This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed discussion on the legality of abortion with respect to India in light of the Medical Termination of Pregnancy Act.  

This article has been published by Shoronya Banerjee.

Introduction 

In India, abortion, or the termination of a pregnancy by chemical, surgical, or other means, became legal in 1971. Any woman seeking an abortion would be entitled to have one under the Medical Termination of Pregnancy (MTP) Act, which was adopted that year, as long as the grounds she claims are legal. Despite the fact that it is legal in India, many women are either uninformed of their entitlement to a medical abortion or seek unsafe abortions outside of the formal health care system owing to the shame associated with the practice. The present article discusses the legal status granted to abortion in India, the lacunas in the declared status, and the possible bandages existing for sufficing the lacunas. 

Medical Termination of Pregnancy (Amendment) Act, 2021 : determining the legality of abortion

On March 25, 2021, the Medical Termination of Pregnancy (Amendment) Act obtained Presidential Assent. The Act modifies the 1971 enactment by increasing the number of weeks a woman can terminate her pregnancy and establishing specific conditions in which a pregnancy can be terminated at any time. While the amendment has increased abortion access to some extent, it fails to address one fundamental flaw in the Medical Termination of Pregnancy Act of 1971 (MTP Act), that a woman does not have the right to terminate a pregnancy, but may be allowed to do so only in certain specified circumstances, and only if a medical professional (and, in some cases, a medical board) determines that those circumstances are met.

The MTP Act was modeled after the Abortion Act of 1967, which had been approved in the United Kingdom when the former was initially implemented in 1971. The legal purpose was to grant a qualified ‘right to abortion,’ and abortion has never been accepted as a common option for expecting women. Therefore, legalizing abortion was never the intention of the legislature. 

However, despite its nearly 50-year existence, the framework continues to be beset by implementation challenges, process ambiguities, and interpretative disagreements, all of which have been bolstered by a shaky legislative foundation that has approached the issue from a medico-legal rather than a rights-based perspective. Furthermore, the law has been significantly influenced by other legislations and has not kept pace with important advances in medical technology.

Was liberalizing abortion in India a questionable approach

Unfortunately, the approach adopted to enact a legal framework for abortion was more concerned with problems like family planning and potential criminal charges against medical practitioners rather than with women’s rights. Indeed, neither the Act nor its predecessors were focused on women’s rights, instead was involved in visualising abortion as a public health concern. The desire for a liberalised abortion law did not originate with any feminist movement, but rather with policymakers and physicians wanting to address India’s growing population. Furthermore, the MTP Act established a monopoly that authorised only Registered Medical Practitioners to conduct MTPs, despite the fact that non-allopathic practitioners were successfully doing MTPs.

The MTP Act is described as “an Act to provide for the termination of certain pregnancies by registered medical practitioners and for issues associated with or incidental thereto,” according to its Preamble. While the requirement to acquire consent from a pregnant woman is codified in law, it does nothing to emphasise the woman’s freedom to choose whether or not to continue the pregnancy. As a result, the claim that the MTP Act “is restricted to the liberalisation of circumstances under which women may have access to abortion services provided by licenced medical practitioners” stands valid.

Visualizing abortion as a human right

Human rights are those rights that should be available to everyone without any discrimination. The right to life is the most fundamental human right, from which no exceptions can be made and is unassailable. The arbitrary deprivation of life is prohibited under Article 6(1) of the International Covenant on Civil and Political Rights. However, there are several contentious concerns surrounding this privilege. The right to abortion is one of such concerns.

Previously, abortion was not granted the designation of being a right as society was highly opposed to it. Pregnancy termination has been referred to as foetal murder as well. However, as time and technology progressed, most countries now recognize abortion as a right, after the historic Roe v. Wade (1971) decision by the US Supreme Court. However, there are still many who oppose it, and some feel it should be made illegal.

Individual rights, such as the right to life, liberty, and the pursuit of happiness, support a woman’s right to have an abortion. The reproductive health of a woman influences her decisions concerning the same. Reproductive rights are widely acknowledged as essential for furthering women’s rights as humans and supporting development. Governments across the world have recognized and vowed to improve reproductive rights to unprecedented levels in recent years and the same is reflected in formal laws and programs. Every woman has the complete right to manage her body, which is sometimes also referred to as physical rights. Thus abortion is very well counted to be a significant human right vested on females. 

