abortion
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This article has been written by Anjali Dixit.

Introduction

Abortion or the termination of pregnancy as it is referred to in legal parlance, was illegal in India until 1971, as Section 312-316 of the Indian Penal code,1861 made it a criminal offence. Abortion can be spontaneous or induced. Spontaneous abortion is when a pregnancy comes to an end on its own, commonly known as miscarriage; whereas an induced abortion is when a pregnancy is terminated by intervention using medical or surgical procedures. It is clear that the Indian penal code made induced abortions illegal, considering the socio-religious fabric of the Indian society at that time. However, in 1971, the Medical Termination of Pregnancy Act, 1971(MTP Act) was enacted, making induced abortion legal in certain circumstances. This Act was enacted based on recommendations of the Shanti Lal Shah Committee, constituted by the government in 1964, to draft an abortion law for India in response to the alarming rates of illegal abortions taking place in the country[1].

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Ever since the MTP Act was passed there has been disquiet and unrest over its provisions giving primacy to the opinion of a registered medical practitioner rather than the pregnant woman. Several petitions have been filed so far challenging the 48-year-old MTP Act, 1971 on account of its stringent provisions related to abortion. Since 2009, over 30 petitions have been submitted to the Supreme Court and the High Courts by women and girls seeking directions for obtaining termination of pregnancy. [2]

Recently, on September 18, 2019, the Ministry of Health and Family welfare, in an affidavit filed before the Supreme Court of India submitted, that a pregnant woman’s right to abortion is not absolute. The affidavit was filed in response to a petition filed in 2009 by Dr Nikhil Datar that seeks to liberalize the restrictive provisions relating to abortion in India[3].

This reply by the government resurfaced the debate on the right of women to make reproductive choices.

The MTP Act was enacted with the laudable object of safeguarding women’s health and reducing maternal mortality due to illegal abortions. But even after 48 years of its passing, unsafe abortions constitute 9-20% of all maternal deaths in India[4].A recent study published in Lancet Global Health estimates that only 22% of the 15 million abortions that occur in India every year take place in a public or private health facility, and are performed by trained personnel, whereas the remaining 78% of abortions happen outside health facilities[5].

These harrowing statistics indicate that the current law has been inept in fulfilling its objective and calls for prompt amendment. In order to argue for reform in the laws, it is imperative to comprehend the law governing the realm of abortion in India.

Law at present

The Medical Termination of Pregnancy Act 1971 is the sole legislation governing induced abortions in India. The act regulates three aspects of termination of pregnancy, namely; when pregnancies may be terminated, by whom can it be terminated and where can they be terminated.

Section 3 of the said Act provides for the termination of a pregnancy by a registered medical practitioner if he is of the opinion that

  • the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
  • 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.

The said opinion needs to be formed in good faith. Further, in case of the length of pregnancy being 12 weeks, opinion of one registered practitioner is required, whereas in case of pregnancy extending 12 weeks but not more than 20 weeks, the Act requires the opinion of two registered practitioners.

Therefore pregnancy of length extending 20 weeks can’t be terminated by this route even if the above conditions are satisfied. In such a situation, the only option left with the aggrieved party is to petition the High Court seeking a direction to terminate the pregnancy. The Court grants or denies permission based on the opinion of a medical board constituted by it.

It is significant to mention here that the terms “grave injury to physical and mental health” is of wide import and subject to varied interpretation.

The explanations appended to Section 3 in the act, state that the anguish caused by a pregnancy alleged to have been caused by rape shall be presumed to cause grave mental injury to the pregnant woman.

Further, unwanted pregnancy of a married woman may be presumed to cause grave injury to her mental health, if it is caused as a result of the failure of a contraceptive method. In determining the injury caused to a woman, the Act considers the actual and foreseeable environment of the woman. The consent of the pregnant woman is required for termination of pregnancy and in case of a woman below 18 years or above 18 years but mentally ill, the consent of a guardian in writing is needed.

Section 4 of the Act details the place where the pregnancy can be terminated. It includes a hospital established or maintained by the government, or a place approved by the government or a district-level committee by the government for the purposes of the Act.

Section 5 provides relaxation of provisions mentioned in section 3 and 4, in case a registered medical practitioner forms an opinion in good faith, that the termination is immediately necessary to save the life of a woman.[6]

Anomalies in the Act

A careful analysis of the above-discussed provisions exposes the glaring gaps.

Firstly, the exclusion of pregnancies beyond the period of 20 weeks cannot find a reasonable justification in the present day and age. The MTP Act was drafted back in 1971 considering the technology at that time. With the rapid advancement in medical science today, pregnancies can be terminated safely up to 24 weeks.

