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This article is written by Ansruta Debnath, a student currently pursuing the BA LLB degree from National Law University Odisha. This article is on the rights that Indian women are accorded in relation to abortion.

Introduction

Abortion Laws are under constant debate and in the past few years have been frequently re-hauled and re-amended. Clearly, such a need arises because of the rapidly changing demand to recognize the rights available to women as well as to take into account the rate at which technology is advancing. Thus, there is a need to study the legal provisions that exist now so that implications for the future can be analysed. This article mainly focuses on the most recent amendment, the Medical Termination of Pregnancy (Amendment) Act, 2021 and its implications in India.

Historical background of abortion laws in India

The Indian Penal Code, 1860 and Criminal Procedure Code, 1898  outlawed abortion since its inception. Section 313 to Section 316 deal with this subject matter and had made illegal any act, by someone else or the woman herself, that causes a miscarriage of the unborn child of the woman. The only way medically induced miscarriage was allowed was when it was done in good faith to save the life of the woman at risk.

Changes came about in the 1960s when the Shantilal Shah Committee was constituted to study the rising cases of maternal morbidity due to illegal abortions being done by quacks all over the country. In their report, on the study of the question of law with regards to legalising abortions, the Committee strongly recommended that the abortion laws be relaxed. Because of those recommendations, the Medical Termination of Pregnancy Act came about in 1971 (largely modelled on the Abortion Act, 1967 of the United Kingdom) 

Before 2021, the MTP Act, 1971 had been amended in 1975, 2002, 2005 and 2020.

Right to choose motherhood : a perpetual debate

The Bombay High Court in a case of XYZ v. Union of India and Ors. (2019) 3 Bom CR 400 held that the right to control a woman’s body and fertility rests completely with herself. Therefore, in a situation where continuance of pregnancy poses grave injury to the physical or mental health of the mother or in a situation where there is a substantial risk that if the child were born, would suffer from deformities and diseases, the pregnant mother is forced to continue with her pregnancy. This is merely because pregnancy has extended beyond the ceiling of 20 weeks and such an imposition seriously undermines the fundamental right of the mother to privacy, to exercise her reproductive choice and to bodily integrity and dignity.

The fact that the bodily autonomy of women cannot be controlled by anyone needs to be kept in mind. The liberal feminist theory emphasizes individuality. Moreover, post-modern feminist theory has reinvigorated this concept. 

On the other side, apart from religious connotations, most people attempt to defend anti-abortion views by citing Article 21 of the Indian Constitution. Article 21 provides the Right to Life to all persons. Thus in this context, the foetus in the womb of the mother is considered to be a “person”, something that needs to be decided in jurisprudential terms. 

The question arises whether a pregnant woman is a single individual or two individuals. If it is considered that the unborn foetus is a potential individual then the latter becomes true. The heart of this dichotomy spirals into the fundamental debate that underscores all discussions related to abortions: pro-life vs. pro-choice.

Notwithstanding the concept of dual individuals, most feminists see the age-old restrictive abortion laws as just another way of controlling the female body. The patriarchal society, that made the laws years back, still exists and is able to subtly influence all the laws that are made for it even today.

Need for an amendment : issues with the Medical Termination of Pregnancy Act, 1971 

The MTP Act of 1971, in the present context, had failed to address a number of issues-

  • Due to limited gestation period and approval of abortions in only certain specific scenarios, women from various sections of society were getting mentally as well as physically harmed. The maximum limit was set at 20 weeks and the rationale behind it was abortion beyond that period was dangerous to the health of the woman.
  • To get the approval of abortion cases outside the ambit of those specified in the Act, numerous writ petitions have been filed in the courts, adding to the huge caseload that Indian courts face today.
  • Judges in many scenarios approved abortions that were beyond the ambit of the provisions giving rise to ambiguities and confusion. 
  • Moreover, provisions were being challenged through Public Interest Litigations for being too restrictive. 
  • Technological advancement has enhanced and improved the way abortions could happen and these had to be addressed in a cohesive manner.

The Medical Termination of Pregnancy (Amendment) Act, 2021

As mentioned above, the Medical Termination of Pregnancy Act, 1971 was much criticised for a number of features. Accordingly, the Medical Termination of Pregnancy (Amendment) Act, 2021 was enacted and brought about by Presidential assent on the 25th of March, 2021 and came into force on the 24th of September, 2021.

The Medical Termination of Pregnancy (Amendment) Rules, 2021 were notified by the Central Government in the month of October 2021. These rules were notified according to Section 6 of the original MTP Act, 1971 which gave the power to the Central Government to make rules and regulations, by notification in the Official Gazette, to give effect to the provisions in that said Act.

The Amendment inserted, through Section 2(e) for the first time the definition of “termination of pregnancy” in the Act and defined it as a procedure to terminate (or end) pregnancy by medical or surgical methods.

The Amendment has given rise to a number of new guidelines that have been created with regards to the medical termination of pregnancy. They have been enumerated below.

Application to unmarried women (failure of contraceptive)

The ambit of “grave injury to mental health” included, before, mental anguish caused to married women upon her pregnancy due to failure of a contraceptive of either the woman or her husband. However, the Amendment allows the application of this provision of injury to mental health due to the failure of contraceptives of any woman, including unmarried women and her partner.