Medical Termination of Pregnancy Act, 1971 

The Medical Termination of Pregnancy Act of 1971 ushered in a new era in women’s health by establishing a framework that allowed women to exercise basic control over their bodies, as causing a miscarriage voluntarily is a crime under the Indian Penal Code, 1860, and women could be prosecuted as well. By formalising the practice of abortion, the Act established a structure that permits women to seek medical help without fear of bodily injury from untrained or underqualified individuals.

The MTP Act, 1971 was intended to give certain exceptions to Section 312 of the Indian Penal Code, 1872 (IPC) that renders “causing a miscarriage” a penal offence. Any act done with the intent of preventing the child from being born alive or causing it to die after delivery is a criminal offence under Section 315 of the IPC, for which both the woman seeking the abortion and the medical practitioner can be prosecuted. It was discovered that many women who were seeking abortion were being subjected to ill health resulting in life threatening circumstances due to strict implications of the Code. Therefore, Section 3 of the MTP Act, 1971 intended to lay down the circumstances in which a pregnancy might be terminated:

  1. The pregnancy may endanger the woman’s mental and physical health; or
  2. The foetus had a significant chance of being born with major physical or mental defects.

As a result, a woman did not have the legal right to terminate a pregnancy as she could only do so if one or both of the aforementioned requirements were satisfied.

Legalising abortion in India : a positive thought

Surprisingly, the Committee established by the Ministry of Health in 1964 to explore the issue of abortion legalisation, advised that it be allowed on eugenic grounds. An additional comment from one of the Committee’s members, Dr. H.N. Shivapuri, demonstrates how important this concern was to the Committee; “both partners should have a health assessment before being allowed to marry.” Those who are unfit to be healthy parents to healthy children should be sterilised before marriage. The issue of ‘Fundamental Rights’ should not be permitted to get in the way, because the right of the nation to survive and thrive outweighs the individual’s right to lower living and health standards.” Thankfully, this Orwellian advice did not make it into the law that was eventually approved, but it does provide insight into the circumstances behind the MTP Act’s passage and the motivation behind it.

When seen in the perspective of the larger battle to reduce population increase, it is evident that establishing the MTP Act had nothing to do with a woman’s freedom to make reproductive decisions. Interestingly, when commenting on the eugenic theory in the case of Suchita Srivastava v. Chandigarh Administration (2009), the Supreme Court found that such actions are anti-democratic and in violation of Article 14 of the Constitution‘s guarantee of equal treatment before the law.  

Anubha Rastogi, a Mumbai lawyer who authored a report for Pratigya Campaign which is a network working for gender equality and safe abortion access, stated that a pregnant woman in India cannot go to a certified provider and say, ‘I want you to terminate this pregnancy because that is what I want,.’ This is because if the doctor says no, that’s the end of it.

Punishment for committing an illegal abortion

It is necessary to note that an abortion that does not fulfill the aforementioned conditions is considered a crime under the general law on crimes in India. The grounds for the same have been laid down hereunder: 

  1. Abortion of pregnancy which is under 4 to 5 month: The penalty for having an unlawful abortion is up to three years in prison and/or a fine. Unless it was done in good faith to save the mother’s life, both the mother and her doctor are regarded to have committed a crime.
  2. Abortion of over 5 month pregnancy: If the abortion is performed while the foetus is moving, the penalty is increased. This is referred to as quickening, and it normally occurs between the periods of 17 and 20 weeks. Unless it was done in good faith to save the mother’s life, both the mother and her doctor may face up to seven years in prison and a fine.
  3. Abortion without the woman’s consent: If someone else compels the mother to have an abortion or performs one without her consent, the person resorting to coercion might face up to ten years in prison and a fine.
  4. Abortion resulting in death: If a patient dies as a result of a botched abortion or an abortion performed by an inexperienced individual, the doctor who performed the procedure might face up to ten years in prison and a fine. If the abortion was performed without the patient’s consent, the penalty is life in prison.
  5. Intentionally causing the death of a foetus:  Intentionally killing a foetus can also be tried under various provisions of the Indian Penal Code, 1860, with a maximum sentence of ten years in prison.

