abortion law india

In this article, Shagun Bahl discusses the reasons why India’s Abortion Law is failing its women on so many fronts.

WHY IS INDIA’S ABORTION LAW FAILING ITS WOMEN

Abortion laws in India is the mirror image of the patriarchal social system in India which still continues to practice not only in Indian society but also on heart and minds of thousands of women in India who still are aborting their right to govern their life as they want like these abortion laws in our country wherein also they are aborting their right to terminate their pregnancy if they fail to meet the parameters as laid out in  Medical Termination Of Pregnancy Act, 1971 http://tcw.nic.in/Acts/MTP-Act-1971.pdf. They still, in 21st Century have to seek consent from the courts to abort their own child on terms and conditions laid out in an outdated piece of the act called The Medical Termination of Pregnancy Act, 1971.

The MEDICAL TERMINATION OF PREGNANCY ACT, 1971

The Medical Termination of Pregnancy bill was passed by both houses of Parliament and received the assent of President of India on 10th August, 1971. This law guarantees the Right of Indian women to terminate their unintended pregnancies by a registered medical practitioner in a hospital maintained or established by a Government or place recognised in the Act by the Government. The note to be taken here is that all pregnancies cannot be terminated. There is a qualification in the act mentioned in Section 3 of the Act which under extraordinary circumstances allow Indian women to abort their child.

IMPORTANT PROVISIONS OF MEDICAL TERMINATION OF PREGNANCY ACT, 1971

Section 3 – When Pregnancies may be terminated by registered medical practitioners.

The pregnancy may be terminated by a registered medical practitioner in following cases,-

(a) Where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is,

or

(b) Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners

are of opinion, formed in good faith, that,-

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health ; or

(ii) 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.

Section 4 – Place where pregnancy may be terminated

No termination of pregnancy shall be made in accordance with this Act at any place other than,-

  1. A hospital established or maintained by Government, or
  2. A place for the time being approved for the purpose of this Act by Government.

Section 5

Sections 3 and 4 when not to apply

  1. The provisions of Sec.4 and so much of the provisions of subsection (2) of Section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioner, shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
  2. Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of a pregnancy by a person who is not a registered medical practitioner shall be an offence punishable under that Code, and that Code shall, to this extent, stand modified.

INEFFICIENCIES OF MEDICAL TERMINATION OF PREGNANCY ACT, 1971

This consent seeking practice of taking permissions from the Court to terminate their pregnancies only before 12-20 weeks on medical opinion from Medical Practitioners seems to have defeated the purpose for which it was laid originally in  Medical Termination Of Pregnancy Act, 1971. Ostensibly, the reason for the relatively low time frame to terminate the pregnancy was to safeguard the girl child by preventing sex-selective abortions or female feticide in this country but this law has contradicted the modern reality of today and the brunt of it is being faced by women who face some abnormalities during their pregnancies , rape survivors or simply any woman who wishes now to keep their child as she feels unprepared for it Lawmakers by making abortions as a qualified right are taking away right of women to have an autonomy on their own body and to decide whether they want to keep the child or not and leaving them with no option  than turning to  the doorsteps of court for seeking permissions to terminate their pregnancies, if they do not wish to keep the child.

It is provided in the act that a woman do has the say in aborting the child only if she is 18 years of age i.e. the age of attaining majority and not lunatic. Though the lawmakers have considered the situations where pregnancies constitute a grave impact on the mental health of the women or the pregnant woman’s life is at risk or where the pregnancy has been caused as an outcome of rape which is itself a big trauma for the women to cope with all her life and this act also realises that such unwanted pregnancy will only aggravate her misery. But in a holistic view , lawmakers have disregarded other facet of a woman’s life where she maybe by her free will do not want to carry the child as she is not ready for it or she does not feel financially or mentally fit to carry the responsibility of a  having a child. It seems as the lawmakers and courts only can guarantee women’s right to safe abortion only when she is in a miserable position in her life or facing predicament in her life .

