ABORTION: LAWS AND CHANGES REQUIRED IN INDIA

By Shivani Sengar, Law Student, ICFAI University, Dehradun

Introduction

Abortion the expulsion of the foetus from the uterus of the woman before it reaches the stage of viability. In India miscarriage is lawful in certain situations, it can be done due to various reasons until 20 weeks of gestation. In certain cases, court may allow a termination after 24 weeks. Before 1971, abortion was a crime in India stating it as intentionally causing miscarriage.[1] Except in the situations when the abortion was done to save the life of the woman. And also, whosoever carried out the miscarriage without the consent of the woman irrespective of whether the woman is quick with child or not, shall be punished with imprisonment for life or imprisonment for 10 years and also will be liable for a fine.[2] Legal frame work for the laws related to termination pregnancy initiated in 1960s when abortion was made legal in about 15 countries.

In 1964, Shah Committee was appointed by the government of India to carried out a comprehensive review of the socio-cultural, legal and medical aspects of abortion. In 1966, the committee suggested to legalize the abortion.

The Medical Termination of Pregnancy Act, 1971

The medical termination of pregnancy (MTP) Act, 1971 provides the legal framework for the termination of pregnancy in India. Termination of pregnancy was allowed till 20 weeks of gestation period on the following situations:

  • When there is risk to the life of pregnant women or could cause severe damage to her physical or mental health;
  • When there is a risk that the child born may be dead or could be seriously handicapped due to physical or mental abnormalities;
  • When pregnancy is caused due to rape;
  • When pregnancy is caused due to failure of contraceptives used by a married woman or her husband, it is presumed that it will cause grave injury to mental health of the woman.

But with the pace of time and with development in human life the law also keeps evolve accordingly. So, the very first time the Medical Termination of Pregnancy (MTP) Act 1971 was amended in 2002.  And again, in year 2014 the government to remove the defects and to solve the challenges facing by women in getting safe abortion services proposed the draft Medical Termination of Pregnancy (Amendment) Bill, 2014. The main features of this bill were to increase the legal abortion limit from 20 weeks to 24 weeks. Under the Act of 1971, even the victim of rape was not allowed to abort after the 20 weeks of gestation period, for this she had to seek to the court. The court too wanted that the mental and physical health of the victim should be given more priority. In one of the verdict of  a bench of three judges led by then, Chief Justice Dipak Mishra allowed 13 years old victim of rape to abort her 31 week old foetus.[3]  The most recently, Medical Termination of Pregnancy (Amendment) Bill, 2020, has been passed by the Parliament which sought to amend the Medical termination of pregnancy Act, 1971. Salient features of the amendments are:

Termination of Pregnancy

According to the act of 1971 the abortion can be done by a registered medical practitioner where the pregnancy periods does not exceed 12 weeks and the pregnancy which exceeds 12 weeks but does not exceed 20 weeks, the assent of two medical petitioners were required.[4] The amendment now made in the act permits abortion with the assent of one medical practitioner, and the assent of two medical practitioners will be compulsory for termination of pregnancy within 20-24 weeks. Separate category for termination beyond 24 weeks has been added. The women who can opt for an abortion at 24 weeks and beyond if:

  • They are rape victims.
  • Pregnancy is the result of incest.
  • Women is differently-abled.
  • Woman is minor as per the Indian majority act of 1875
  • Abnormalities in the foetus have been deducted during 24 weeks of gestation period.

Constitution of Medical Board

In the bill there is provision for the constitution of a medical board, that will examine the need for the termination of pregnancy once the upper limit of 24 weeks has passed. The board will constitute of medical experts such as gynaecologist, sonologist and radiologist.

Privacy clause for Protection

The bill adds the privacy clause which makes it a punishable offence for revealing the identity of any women who is seeking an abortion. No registered practitioner is allowed to reveal the name of the patient.