Is abortion legal for an unmarried female in India 

In India, the right to choose abortion is not ‘equal’ for all women as unmarried women face the majority of the burden. Medical abortions were permitted up to 9 weeks of pregnancy and surgical abortions were permitted up to 20 weeks of pregnancy under the Medical Termination of Pregnancy Act (MTP) of 1971. The Medical Termination of Pregnancy (Amendment) Bill, 2020, extended the period a woman can get an abortion and limited the circumstances in which the surgical procedure can be performed. While the MTP Act of 1971 required one doctor’s opinion if the abortion was performed within 12 weeks of pregnancy and two doctors for abortions performed between 12 and 20 weeks, the amended Act of 2021 allows for one doctor’s advice if the abortion is performed within 20 weeks of pregnancy and two doctors’ advice in certain cases between 20 and 24 weeks of pregnancy.

In the states of Bihar and Jharkhand, 549 unmarried women between the ages of 15 and 24 had abortions, according to a survey performed in 2007-2008. According to research published in Guttmacher, India has roughly 15.6 million abortions every year. In separate research done at the same time among unmarried female college students, it was discovered that 9% of women reported an unexpected pregnancy, the circumstances of which were not clearly specified. The 2021 Act recognizes that unmarried women have the right to have a legal abortion.

The high number of abortion cases among both unmarried and married women in India highlights the urgent need for sex education programmes, improved communication between children and their parents, and education for the male partner to foster a healthier and more responsible attitude toward female reproductive health. 

Legal abortion with conditions applied 

Unmarried Indian women have the legal right to medical abortion. If the woman is unmarried and over the age of 18, the doctor simply requires her written consent. If the unmarried lady is below the age of 18, a guardian’s written consent is required before the abortion can be performed. Unmarried women can seek lawful pregnancy termination in the following situations:

  1. If the pregnancy is the consequence of rape or other forms of sexual violence.
  2. If the pregnancy is threatening to the mother’s or the baby’s bodily or mental wellbeing.
  3. If the infant has a chance of developing physical defects after delivery.
  4. If the pregnancy is the consequence of failed contraception.

Concerning information for unmarried women seeking abortion

  1. Unmarried women should understand that the decision to keep or abort a child is entirely up to them. Nobody can force any woman, married or single, to undergo an abortion, whether inside or outside the family. Anyone who compels a woman to get an abortion or perform one without her permission can be sentenced to ten years in jail and a fine.
  2. If the unmarried mother of the unborn child wants an abortion, she can go to any licenced obstetrician or gynecologist for a safe and medically permitted procedure. 
  3. While abortion for unmarried women is permitted in India, abortion based on the foetus’s gender is deemed illegal. It is prohibited to do any sort of test to identify the gender of the foetus, according to the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. Anyone who seeks an abortion based on the foetus’s sex, as well as the doctor who performs the abortion on such grounds, can face up to seven years imprisonment.

Issues faced by unmarried women seeking an abortion 

India is still a conservative country in terms of gender relations. It does not recognize premarital relationships or pregnancy outside of marriage due to its stringent social, cultural, and religious foundation. Unmarried women’s pregnancy is always viewed as a social embarrassment. However, with economic independence, social progress, and improved living conditions, there is more flexibility in gender relationships, and premarital sexual relationships are becoming more common, leading to a rise in the number of unmarried pregnancies.

According to a recent poll, 15% of males and 4% of women admitted to having had premarital sex. The fact that sexual abuse is on the rise is another reason for alarm. According to a 2007 study published by India’s Ministry of Women and Child Development, 150 million girls and 73 million boys under the age of 18 have been exposed to forced sexual intercourse or other types of sexual assault. These premarital sexual encounters result in unwanted pregnancies, which are nearly often terminated due to the enormous social and financial burden placed on the person and family.

In India, there are various barriers in the way of an unmarried woman getting an abortion. The first roadblock is their inability to detect that they are pregnant quickly. This is due to a lack of a broad understanding of reproductive health. Fear of society, social duties, or a lack of support from their spouses and parents are among the reasons why unmarried women seek abortions in a haste.

Judicial reach out to unmarried women 

The Bombay High Court’s Nagpur Bench on 4th February 2022, permitted a rape victim to terminate her 25-week-old pregnancy, stating that a pregnancy caused by rape would bring sorrow and substantial harm to the girl’s mental health while deciding on the case of X v. State of Maharashtra (2022). As the pregnancy lasted longer than the 24-week limit set by the Medical Termination of Pregnancy Act, 2021, the Court considered the judgment of a certified medical practitioner in determining the risk to the pregnant woman’s bodily and mental health. The medical board’s report stated that “as the girl is unmarried, the constitution of pregnancy will harm the girl, physically as well as mentally, and if the baby is delivered, it will not receive any proper care.” A Bench of Justices SB Shukre and AL Pansare based their decision on the medical board’s report. It was also said that a complaint had been filed regarding the occurrence, that the police had recorded an offence punishable under Section 376 (2)(n) of the Indian Penal Code, 1860, and that an investigation was underway. The Court, on the other hand, ordered that the girl’s written consent be obtained before the pregnancy be terminated.

