can also be said to include the absolute right of a woman over her reproductive organs. In the United States of America, the Supreme Court held that the right to privacy included abortions in the case of Roe v. Wade. Freedom from interference in one’s privacy and family life are protected in Article 12 and Article 17 of Universal Declaration of Human Rights, and the Civil and Political Rights Covenant respectively under international law.
In India, the K. S. Puttaswamy’s judgment clearly acknowledged the constitutional right of a woman to make her reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution. The bench also recapitulated this position in Suchita Srivastava v Chandigarh Administration, which held that reproductive rights include a woman’s right to carry a pregnancy to its full term, to give birth, and to subsequently raise children; and that these rights form part of a woman’s right to privacy, dignity, and bodily integrity. The right to one’s body lies with oneself and no one else. Any forced act upon it without one’s consent is a violation of basic human rights. Abortion is not only a moral issue but it is also a constitutional issue. The main question that arises is whether these rights include adolescent girls in their ambit. The MTP regulations contain strict confidentiality protections for women who undergo an abortion. However, the Protection of Children from Sexual Offences (POCSO) Act contradicts with the confidentiality process. Under this act, having sexual relations with an adolescent girl is a crime even if it is consensual between the persons below the age of eighteen.
Hence, if a pregnant adolescent girl approaches a doctor seeking an abortion, her privacy is infringed since the doctor must report the girl to the police as a survivor of sexual assault, even if it goes against her wishes. Due to this, adolescent girls may be reluctant to seek out contraceptive or other reproductive health services out of fear that the doctors will report them infringing their privacy and that criminal action may be taken against their partners. The need for efficient, comprehensible and holistic laws on abortion is dire in order to protect the right to health of pregnant adolescents and to also save the lives of women currently forced to seek unsafe abortions from unlicensed medical professionals.
In conclusion, abortion remains one of the three main reasons for maternal mortality and morbidity. Even with the existence of the MTP Act for almost 49 years, the number of unsafe abortions outnumbers the safe. This is owing to the fact that anything about sex and sexuality is still a taboo in India. There is a negative attitude associated with abortion. The lack of awareness and illiteracy is one of the major reasons for such a situation. WHO’s Safe Abortion Guidelines points out the importance of knowledge about safe and legal abortion and how crucial it is to protect women’s right and health. Better family planning and awareness at small scale levels such as ‘Anganbaadi’ and panchayats should be performed. There is a need to increase awareness regarding contraceptives and abortion at all levels of society and government should provide free counselling to people.
One of the biggest reasons for unsafe abortion is those safe abortion facilities are inaccessible due to policy and legal restrictions, lack of affordable abortion services and knowledge of abortion among women. Section 19(1) of the POCSO Act should be amended in such a manner to ensure that pregnant adolescents can access abortion without risking their confidentiality being violated by mandatory reporting requirements. Abortion by request should be brought in the MTP Act, keeping in mind women’s right to privacy, choice and health of women. The current abortion laws fail to allow the exercise of this right which evidently shows that it does not do enough to secure women’s interests, and there is still a long road ahead for progressive abortion laws with a more approachable and accessible system that would allow medical practitioners to do their part safely within the limits of the law increasing access to safe abortion services in India.
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