Increase in the limit to Gestational Period 

According to Section 3(2) of the 1971 Act, abortion from 12 to 20 weeks was allowed when two registered medical practitioner was of the opinion, in good faith, that said pregnancy would cause grave mental and physical anguish to the pregnant woman or if the child so born would be substantially handicapped. 

However, according to the amendment, Section 3(2) has been modified to allow abortion up to 20 weeks if said rules come into play in the opinion (in good faith) of one registered medical practitioner. 

The upper limit for abortion has been increased to 24 weeks for categories of women (categories are prescribed by the rules), where abortion can be performed after approval by two medical practitioners. The 1971 Act had, before the amendment, had set the upper limit at 20 weeks.

According to Rule 3B of the Medical Termination of Pregnancy (Amendment) Rules, 2021, the revised categories of women who are eligible for abortion up to 24 weeks are-

  1. survivors of sexual assault or rape or incest;
  2. women who have not attained the age of majority, i.e., minors;
  3. women who have undergone a change in their marital status during the pregnancy;
  4. mentally ill women including mental retardation;
  5. women whose foetuses have substantial foetal abnormalities which make it incompatible with life or have malformations that might render the new-born substantially mentally or physically challenged;
  6. women with pregnancy in disaster or humanitarian settings or in emergency situations as may be notified by the Government.

Beyond 24 weeks – Medical Board

Provisions regarding abortion beyond the gestational period of 24 weeks have also been established through this amendment. Section 3(2C) of the 1971 Act was added to mandate the state or union territory to create a Medical Board in appropriate facilities. 

The powers and functions of the board have been enumerated under Rule 3A of the Medical Termination of Pregnancy (Amendment) Rules, 2021. One function of the medical board (which will consist of a gynaecologist, a paediatrician, radiologist or sonologist and other members as notified by the rules) is to deny or approve abortion beyond 24 weeks.

According to the Rules, the Medical Board shall examine the woman and her report who has approached the board under Section 3(2B) of the Amended Act, provide their opinion with regards to approval or denial of the application for abortion, and ensure that medical counselling is provided to the women within five days of receipt of application and if approved, the procedure is done with all appropriate precautions.

The decision to approve or deny will be based on the repercussions the abortion procedure will have on the pregnant woman. In case of foetal abnormalities, decision will be taken based on whether said abnormalities are incompatible with life or would cause the newborn to be born with substantial mental and physical abnormalities.

Privacy of women 

Another significant highlight of the Amendment Act of 2021 is Section 5A which has been inserted into the 1971 Act and talks about the protection of privacy of women undergoing an abortion. The registered practitioner performing the procedure is forbidden to reveal the details of said women to anyone other than a person authorised by law. Whoever breaks this rule will be punished with rigorous imprisonment of one year, or fine, or both.

Benefits of the Amendment Act

This amended law has made abortions safer and more accessible. The Amendment Act has aimed to make a more comprehensive law on abortion in India keeping in mind the wide categories of women that might need to make use of its provisions as well as the technological advancements made. A lot of ambiguities present previously have been addressed through the 2021 Amendment.

One of the major positives of the Medical Termination of Pregnancy (Amendment) Act, 2021 is the right to abortion provided to unmarried women. In a society as patriarchal as India, the stigma associated with the pregnancy of an unmarried woman is so deep; it has time and again forced them to employ extreme and dangerous measures that have been extremely detrimental to their physical and mental health. 

Another major achievement of this Amendment is its inclusion of a provision regarding the privacy of women undergoing an abortion, a concern that was extensively raised before the Amendment came about.

Limitations of the Amendment Act

Abortion beyond 24 weeks has been allowed in cases of diagnosis of foetal abnormalities by the Medical Board. However, in other cases, like rape, abortions beyond 24 weeks will not be allowed by the Board and legal recourse available to the rape survivor would be through petitions to the courts.

The time period within which the decision should be given by the Medical Board should have been specified in either the Act or the Rules, but it is not. In a country such as India which is heavily burdened by time delays in bureaucracy, this is a major hurdle, especially since pregnancy and abortion are such time-sensitive issues.

A primary reason which has been associated with women failing to adhere to the established time period of going for abortion is that they simply fail to understand and recognize they are pregnant in the first place. This leads to a plethora of problems including but not limited to the mental anguish that the woman needs to face with an unwanted pregnancy. Thus adequate measures must be taken by the Government to ensure that women are made properly aware of the female reproductive system.

Another major obstacle that women face is the non-acceptance that abortion has in Indian society. Article 47 of the Indian Constitution puts the onus on the Government to bring about and introduce policies that would raise the degree of public health. But bringing out only guidelines is not enough. What is important is to ensure that people are able to use and apply those guidelines in their life in the first place. Thus the Government needs to do things to ensure that abortion stops remaining the hush-hush taboo it is today. 

Finally, the Government must clarify whether “pregnant women” defined by the Act includes trans women as well. Technical advancements have made pregnancy possible in trans women through hormonal therapy and surgical intervention. In the present context, the state must ensure gender-inclusive laws are being enacted in all cases, not only in the case of abortion laws.

Conclusion

Thus the way forward is very clear. The Amendment Act of 2021 was much needed. But too much is still left open to interpretation- the Act has still been unable to get rid of its tag of “ambiguity”. Provisions related to trans women need to be added. All of this must be kept in mind when the legislature finds it necessary to amend the Act again.

References


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