In the case of Ramesh Rathod v. State (2018), the Bombay High Court was dealing with the termination of a pregnancy of a minor that was the result of rape. The minor was represented by her father to seek termination before the Hon’ble High Court. The pregnant minor’s mental health would be harmed if the pregnancy was continued, according to medical opinion. While the Court allowed the abortion, it did so with the understanding that the minor girl had a say in the pregnancy. The right to make one’s own decisions could not be taken away irrespective of the mother’s age. The Court had further observed that the legislation on abortion has also broadened the definition of MTP by adding “damage” to mental health, in addition to bodily harm. Despite the fact that the pregnancy was the consequence of physical abuse, the survivor’s decision had to be supported.

Further in Alakh Alok Srivastava v. Union of India (2020), the Court relied on the medical board’s view that continuing the pregnancy was safer for the unborn child than terminating it in one of these rejections involving the rape of a minor. The Court decided not to grant abortion where the petitioner was a 10-year-old pregnant rape victim with a 32-week pregnancy. The Court had urged the Centre to direct the establishment of permanent medical boards in states to quickly consider requests for abortion beyond 20 weeks of pregnancy, and the Centre issued directions to that effect.

Landmark judgments on legality of abortion in India

In 2016, there was an uptick in cases filed in the Supreme Court requesting authorization to terminate pregnancies that were more than 20 weeks old. There were a total of 21 cases before the Supreme Court from June 1, 2016, to February 3, 2018. Out of the 21 cases, one of the lawsuits in relation to the case of Anusha Ravindran v. Union of India (2019) concerned a petition to form committees to make revisions to the MTP Act as well as other recommendations for MTPs’ safe access. Among the five cases (in the group of 21 cases) that appeared before the Apex Court where MTP was rejected, two involved pregnancies that resulted from rape. In the case of Ms. Z v. State of Bihar (2017), the Supreme Court had determined that it was too late to authorise MTP since the pregnancy had progressed beyond 36 weeks. The Court, however, ordered the state to pay the petitioner INR 10 lakh in compensation, adding that the State and the High Court were irresponsible in not guaranteeing the supply of the MTP as soon as possible. 

The courts’ rulings that have been discussed hereunder are majorly based on the Medical Board’s recommendations. The Medical Board’s conclusions on the continuation and termination of pregnancy, rather than the woman’s reproductive rights, become the deciding element for the court. As a result, we must consider whether the courts should be completely reliant on medical board records or not. While the medical boards can assess the woman’s physical health, can they also identify the woman’s mental health and issues, which may necessitate her terminating her pregnancy? If a woman’s reproductive autonomy is to be safeguarded, shouldn’t her right to terminate a pregnancy be established by her? While some judgments can be seen to have taken into consideration the significance of the mother’s mental health, dependence on medical boards is a common event in the below-mentioned cases. 

Suchita Srivastava v. Chandigarh Administration (2009)

The Supreme Court of India in a landmark judgment of Suchita Srivastava v. Chandigarh Administration (2009) had declared that consent of a mental retardee for abortion is necessary.

Facts of the case 

The present case of Suchita Srivastava v. Chandigarh Administration (2009) involved an alleged rape of the victim (Suchita Srivastava) when she was a prisoner in a government-run welfare center in Chandigarh, which eventually resulted in her pregnancy. The Chandigarh Administration, which is the respondent, in this case, approached the High Court after learning of her pregnancy, requesting permission to terminate the same, despite the fact that she was not only mentally retarded but also an orphan with no parent or guardian to care of her or her child. After reviewing a preliminary medical assessment, the High Court decided to form an expert body of medical specialists and a judicial officer to conduct a detailed investigation into the case. The High Court had directed the termination of the pregnancy in spite of the fact that the expert body’s findings showed the willingness of the victim to bear a child. Aggrieved by the order, the appellants moved to the Supreme Court. The issues that the Court had framed were as follows: 

  1. Whether the High Court’s decision to order the termination of a pregnancy without the woman’s consent was right?
  2. What are the proper requirements for a Court to exercise ‘Parens Patriae’ jurisdiction, even if the stated lady is believed to be mentally incapable of making an informed decision?

