Abortion Law in India

Introduction

Abortion[1] is one of the subjects that have been discussed both extensively in both national and international level. It has become a controversial issue all over the world. Everybody is in a dilemma whether a mother has a right to terminate her pregnancy at any time she wishes or an unborn child has a right to life.

The right to life is a broad concept and fundamental of all. In India right to life has been recognised under Article 21 of the Constitution of India which says that “No person shall be deprived of his life and personal property except according to the procedure established by law”. Person includes both men and women. Among various rights which are available to a woman, the right to abortion is also believed to one of the most essential and fundamental right. Right to abortion has been recognised under right to privacy which is a part of right to personal liberty and which emanates from right to life[2]. But the question always arises whether an unborn child should be considered as human being and should be given the status of a person or not. There are various aspects such as religious, ethics, moral and legal value that rule over the aspect of right to abortion. Abortion is severely condemned in all religious. But inspite of that all the question arises whether the mother has the right to abortion or the child has the right to life.

Abortion in India is legal in certain circumstances. It can be performed on various grounds until 20 weeks of pregnancy. In exceptional cases, a court may allow a termination after 24 weeks.

Abortion and the law in India

The Indian Penal Code 1862 and the Code of Criminal Procedure 1898, with their origins in the British Offences against the Person Act 1861, made abortion a crime punishable for both the woman and the abortionist except to save the life of the woman. The 1960s and 70s saw liberalization of abortion laws across Europe and the Americas which continued in many other parts of the world through the 1980s.  The liberalization of abortion law in India began in 1964 in the context of high maternal mortality due to unsafe abortion. Doctors frequently came across gravely ill or dying women who had taken recourse to unsafe abortions carried out by unskilled practitioners. They realized that the majority of women seeking abortions were married and under non-socio-cultural pressure to conceal their pregnancies and that decriminalizing abortion would encourage women to seek abortion services in legal and safe settings.

The Shah Committee, appointed by the Government of India, carried out a comprehensive review of socio-cultural, legal and medical aspects of abortion, and in 1966 recommended legalising abortion to prevent wastage of women’s health and lives on both compassionate and medical grounds. Although some States looked upon the proposed legislation as a strategy for reducing population growth, the Shah Committee specifically denied that this was its purpose. The term “Medical Termination of Pregnancy” (MTP) was used to reduce opposition from socio-religious groups averse to liberalisation of abortion law. The MTP Act, passed by Parliament in 1971, legalised abortion in all of India except the states of Jammu and Kashmir.

The Medical Termination of Pregnancy Act 1971 and Regulations 1975

The MTP Act confers full protection to a registered allopathic medical practitioner against any legal or criminal proceedings for any injury caused to a woman seeking abortion, provided that the abortion was done in good faith under the terms of the Act. The Act allows an unwanted pregnancy to be terminated up to 20 weeks of pregnancy, and requires a second doctor’s approval if the pregnancy is beyond 12 weeks. The grounds include grave risk to the physical or mental health of the woman in her actual or foreseeable environment, as when pregnancy results from contraceptive failure, or on humanitarian grounds, or if pregnancy results from a sex crime such as rape or intercourse with a mentally-challenged woman, or on eugenic grounds, where there is reason to suspect substantial risk that the child, if born, would suffer from deformity or disease. The law allows any hospital maintained by the Government to perform abortions, but requires approval or certification of any facility in the private sector.

In the event of abortion to save a woman’s life, the law makes exceptions: the doctor need not have the stipulated experience or training but still needs to be a registered allopathic medical practitioner, a second opinion is not necessary for abortions beyond 12 weeks and the facility need not have prior certification.

The Medical Termination of Pregnancy Rules and Regulations 1975 define the criteria and procedures for approval of an abortion facility, procedures for consent, keeping records and reports, and ensuring confidentiality. Any termination of pregnancy done at a hospital or other facility without prior approval of the Government is deemed illegal and the onus is on the hospital to obtain prior approval.

Medical Termination of Pregnancy (Amendment) Bill 2020

The lower house of the Parliament passed the Medical Termination of Pregnancy (Amendment) Bill 2020 in the current budget session on March 17, 2020. This bill amends the earlier Medical Termination of Pregnancy Act 1971. Some key features of the new Bill include: Extension of the gestation period for termination of pregnancy from 20 weeks to 24 weeks, directions to constitute a Medical Board in every State and protecting the privacy of women whose pregnancy has been terminated.