The question here is when the woman is allowed to exercise her rights on their body? only in certain difficult junctures of life or always as a free citizen of this country?  

ABORTION LAW – REALITIES IN INDIA

The failure of abortion laws in this country in dispensing justice to the women for whom the law was made and how it stands can be understood by witnessing the plight faced by these underaged rape girls who are the biggest victims of this 20 week mark provided in the Medical Termination of Pregnancy Act, 1971 as the pregnancies in this act are discovered very late and the stigma attached to rape survivors in this country silences them in such a way that they are left with no option other than to plead before the court to seek permission to  terminate the unwanted or unintended pregnancy but in most cases they have to forcibly deliver the child as they are pregnant with the child for more than 20 weeks.

The qualified legal status of abortion in India questions the right Indian women possess on the reproductive life and the restrictive abortion laws in India attacks the very sanctity of gender neutrality which the constitution of this country guarantees to provide its women. The abortion laws of this country are failing its women in many fronts as we as a society has witnessed time and again that this restrictive abortion practices has only continued to jeopardizes women’s reproductive rights and played with their life and health and increasing to their plight the slow legal machinery of this country which makes the whole law futile as after hitting the 20 week mark of their pregnancy they are not allowed to medically abort the child and in some cases can also cost the life of mother due to unsafe deliveries in complicated cases.

It is worth mentioning here that a report published in case of a 35-year-old HIV+ woman from Bihar was forced to have a baby because her paperwork got stuck at a government hospital for 4 weeks and she crossed the 20-week mark. A long legal battle ensued, which ended with both Bihar’s high court and the Supreme Court rejected her abortion plea in.The reason cited by the court cast light on the failure of abortion laws in the country which are so rigid in law and fails to empathize with the sufferings of women.  She was already 26 weeks pregnant by then and due to this she was not permitted to abort her child as it seemed a risky proposition to the courts.

It is worth applauding that there has been change of heart in some cases by Supreme Courts where they have on humanitarian grounds permitted women and underaged rape girl child to abort pregnancies off the 20 week mark as provided in Medical Termination of Pregnancy Act, 1971. (MTP) Act.

But still we need in light of compelling circumstances, a stronger law which can empower its women rather than leaving them alone to be victimized by the hands of outdated MTP Act,1971.

ABORTION LAW AND RIGHT TO LIFE AND PERSONAL LIBERTY UNDER ARTICLE 21 OF CONSTITUTION OF INDIA

Abortion is act of terminating a child’s life before even its existence. The law has to strike a balance between a mother’s mental and physical state to bring the child to life and the life of child which is at stake. This is a big dilemma which Courts have to resolve within the four corners of law with a humanitarian approach to bring justice to both mother’s and child’s life. The Constitution of India recognizes right to life and personal liberty under Article 21 to every person which includes both man and woman.  Right to abortion is the fundamental right which every woman has among the various other rights she possesses as this right is directly a matter of privacy which very recently is accepted by our apex court as an integral part of fundamental right under Article 21 of the Indian Constitution. The bone of contention is to bridge the gap between right to life of pregnant women and right of life of an unborn child. The Medical Termination of Pregnancy Act, 1971, as if now, has not been able to solve the conflict of life of mother versus life of child effectively.

In the case of  R and anr v Haryana too, the petitioner was a minor. She was pregnant as a result of rape and was in the 24th week of her pregnancy. The amicus curiae in this case contended before the high court that the protection of the rights of an unborn child is an obligation cast upon the state under constitutional provisions, and in view of simple understanding of the provision of Section 5 of the MTP Act,, a conflict between the right to life of the pregnant woman and the right to life of an unborn child would yield in favour of the woman.

It is to be noted to force a woman to continue with a pregnancy that she does not want to have is an infringement on the right to privacy and dignity of the woman as well as an infringement of the right to a healthy and dignified life of the nascent life in her womb.Article 21 guarantees right to live a dignified life to every person and is a constitutional right which cannot be taken away from the victim in the present case.