Observations by the Apex Court

  1. The Supreme Court of India made it clear that there is no dispute that a woman’s freedom to make reproductive decisions falls under the definition of ‘personal liberty’ as defined by Article 21 of the Indian Constitution. It’s significant to understand that reproductive decisions may be used to both reproduce and refrain from procreation. The most important aspect is to respect a woman’s right to privacy, dignity, and bodily integrity. This indicates that there should be no restrictions on a woman’s reproductive choices, such as her ability to avoid sexual activity or her insistence on using contraceptive techniques.
  2. The Apex Court viewed that a woman’s reproductive rights include the right to bring a pregnancy to term, to give birth, and to raise her children. However, there is a ‘compelling state interest’ in saving the life of the unborn child in the case of pregnant mothers. As a result, a pregnancy can only be terminated if all of the requirements set out in the appropriate legislation are met. As a result, the provisions of the MTP Act of 1971 might be considered as fair limitations on the exercise of reproductive choices.
  3. The Court had noted that the victim had already been pregnant at about 19 weeks when the order of the high court was issued on July 17, 2009. The statutory limit for terminating a pregnancy (20 weeks), had passed by the time the issue was considered on an urgent basis by the Apex Court on 21.7.2009. The Court viewed that the setting of the maximum limit of 20 weeks (of the gestation period) within which a pregnancy may be terminated has a sound explanation as there is a strong medical agreement that an abortion done late in a pregnancy is extremely likely to affect the woman’s physical health.
  4. In view of the foregoing findings, the Apex Court concluded that the high court’s order terminating the victim’s pregnancy was not in her ‘best interests.’ Because the victim had not agreed to the operation, performing an abortion at such a late time may have jeopardized the victim’s physical health and caused her considerable emotional agony. The Court reasoned that the victim’s pregnancy could not be terminated without her consent, and doing so would have been against her ‘best interests.’ The text of the MTP Act unambiguously protects the personal liberty of mentally challenged people above the age of majority. The Apex Court therefore could not allow a reduction of the necessity of permission for continuing with a pregnancy termination since none of the other legislative prerequisites had been satisfied in this case.

Tapasya Umesh Pisal v. the Union of India & Ors (2017)

In the present case of Tapasya Umesh Pisal v. the Union of India & Ors (2017), the Supreme Court of India in the interest of justice, the petitioner was permitted to undergo MTP. The Court had observed that it is difficult for them to deny the petitioner permission to seek medical termination of pregnancy although the foetus is allowed to be born, would have a limited life span with serious handicaps, which cannot be avoided. It appears that the baby will certainly not grow into an adult.

Facts of the case 

Tapasya Umesh Pisal, a 24-year-old woman, had addressed the Supreme Court under Article 32 of the Indian Constitution, requesting the Court to direct the defendants to allow her to have her pregnancy terminated medically. Her foetus had been diagnosed with tricuspid and pulmonary atresia, a heart defect of the unborn child and she had also sensed a threat to her life. The petitioner was evaluated by the Medical Board, who determined that she was in her 24th week of pregnancy as of August 7, 2017. Her husband was beside her, and they were both aware of the heart defect and the related morbidity for the baby if it was born alive.

Decision by the Supreme Court of India 

  1. The Apex Court had observed that the continuation of the pregnancy would put the pregnant woman’s life at risk, as well as the mother’s physical and emotional health. There is a significant probability that if the child is born, it will be severely handicapped due to physical or mental defects. In these circumstances, it was difficult for the Court to deny the petitioner permission to have the mother’s pregnancy terminated medically. 
  2. In the interests of justice, the Court believed it was reasonable to allow the petitioner to undergo medical termination under the terms of the Medical Termination of Pregnancy Act, 1971.

Meera Santosh Pal v. the Union of India (2017)

In the case of Meera Santosh Pal v. the Union of India (2017), the Supreme Court of India reaffirmed that under Article 21 of the Indian Constitution, a woman’s freedom to make reproductive decisions is protected as a component of personal liberty. The Court held that the petitioner had the right to safeguard and save her life by making an educated decision in this circumstance, based on the principle of personal liberty. 