The Bill proposes to increase the upper limit for termination of pregnancy from 20 weeks to 24 weeks. However, from sub-section 2 (b) of the bill, it appears that this extension of the limit will only apply to special categories of women. The “special categories of women” include rape survivors, victims of incest, the differently-abled and minors.

Abortion Rate in India

A total of 15.6 million abortion took place in India every year, against the 7 lakhs figure which the centre puts out every year from the last 15 years. Not only do a lot more Indian women than previously thought undergo abortions every year, an overwhelming number 81% take medicines at home instead of going to hospitals, the study has said. India’s abortion rate is 47 per, 1000 women of reproductive age, which is similar to rates in Pakistan (50), Nepal (42) and Bangladesh (39).

Current law and Policy: What is still missing?

A major criticism of the MTP Act is its strong medical bias. The “physicians only” policy for providers excludes mid-level health providers and practitioners of alternative systems of medicine. The requirement of a second medical opinion for a second trimester abortion further restricts access, especially in rural areas.

A major gap in abortion policy in India is the lack of explicit policy on good clinical practice and research. National technical guidelines published in 2001 do not conform with WHO’s international guidance and fail to ensure good clinical practice even at approved abortion facilities. Consequently, sharp curettage by 39—79% of providers and continued use of general anaesthesia in 8—15% of reported abortion facilities are still prevalent. India has simply not found a way to ensure the use of improved and safer abortion practices brought about through research and continuously evolving reproductive technology.

Understanding of Right to Abortion in India

In India abortion laws are coming under S. 312 to 316 of IPC 1860 and MTP ACT 1971. By analysing the MTP Act 1971 we will find that this act does not give any right to abortion to a woman for terminating her pregnancy. The complete decision depends upon the medical practitioners. If the medical practitioner in good faith will approve then pregnancy can be terminated. Here IPC and MTP Act infringes the right to privacy, right to health, and right to dignity of a woman which has been guaranteed by Article 21. If abortion on demand ( in case of rape or for other reason) is not allowed under safe condition and is restricted then woman will go for unsafe abortion which leads to mortality and death of women infringing right to health and right to live with human dignity.

In India, in various statutes also an unborn has been defined as a legal person by fiction. An unborn acquires right only after being born alive. So the state is required to interfere in abortion matter only after the stage of viability.

Conclusion and Suggestion

When does life begin, has not been recognized under any statute. So by analysing the Constitutional provision of India, I found that a woman has a right to choose to have abortion and her right prevails over the right of an unborn.

India should make abortion laws liberal and any law relating to abolition of abortion is nothing but a clear violation of a women’s right. It violates women’s right to health, right to dignity, right to liberty and right to privacy. Abortion must be legally permitted in order to protect the most basic right of women.

Cases:

  1. The Niketa Mehta Case.
  2. Samar Ghosh  v. Jaya Ghosh.
  3. Dr. Mangla Dogra & Others  v. Anil Kumar Malhotra & Others.

Questions:

  1. Who can perform an abortion in India under the law?
  2. When can a woman undergo an abortion?
  3. Is abortion confidential in India?
  4. Does a woman require a written consent of her husband to get an MTP done?
  5. What is incomplete abortion?

Reference:

  1. https://www.tandfonline.com/doi/full/10.1016/S0968-8080(04)24017-4
  2. Government of India. Report of the Shah Committee to study the question of legalization of abortion. 1966; Ministry of Health and Family Planning: New Delhi.
  3. Government of India. The Medical Termination of Pregnancy Act [Act No. 34, 1971]. 1971; Ministry of Health and Family Planning: New Delhi.
  4. Government of India. Medical Termination of Pregnancy Rules and Regulations. Vide GSR 485(E) and 486(E). 2003; Gazette of India: New Delhi.
  5. https://clpr.org.in/blog/medical-termination-of-pregnancy-amendment-bill-2020/

[1] Abortion is the termination of a pregnancy by the removal or expulsion from the uterus a fetus or embryo which occurs unintentionally is called spontaneous abortion..

[2] Roe V. Wade 410 US 113 (1973).

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