Thus, the Courts in abortion case ought to examine the plea of abortions of pregnant women from two standpoints, firstly protecting the life of pregnant women and secondly the rights of unborn child whose life could be taken away by the said abortion.

ABORTION LAWS IN CASE OF JUVENILE RAPE VICTIMS

The juvenile rape victims are the victims of abortion law and facing the brunt of Section 3 of Medical Termination of Pregnancy Act, 1971 as mostly in cases of juvenile rapes, the pregnancy is detected at a very later stage adding to the misery is the social stigma attached to it which silences the juvenile rape victim to come out and speak about it. The provisions of Medical Termination of Pregnancy Act, 1971 leaves no recourse in case of juvenile rape victims also, they too have to seek consent from the Courts before aborting the child in their womb if their pregnancy exceeds 20 week. There is only little protection given in case of juvenile rape cases where they are allowed to abort their child if the anguish caused by the unwanted pregnancy constitute as a grave injury to the mental health of pregnant women or there is a danger to their life as provided in Section 5 of the Act.

But as in most unfortunate cases, the under-aged rape victims have to keep the unwanted pregnancies birthed out of rape and sexual assaults

The most recent case of rejection of plea of abortion of juvenile rape victim by District Court in Chandigarh which shocked our consciousness blatantly was “when  10-year-old rape survivor was denied permission to terminate the pregnancy resulting from the rape. The child was allegedly raped continuously over a period of time by her maternal uncle.The plea for abortion was rejected after it was confirmed that the minor was 26 weeks pregnant. According to the Medical Termination of Pregnancy (MTP) Act of 1971, the legal ceiling for abortions in India is 20 weeks. In more advanced pregnancies, exceptions are made by the courts if the foetus is proved to be genetically unviable or if the pregnancy poses a grave threat to the mother’s life.”

This is the most heartbreaking reality come out of provisions of Medical Termination of Pregnancy Act, 1971 that how a 10 year old victim who already is devastated by the rape done by her maternal uncle will also now have to go through the unwanted pregnancy which will be detrimental for her well being and life of the child she will be forced to give birth to.

ABORTION LAW OF INDIA – STEP FORWARD

The liberalization of abortion laws is the only way forward to empower the Indian women to exercise their reproductive rights and the making informed decisions in giving birth to a new life in a safe, healthy and productive environment. The unsafe abortions are widely prevalent even after 46 years of the act coming into force and thus making it imperative for the legislators to amend the Medical Termination of Pregnancy Act, 1971 in order to remove the roadblocks of abortions not being legally permitted after the gestational age of 20 weeks of Pregnancy.

AMENDMENTS

DRAFT MEDICAL TERMINATION OF PREGNANCY AMENDMENT BILL,2014

  • The draft Medical Termination of Pregnancy (Amendment) Bill, 2014 purports to amend Section 3 of The Medical Termination of Pregnancy Act, 1971 in order to remove the length of pregnancy clause in cases to be decided for aborting a foetus diagnosed with substantial foetal abnormalities as may be prescribed.
  • The draft bills seek to increase the legal limit for abortion from 20 weeks to 24 weeks.
  • The draft Bill to allow to a woman to take an independent decision in consultation with a registered health-care provider.

This draft bill on Medical Termination of Pregnancy Amendment Bill, 2014 has not seen light till day. But the amendments proposed by this bill when will come into force will definitely be a way forward in liberalizing abortion laws of this count and will strive to decrease the plight of many helpless Indian women who again will have an autonomy in making an informed choice for themselves to keep the child or to abort it by their free will and without any societal pressure and social stigma.

APPROACH TO BE

The MTPA in 1971 did not foresee the changes in the medical technological sphere which will make it possible in time to come to monitor the natal health of the child. The MTPA in 1971 also did not make itself conducive to the reproductive needs of women and their enterprising approach who do not wish to being regulated in four corners of laws for aborting their child. So the legality of for a revised limit for abortion needs to be checked by the apex court of the country and time and amend the provisions of Medical Termination of Pregnancy Act, 1971 in the light of emergent social prejudices faced by the women of our country.

 

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