Facts of the case 

Meera Santosh Pal, a 22-year-old woman, had petitioned before the Apex Court under Article 32 of the Indian Constitution, requesting the Court to allow her to have her pregnancy terminated medically. She had realised that she was in grave danger after learning that her pregnancy had been diagnosed with anencephaly, a condition that causes the foetal skull bones to remain unformed and was both untreatable and guaranteed to result in the infant’s death during or shortly after birth. This disorder is also known to put the mother’s life in jeopardy. In the 24th week of her pregnancy, the petitioner had approached the Supreme Court of India. A foetal anomaly was the basis for the abortion. The Medical Board had also determined that the foetus was not viable and would not survive. 

Supreme Court’s observations

  1. The Court observed that despite the fact that the pregnancy was in its 24th week, it would be reasonable to allow the petitioner to terminate the pregnancy due to the risk to the mother’s life and the foetus’ incapacity to live outside the womb. The most important aspect is that she has the right to take any and all measures required to protect her own life from needless harm. Given the threat to her life, there is no doubt that she has the right to defend and preserve her life, especially because she has made an educated decision. Her freedom to exercise it appears to be within the bounds of reproductive autonomy.
  2. The Court concluded that they found it appropriate in the interests of justice to permit the petitioner to undergo medical termination of her pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971.

Roshni v. the State of M.P (2019)

Justice Vivek Rusia of the Madhya Pradesh High Court was considering a writ petition to allow the petitioner’s pregnancy to be terminated medically in the recent case of Roshni v. the State of M.P (2019). The petitioners had prayed before the Court to allow her to terminate her pregnancy since the radiologist’s report revealed that the foetus’ right kidney was not visible and that there were other issues. The doctor who was treating the petitioner stated that based on his assessment, the unborn child may not survive even for 2-3 days after birth.

Facts of the case 

In the present case, the petitioner claimed that as the foetus was more than 20 weeks old, the doctor had refused to terminate the pregnancy under the Medical Termination of Pregnancy Act of 1971. The petitioners’ learned counsel cited the Supreme Court’s decision in X v. the Union of India (2016) in which the Court had observed that Section 5 of the 1971 Act provided an exception to Section 3 if two registered medical practitioners gave an opinion in good faith regarding the termination of pregnancy to save a pregnant woman’s life. The Supreme Court had given the petitioner the right to abort her pregnancy based on the aforementioned provision. In the 2019 case, the petitioner had requested the Court that a committee of doctors be formed to advise on whether or not pregnancy termination should be permitted.

Observations by the court of law 

The competent Medical Board had already been instructed by the Hon’ble High Court to evaluate the petitioner’s health status and verify the report that was presented before the Court. The Board responded to the order by stating that such a termination was not feasible beyond 20 weeks of pregnancy. On the petitioner’s request, the Court also ordered the respondents to immediately form a Committee of five senior doctors to examine the petitioner’s physical condition and, if it was determined that the petitioner’s pregnancy was not dangerous to her life, the Committee may proceed with the termination of her pregnancy.

Issues with abortion laws in India 

The Medical Termination of Pregnancy (MTP) Act in India has only been revised twice in its 50-year history, first in 2002 and again in 2021. In the meanwhile, medical technology has advanced dramatically, including the availability of safe and straightforward abortion tools such as manual vacuum aspiration and pharmacological medicines, as well as tests that may detect serious foetal defects closer to and after 20 weeks of pregnancy. Apart from medical advances, understanding and appreciation of the need for women to have complete control over their bodies have grown, as evidenced by several progressive court judgments in India, such as those in the Supreme Court’s Puttaswamy Judgment, Anil Kumar Malhotra v. Ajay Pasricha (2017), and Suchita Srivastava v Chandigarh Admin (2009), as well as international conventions and international platforms like the Convention on the Elimination of All Forms of Discrimination and the International Conference on Population and Development.

The 194 writ petitions submitted by women wishing to have their pregnancy medically terminated, that were considered by the Supreme Court and the High Courts between June 2016 and April 2019 revealed various systemic flaws that led to unpredictable, variable, and inconsistent outcomes. In cases of rejection, the duration of the pregnancy and the medical board’s decision were frequent themes. Beyond the subjective interpretation of the Act, neither element addressed the petitioner’s medical report or the impact on the lady.