Certain glitches and problems in the Bill

The biggest lacunae being failed to expand provider base to offer safe abortion services to every woman who needs them. One in three of 48.1 million pregnancies in India end in an abortion, with 15.6 million abortions taking place in 2015, according to the country’s first large scale study on abortions and unintended pregnancies, study published in the Lancet in November 2017.[5]

The disability right movement activists argue against the MTP Amendment for several reasons. According to them the inclusion of the assent of the medical practitioners to terminate the pregnancies after 20 weeks in the case of disabled woman. They may feel unsafe and unsupported in the hands of most medical practitioners. The social scenario we live in it is difficult to find disabled-friendly medical personnel in the very first place.[6]

The bill still fails to give autonomy to the women which they deserve as, for their termination they are still depends on the decision of the doctors. A common misconception we all have that abortions are or should be restricted by the MTP Act to restrict female foeticide. But there is a need to understand that female foeticide is a separate issue and has nothing to do with the abortions and they are covered by the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT), which prevents sex-selection and disclosing the sex of the foetus to the parents and if found someone doing so will be punished.

And the another, issue with bill is that abortions can legally only be provided by experienced OB-GYN specialists. But after the advent of Manual Vacuum Aspirations (MVAs) and Electric Vacuum Aspirations (EVAs) the process of abortion has become simpler and requires basic training to do it, which can be done by any registered Medical Practitioner. There is no need of specialists as 50 years ago was but still the bill has made no changes to it. In rural areas it is difficult to find gynaecologist, and this huge bias of privilege.

The MTP bill has talked about the privacy, that the identity of the woman seeking abortion would not be disclosed. But what about the minor girls? Though not directly mentioned but it does not apply to minor girls. As according to the law, they cannot give consent to an abortion and the consent of the parents/guardian is required. Therefore, a pregnant minor woman whether married or unmarried is considered as victim of sexual assault, and the medical provider has to report about the pregnancy to the appropriate authorities, irrespective of the will of the girl.[7] The same thing can be seen under IPC, which states that sexual intercourse with a minor whether  with the consent or not, is considered rape.[8] So if a girl below 18 years of age approaching the doctor then the doctor is bound to report it as penetrative sexual assault, something the girl may not want and her matter of privacy has now become the matter of the state. This will lead to unsafe abortion by the minor girls.

Some changes in the language of the law could have also be done, the term pregnant person could replace pregnant woman, foetal anomaly cab be used in place of foetal abnormality. Such changes were there in the past MTP Act (Amendment) 2002. But the bill has replaced the word husband with the partner so marital status of the woman is no longer an issue.

As a whole the MTP Act is more liberal than the termination laws of most other countries. We might think that save and legal abortion is quite easy in India, but, an estimated 78% of abortions happened outside the proper medical facilities and most of them were illegal. Abortion in India still remains inaccessible to millions, it is imperative that we provide a legal system that makes the process easy. In this act more changes could have been done to make it more better and efficient.


[1] The Indian Penal Code, 1860, § 312, No. 45, Acts of Parliament, 1860 (India).

[2] The Indian Penal Code. 1860, § 313, No. 45, Acts of Parliament, 1860 (India).

[3] Supreme Court allows 13 year-old rape survivor to abort her 31-week-old foetus: The Hindu (September 6 2017), https://www.thehindu.com/news/national/supreme-court-allows-13-year-old-rape-survivor-to-abort-her-31-week-old-foetus/article19629701.ece

[4] The Medical Termination of Pregnancy Act, 1971, § 3, No. 34, Acts of Parliament, 1971 (India).

[5] Abortion bill 2020 is good, but not good enough: Hindustan times (Feb. 16, 2020), https://www.hindustantimes.com/cities/abortion-bill-2020-is-good-but-not-good-enough/story-6KVwb0oEpnK7kad12aRSoI.html

[6] Medical Termination of Pregnancy Amendment Bill, 2020: A Step in the Right Direction?: shethepeople ( July 18, 2020), https://www.shethepeople.tv/home-top-video/medical-termination-pregnancy-amendment-bill-2020/

[7] POSCO Act, 2012, § 19.

[8] The Indian Penal Code, 1860, § 375, No. 45, Acts of Parliament, 1860 (India).

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