Moreover, several factors lead to delay in accessing facilities that meet the requirements of the Act, causing women to cross the 20-week mark. There are instances where abnormalities in the foetus can be detected only after 20 weeks. If an abnormality in the foetus is discovered post 20 weeks of pregnancy, and the woman wishes to abort, she is subjected to the rigmarole of petitioning the high court.

Secondly, the requirement of a medical practitioner forming an opinion even as to the mental health of a woman is unjust, as it gives room to subjective interpretation. A pregnant woman should be regarded as the best judge of her mental well being. There could be myriad reasons with the potential of causing grave mental injury to the woman; all may not appeal to a medical practitioner as potent. In case, the woman decides to end the pregnancy solely on the reason of anguish caused to her by its continuation, she should be free to do so.

Thirdly, the requirement of two registered medical practitioners beyond a period of 12 weeks of pregnancy is unduly harsh for the woman from poor and under-developed regions, who do not have easy access to medical facilities. Despite government guidelines in this regard, abortion facilities are not available at all government medical establishments. In a scenario where access is a major issue, stringent requirements like these do more harm than good.

Fourthly, the Act takes into account unwanted pregnancies of an only married woman, caused due to contraceptive failure, under the presumption of causing grave injury to mental health. There is an underlying denial of the fact that unmarried women have unintended pregnancies that could cause grave injury to their mental health. This differential between married and unmarried woman is both unreal and unjust. Thus, unintended pregnancies of unmarried women are left to the unguided opinion of medical practitioners.

Recent Supreme Court decisions

 At several instances, the apex court of the country has ruled on cases relating to medical termination of pregnancy. As per article 141 of the Constitution of India, the law laid down by the Supreme Court is binding on all courts in India. Such being the impact of its decisions, it is pertinent to discuss some recent decisions by the apex Court in this regard.

Mrs X vs. Union of India  [7]

In this particular case, permission to terminate a 22-week old pregnancy was granted by the apex court on the report of a medical board, which recommended that continuation of the pregnancy would gravely affect the woman’s physical and mental health. This case is particularly significant for the Apex Court’s recognition of a woman’s liberty to terminate her pregnancy. The Court held that “a woman’s right to make reproductive choices is also a dimension of her ‘personal liberty’ under Article 21 of the Constitution”

Murugan Nayakkar vs. Union of India & Ors.[8]

 The Supreme Court allowing the termination of a 32 week old pregnancy of a 13-year-old rape victim held that “Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and above all the report of the Medical Board constituted by this Court, we think it appropriate that termination of pregnancy should be allowed.” It is imperative to note that a 32-week pregnant minor rape victim had to go through judicial scrutiny, as the law failed to provide any respite to her.

Savita Sachin Patil vs. Union of India  [9]

In this case, termination of a 27 week pregnancy was prayed for on the ground that the foetus had severe physical anomalies. However, the Apex court shockingly rejected termination of pregnancy, considering the report of the medical board which opined that though the foetus suffered with physical anomalies, there is no risk to the physical health of the mother. 

Sheetal Shankar Salvi v. Union of India, [10]

In March 2017, a 28-year-old woman prayed for termination of her 27-week old pregnancy, as the foetus suffered from a condition called Arnold Chiari Type II syndrome. This condition leads to an underdeveloped brain and spine and the chances of survival are highly reduced. The 7 members medical board constituted by the court recommended that there are chances of the baby being born alive. The Apex court denied permission on this ground while admitting that it was “very sad for a mother to bring up a mentally retarded child.

These cases bring the anomaly of law to the forefront. It is significant to observe that there is no uniform standard for granting or denying permission for termination of pregnancy. Further, the opinion of the medical board is given undue weight as compared to the choice of a woman.

The Medical Termination of Pregnancy (Amendment) Bill, 2014

In 2014, The Ministry of Health and Family Welfare released the draft MTP (Amendment) Bill 2014. The Bill increases the permissible limit for legal abortions from 20 weeks to 24 weeks. Further, no limit has been proposed for pregnancies diagnosed with substantial fetal abnormalities. It includes unmarried woman under the presumption of unintended pregnancies caused by contraceptive failure, deemed to cause grave injury to mental health. The bill mandates the protection of privacy rights of women while maintaining records. It expands the range of medical service providers by substituting the term “registered health care providers” in place of “registered medical practitioners, thereby including even non-allopathic healthcare providers.[11]

Shortcomings in Bill

While the Bill does propose some welcome changes in terms of expanding the service provider base to improve access, it does little to shift the focus of decision making from the service provider to women. Women will still be mandatorily dependant on the opinion of the service provider. The term ‘substantial fetal abnormality’ is capable of subjective interpretation, thereby resting the final decision on medical professionals. Further, it does nothing to recognize the plight of victims of sexual offences and they have been subjected to the same standards of an unintended pregnancy caused due to contraceptive failure. Victims of sexual offences are usually subjected to a variety of legal and practical barriers causing a delay in accessing abortion services. The law must incorporate mechanisms to recognize and provide swift relief in such cases.