The previous findings of Pratigya Campaign on the availability of medical abortion medications demonstrated that the legal inaccessibility of medical abortion pills was causing a great deal of harm to pregnant women. Unfortunately, overregulation based on the erroneous belief that restricting access to abortion pills will help stop the decline in the child sex ratio contributes significantly to access these hurdles. Abortion medicines are approved for usage up to nine weeks of pregnancy. Using the most frequent and economical diagnostic technology, ultrasonography, to determine sex, is not viable during this time. Only around 13-14 weeks can ultrasound identify the foetus’s gender (early second trimester). The vast majority of abortions in India, believed to be as high as 85 percent, take place in the first trimester.

The campaign against gender-biased sex selection has somehow been entwined with women’s rights and access to abortion, which the MTP Act allows. As a result, pharmacists believe that stocking medical abortion medications expose them to more scrutiny. They are advised informally not to sell such tablets, to preserve copies of prescriptions, and in certain circumstances, to keep track of the purchaser’s name, which is an obvious breach of the MTP Act, guaranteeing women’s privacy.

Judicial inconsistencies

The MTP Act only refers to a vague “immediately essential to preserve the pregnant woman’s life” requirement in instances above 20 weeks, departing from the mental and/or physical health standard utilized in situations below 20 weeks. Mental and/or physical health might endanger life in the short or long term, which is exacerbated further by disparities in High Court discussions on the Act’s language. This has led to doctors applying restricted criteria used by the judiciary to circumstances that would normally be interpreted more widely and to the advantage of the woman/girl. Several circumstances permit MTP, with the caveat that serious mental trauma cannot be overlooked and must be a prominent consideration, particularly if the pregnancy is the consequence of rape. 

It’s important to remember that these limits were set when the law was initially passed in 1971, and they were based on medical technology available at the time. As a result, adopting such rules verbatim, without clear definitions, and without proper consideration of mental health and its consequences is extremely troublesome. This is exacerbated by the fact that the decision does not take into consideration a woman’s financial capability for child-rearing, which can have a significant influence on the woman and her family’s future.

Finally, the potential societal stigma associated with bringing a pregnancy to term for a juvenile, widow, or rape victim, as well as the repercussions this stigma may have on mental health, receives little consideration. As a result, the Indian judiciary is considered significantly weak in determining mental health impairment and the impact of mental trauma in abortion cases. To guarantee that justice is delivered consistently across the country, the Supreme Court should endeavor to establish a complete jurisprudence that explains specific terminology and processes in relation to abortion. 

Role of amendments 

The revisions to the MTP Act were expected to make it really current and progressive, showcasing India’s leadership in setting the world agenda on a delicate matter. While the new legislation is a step forward from the 1971 Act, it is still a long way from being completely inclusive. The wider concerns of women’s rights and access to safe abortion treatment are largely unaffected. The actual test of the amendments’ success will be their implementation and their ability to close access gaps. Simply legalising abortion does not ensure or imply accessibility. A significant amount of work in terms of access, putting in place a rights-based approach, telemedicine, and task sharing, is left to be done.

Despite the fact that abortion is classified as an “essential service,” the gap between abortion providers and abortion seekers is larger than it has ever been. Pratigya has worked to close the gap by compiling a directory of licenced MTP providers, allowing pregnant women to connect with a trusted practitioner. The database has been accessed by over 2,000 people since its launch in late 2020, with the majority of them asking where to consult and who to contact. There stands a significant requirement to examine the MTP Amendment Act’s Rules and Regulations from a progressive viewpoint to ensure that the opportunity to increase the service provider base and fix access gaps is not wasted in the times to come.

Conclusion 

Although the Indian judiciary has welcomed post-20-week abortions among females, the absence of a manner that places women’s choices at the centre and a robust law that lays down detailed procedures for abortions can be felt heavily. Legislation that respects women’s reproductive choices needs to be framed in independent India. Abortion is definitely legal in India provided the grounds discussed in this article are complied with. But it remains to be a restricted right for even the modified abortion legislation in India gives physicians and not women, the final word in deciding whether or not to terminate her pregnancy. A progressive attitude surrounding abortion will therefore be welcomed in India. 

References 

  1. https://www.who.int/india/news/detail/13-04-2021-india-s-amended-law-makes-abortion-safer-and-more-accessible.
  2. https://reproductiverights.org/parliament-india-passes-abortion-reform-entrenches-barriers-access/.
  3. https://www.dw.com/en/abortion-in-india-bridging-the-gap-between-progressive-legislation-and-implementation/a-59853929.

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