This Article is written by Ankita Roy and Nikita Anand, students of Chanakya National Law University, Patna under Medical Law Campaign organised by Lex Repository.
We live in a country, where there has been strapping controversy as to the mother’s right to abortion, foetus’s right to life and their balancing interest. Abortion having different strings attached to it like, consent of partner, poor awareness, high fees etc. making abortion even more disputable However, the hypocrisy attached to it cannot be overlooked as when the woman aborts her child her morality remains intact but in the cases of unwanted pregnancy or sexual assault, abortion attaches the stamp of being immoral to the woman.
Abortion can be legally defined as an untimely delivery voluntarily procured with the intention to destroy the foetus.(1) In India, before 1971 it was estimated that there were about five million abortions every year out of which three million abortions were illegal.(2)The laws of abortion in India till the passing of the Medical Termination of Pregnancy Act had been honored more in breach than observance.
EVOLUTION OF ABORTION LAW
ABORTION LAW IN 1972-2000:
In the initial years, after enactment of the legislations of abortion there was a marginal increase of 8-10%in the number of approved abortion facilities and the number of abortions reported.(3)On the other hand, in the late 1980s & 90s there was a decline in the number of abortion reports. In 1990s, less than 10% of the abortions were reported to the government.Also, there was an estimated data about the illegal abortions.Safe abortion care services were not available widely at that time. In most of the States, around 20% of the health centres provides such services.The quality of service provided in public as well as private clinics were realised to be poor. Furthermore, the awareness of legality of abortion was low and there were misconceptions regarding the law prevalent among women.(4)
ABORTION LAW SINCE 2000:
India committed itself to safeguard human and reproductive rights of women. After certain consultative processes and involvement of various government and non-government organisations, the Medical Termination of Pregnancy (Amendment)Act, 2002 and Medical Termination of Pregnancy Rules,2003 were enacted. Under these Amendment and Rules, District Level Committees were made to allow the facilities to be provided in public as well as private clinics. After the enactment, the awareness of the legality of abortion and illegality of sex determination tests has risen. Also, the misconceptions about the service providers among the women has reduced, as in private clinics they are required to show the effective certification of allowance for abortion.
ABORTION AS FUNDAMEMTAL RIGHT
In SuchitaSrivastava v. V.Krishanan,(5) the SC & HC has substantiated that the woman’s liberty to decide if she wants to continue the pregnancy or not.Ithas been also held that the State has a responsibility to make sure her reproductive rights as an element as per Article 21, the Right to personal liberty, dignity, and privacy.
MEDICAL TERMINATION OF PREGNANCY ACT, 1971
Earlier, the increase in illegal abortion cases in unhygienic conditions by the untrained persons and resulting deaths turned out to be a matter of concern. Shanti Lal Shah Committee was formed in 1964 to look into the legalization of abortion. The Committee suggested that the penal laws were excessively restricted and should be liberalized.
The object of the Act is to confer right to privacy on women and to decide about her pregnancies. Section 3 is the operative part; it lays down the time period and conditions under which pregnancy is allowed to be terminated by the medical professionals. The time period is restricted to 12 weeks. But there are some exceptions to the said time period wherein the pregnancy can be terminated after 12 weeks but it should not exceed the time period of 20 weeks as per the Act. The cases where the pregnancy can be terminated are that such pregnancy would risk the life of pregnant woman or cause grave injury to her health either physical or mental and where there is risk that the child born would be seriously handicapped or will be having any mental or physical abnormalities.
Minor rape survivors are put under exception to the 20 weeks limitation in Section 3(2)(b).(6)Termination of pregnancy of an 18 year old rape victim was allowed on the basis that such unwanted pregnancy was making her mentally ill.(7)
An Amendment Bill, 2020 has been passed in Lok Sabha which seeks to change the period from 20 to 24 weeks as it denies the reproductive rights of women.
CRITICISM OF MTP ACT
While serving the purpose,MTP Act has its own criticism too. The MTP Act uses the term “physicians only”, eliminating mid-level health workers and other practitioners of medical field, this clearly shows its medical biasness. It also provides for the requirement of second medical opinion in the cases of second trimester. It clearly creates further restriction access especially in the rural areas. Moreover, as per the MTP Act, it is mandatory for the State to provide abortion services in all public hospitals, keeping in mind their exemptions from the regulatory processes applying for private sector. But this conflict in rule, certainly inflicts lack of transparency
LAWS AS PER THE INDIAN PENAL CODE
Talking about abortion laws under IPC,Sec. 312 to 316 deals with it, the same are dealtwith under the Chapter of Offenses affecting the Human Body.
Sec. 312 of the Code provides for the sentence of imprisonment for three years or fine or both for voluntarily causing miscarriage to a woman with child. And in case, if a woman is quick with child, the punishment may extend up to 7 years and fine.
Sec. 313 of the Code,talks about the consent of women,it makes no differentiation in dealing with ‘woman with child’ and ‘woman quick with child.’