This bill has been sent for inter-ministerial consultation and is yet to see the light of the day.

Conclusion and a way forward

The decision to not bring a child to life is a tough call for a mother. Pregnancy is not just physically consuming but involves a lot of emotions. However, if a woman makes the hard choice of terminating her pregnancy, she must not be left vulnerable to an unfavourable third party opinion. The stringent provisions of the MTP Act interfere with the reproductive rights of women. That the right to make reproductive choices is a component of the personal liberty of women has been well recognized by the Supreme Court of India.

 It is time that the focus of legislation shifts from the opinion of a medical service provider to ways and means of empowering and enabling women to make informed reproductive choices. There is more than one reason which makes this change compelling.

Firstly, a woman has autonomy over her body and can decide on issues concerning bodily integrity. The right to life and personal liberty under Article 21 of the constitution of India encompasses the right to make reproductive choices. Thus, a law impeding the exercise of this right is a clear violation of Article 21.

Secondly, time is of the essence in abortion cases. The unjust limit on the length of pregnancy for legal termination does not redress the concerns of a woman who have crossed such limit. This leaves behind a large section of women who are left with no option but to knock on the doors of Courts, which is a costly and time taking affair. Procedural delays often extend the length of pregnancy making it unsafe to terminate. It is insensitive to subject a woman who is more than 20 weeks pregnant, to judicial delays. Not all opt for the judicial route, a number of women resort to clandestine and unsafe abortions, thus risking their lives.

Thirdly, the law on abortion must aim at weeding out the causes of unsafe abortion, thereby protecting and improving women’s health. All women, barring class, caste and region, should have an equal opportunity to exercise their reproductive rights. The law must focus on making abortions more accessible, effective, safe and affordable.

Lastly, the legislators must strive to make induced abortion less conditional and more dependent on the will of the pregnant woman. The role of a medical practitioner must be limited to recording consent and adopting a safe procedure. It’s time to restore autonomy to a woman so that she can be an independent arbiter on matters relating to her bodily integrity.

Endnotes

[1] K.D Gaur, Abortion and the Law in India, Vol. XV Cochin University Law Review,123(1991), available on http://dspace.cusat.ac.in/jspui/bitstream/123456789/11161/1/Abortion%20and%20the%20Law%20in%20India.PDF  last seen 25/09/2019.

[2] Centre for Reproductive Rights, Ensuring Reproductive Rights: Reform to  Address women and girl’s need for abortion after 20 weeks, available at  https://reproductiverights.org/sites/default/files/documents/Post-20-Week-Access-to-Abortion-India-0218.pdf ,last seen  25/09/2019.

[3] Women don’t have  absolute right to abort,Hindustan Times,19/09/2019,available on

https://www.hindustantimes.com/india-news/women-don-t-have-absolute-right-to-abort-government-to-sc/story-xJYnwFibwU7Jezm5yRRu0H.html,last seen 25/09/2019

[4] Supra 2, at 12

[5] V. Manning, Looking beyond the legality of abortion, Live mint, 1/10/2019,available on https://www.livemint.com/Opinion/yCN9cRSjS4a6r5FKjcGoTM/Opinion–Looking-beyond-the-legality-of-abortion.html, last seen 25/09/2019

[6] Medical termination of Pregnancy Act ,1971

[7] Ms. X v. Union of India,W.P (C)No. 593 of 2016(Supreme Court,25/07/2016).

[8] Murugan Nayakkar vs. Union of India & Ors ,W.P. (C) No. 749 of 2017(Supreme Court)

[9] Savita Sachin Patil vs. Union of India,W.P. (Civil) No. 121 of 2017(Supreme Court)

[10]Sheetal Shankar Salvi v. Union of India, W.P.(C) 174 of 2017,( Supreme Court,27/03/2017).

[11] Medical termination of Pregnancy(Amendment) Bill,2014 (Draft Bill, October 2014)


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