Author: Priya Nath, Intern at Student of the BAR. Student of University Institute of Legal Studies, Punjab University, Chandigarh.
Introduction:
In a country like India where family and traditional values make the very core of our country, the gift of a child is a huge deal and the mere thought of aborting one raise too many moral and cultural questions for an individual, especially for the woman willing to undergo it.
By definition, Abortion is the deliberate termination of a pregnancy or expulsion of the fetus. In our legal system, the word Abortion is nowhere mentioned as such, but referred to as the ‘Medical Termination of Pregnancy’ and governed under the Medical Termination of Pregnancy Act, 1971.
Although getting an abortion should be solely a personal choice but there are many reasons as to why there should be law governing the ideal procedure and rules to adhere to, if choosing to get an abortion. For example, in parts of our society people would choose to abort the child, if not regulated, on discovering the female gender post sex determination. It is also one of the major reasons why sex determination is absolutely banned in India.
Laws Governing Abortion:
Indian Penal Code 1860
Section 312 of IPC criminalizes the intentional miscarriage which means abortion by the woman herself or any other person or the person who performed the it. Unless the miscarriage is not carried out for the purpose of saving the life of the woman and in good faith, it would be treated as illegal and a punitive offence. It could be interpreted that under no circumstance a woman could choose not give birth unless it was her own life that was at stake.
The increased number of abortion taking place alarmed the Govt. and a committee headed by Shantilal Shah was established in 1964 to draft a new abortion law for India which finally passed as the Medical Termination of Pregnancy Act, 1971
Medical Termination of Pregnancy Act, 1971:
Originally Section 3 of the Act states that, "despite what has been sanctioned in the IPc,1860, a pregnancy can be terminated within 12 weeks by any medical practitioner and within 20 weeks by not less than two medical practitioner if such practitioners are of the opinion that such pregnancy is a risk to the life of the woman or of grave injury to her physical or mental health and in the cases where there is risk that the child, if born would suffer from physical or mental abnormalities amounting to handicapped. It should be noted here that in cases where pregnancy arises as a result of an alleged rape, it is considered to be a grave injury to the mental health of the concerned female and in the cases where a pregnancy arises due to failure of any device or method used as a contraception, such unwanted pregnancy is also under the purview of grave injury to the mental health of the pregnant woman. "
Although the Act does not permit abortion after 20 weeks, but there have been several instances the court has allowed termination beyond 20 weeks on humanitarian grounds. For instance Supreme Court allowed termination for a woman who was pregnant 22 weeks based on the Medical Board’s opinion that continuing such pregnancy would cause her grave physical and mental injury[1].
In another case, the apex court allowed the termination of 32 week pregnancy of a 13 year old rape victim considering her age and her mental anguish of going through a sexual abuse and also on the recommendation of the experts on the Medical Board.[2]
However, it is not always the mandatory that the Court will consider just the age and the mental status of the appellant. In a noted case, a 10 year old who was 32 weeks pregnant was rejected termination because the Medical Board opined that such termination at that stage would put her in serious physical danger.[3]
So basically in cases where the period has extended 20 weeks, the Court mostly relies on the opinion of the Medical Board and takes a decision in best suited to the concerned female, which basically means that women do not have absolute reproductive rights.
As regards to the consent for the Abortion, according to the Act only the pregnant woman’s consent is required if she is the age of majority but if she is a minor or of unsound mind or subjected to any mental illness, valid consent of her guardian is required.
A panel if Indian researchers cited a research paper published in The Lancet Global Health, which said a total of 15.6 million abortions were carried out in India in 2015.[4] Of these, 11.5 million took place outside health facilities. Over the year, many cases have been reported where women were seeking permission to terminate pregnancy after 20 weeks and with the modern scientific methods and procedures, abiding by a 48 year old Act did not do justice to the individuals seeking a relief today. Hence few Amendments were made to the Act in last two decades. The most recent Amendment Bill was introduced and passed earlier this year in the Parliament.[5]
The key features of this Bill are:-
It increases the specified time limit for termination of pregnancy from 20 weeks to 24 weeks and further also allows a termination up to 20 weeks with the opinion of at least one registered medical practitioner and for beyond 20 weeks up to 24 weeks, opinion of at least two registered medical practitioners is required. Termination beyond 24 weeks is subject to the opinion of Medical Board.
Termination of pregnancy due to failure of contraception will not be limited to Married Women and even an unmarried woman could opt for Abortion under tis reason.
Privacy of the woman whose pregnancy has been terminated is of utmost importance and can only be revealed by the registered medical practitioner to a person authorized by law and violation this clause would be punishable with imprisonment o fine or both.
Only Medical Boards can decide if pregnancy may be terminated after 24 weeks due to substantial fetal abnormalities
However, the Bill although brings a considerable transformation in the age old Abortion law, there are still certain issues like the consent of the woman is not absolute and subject to a doctor’s opinion, termination beyond 24 weeks would not be allowed under any circumstance but fetal abnormalities alone, privacy cannot be absolutely assured and also in contravention to the POCSO Act 2012, non-inclusion of trans genders etc.
Conclusion:
According to 2017 records, almost 59 countries permit abortion on demand or elective one and out of these only 7 countries allow it after 20 weeks of the gestational period.[6] Once the Amendment bill is enacted, India will join this group as well. Efforts are being made to make it easier for women to properly make use of their reproductive rights as it is integral and part of the Article 21 of the constitution[7] which grants Right to Life and personal liberty to every citizen including women to make decisions regarding their bodies and well-being. But the existing laws suffer from various loopholes which need to be worked upon so that women do not have to feel forced to bear a child or go through with an unwanted pregnancy and suffer silently.
[1] Mrs X and Ors. v. Union of India and Ors. Writ Petition(Civil) No. 81 of 2017 [2] Murugan Nayakkar vs. Union of Indi & Ors. W.P. (C) No. 749/2017 [3] Alakh Alok Srivastava vs. Union of India W.P. (C) No. 565/2017 [4] Susheela Singh,Phd and Others, The incidence of abortion and unintended pregnancy in India,2015,The Lancet(January 01,2018), https://www.thelancet.com/journals/langlo/article/PIIS2214-109X(17)30453-9/fulltext#:~:text=We%20estimate%20that%2015%C2%B76,women%20aged%2015%E2%80%9349%20years. [5] The Medical Termination of Pregnancy (Amendment) Bill,2020 [6] Michelle Ye Hee Leeb, Is U.S. one of 7 countries that 'allow elective abortions after 20 weeks of pregnancy?', Washington Post (October 9,2017,8:50 A.M), https://journalgazette.net/news/fact-check/20171009/is-us-one-of-7-countries-that-allow-elective-abortions-after-20-weeks-of-pregnancy [7] Justice K S Puttaswamy v Union of IndiaW.P.(Civil) No494 2012a: para 72, 2012b: para 46, 2012c: para 38)
Comments