Sec.316 of the Code does not make intention as an essential factor, only necessity to be held guilty is doing of an act, which is likely to cause death and it recognizes it as the offence only at the progressive stage of pregnancy, punishable with 10 years of imprisonment and fine.
APPROVAL CERTIFICATION TO PRIVATE CLINICS:
The MTP (Amendment) Act, 2002 brought a new reform in the abortion laws which allow the private institution to provide abortion services after getting approval from the Government. The MTP Rules,2003 establishes a District Level Committee for the purpose of certification approval to the private clinics for abortion and also provides for a punitive measure of 2 to 7 years of imprisonment to the provider of the facilities not approved by the Government.(9)
In caseof termination of an early pregnancy (up to seven weeks)the registered medical practitioner, as defined by the MTP Act, can prescribe the drugs at his clinic provided he has access to a place approved for terminating pregnancies under the MTP Act. The clinic providing the abortion facilities should display a Certificate of Allowance to this effect from the owner of the approved place. There is no specific infrastructure required in such clinics where drugs can be prescribed but the clinic should have an established referral linkage with an MTP certified site.(10)
SOCIAL ETHICAL ISSUES
Abortion not just affects the individual but it also impacts the society. It has always been a burning issue as to if abortion should be completely legalized or not? As every woman irrespective of their social class seeks for abortion for various reasons.
In India, under the MTP Act, abortion of married woman vs. abortion of an unmarried woman is two different connotations and for unmarried women, it is considered as a social stigma and this non-acceptance results in hindrance to safe abortion.
The lack of proper hygiene, staff, and facilities sometimes results in infertility, menstrual disturbance, and pelvic inflammatory diseases. In a few cases, this resulted in death as well.(11)
The SC in the case of Suman Kapur v.Sudhir Kapur(12)held that abortion by a lady without her husband’s consent would amount to mental cruelty and ground for divorce.
Also, irrespective of whether society considers abortion moral or immoral, it is the right which should not be snatched from a woman.
India has legalized the abortion to some extent but more liberalization of the laws is required to protect the basic rights of women. Nevertheless, it should be made certain that all norms and standardised protocols in clinical practice to facilitate abortions are followed in health care institutions across the country and awareness of such abortion services are required.
As per Betty Freedom, there is no freedom or equality for women, till they demand and take control over their bodies and reproductive process, and in contrary abortion has always been controversial. Though there have been laws for the same, they are violative of each other in some context.
Taking consideration of different economic, social, and religious aspects it creates a hindrance inachieving the real goal.Also,it is unfortunate that abortion is often used as an alternative to regular methods of family planning.Now the responsibility lies onauthorities for its proper implementation and on society to support and understand the psychology of women helping them to find the best solution possible.
- Glanville Williams, The Law of Abortions: Current Law Problems, Vol. 5 (1952), pp. 128, 138.
- K.D. Gaur, Abortion and the Law in India, Cochin University Law Review, Vol. XV, 1991 p. 123-143.
- Government of India; The Medical Termination of Pregnancy Act [Act No. 34, 1971]. 1971; Ministry of Health and Family Planning: New Delhi.
- Siddhivinayak S Hirve, Abortion Law, Policy and Services in India: A Critical Review, Taylor & Francis Online, (May 4th 2020, 22:45), (available at https://www.tandfonline.com/doi/full/10.1016/S0968-8080%2804%2924017-4).
- SuchitaSrivastava& another v.Chandigarh administration,SLP(C) 5845(2009).
- Abortion Laws in India, A review of court cases; Centre for the Health Law Ethics and Technology, Jindal Global Law School, (May 6th2020, 23:09), (available athttps://www.ipasdevelopmentfoundation.org/resourceFiles/48201803143858.pdf).
- Rajeshwari v. St. of Tamil Nadu, 1996 CriLJ 3795.
- Admin, BLOG- Protection of Children from Sexual Offences Act(POCSO Act)- Short Guide,lawyersgyan, (May7th 2020, 20:30pm);(available at https://lawyersgyan.com/blog/protection-children-sexual-offences-act-pocso-short-guide/).
- J. Sathyadevi& K. Gokul, Abortion Law In India, JLSR Journals, (May 5th2020, 08:50pm), (available at http://www.jlsrjournal.in/).
- Government of India, Ministry of Health and Family Welfare, Comprehensive Abortion Care- Training and Services Guidelines, (May 8th 2020, 22:30), (available at https://nhm.gov.in/New_Updates_2018/NHM_Components/RMNCHA/MH/Guidelines/CAC_Training_and_Service_Delivery_Guideline.pdf).
- Govt of India, Annual Report,2000-2001, Government of India Press (Ministry of Health & Family Welfare, 2001).
- AIR 2009 SC 589.
- Bhavish Gupta &Meenu Gupta, The Socio-Cultural Aspect of Abortion in India: Law, Ethics& Practice, ILI Law Review, (available at http://ili.ac.in/pdf/p10_bhavish.pdf).
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