Right to Abortion – The Need for Autonomy

Women in India still lack access to safe abortion care. Human rights should be available to everyone without discrimination in any form. Article 6(1) of the International Covenant on Civil and Political Rights prohibits the arbitrary deprivation of life. Although it exists in theory in practice bias is created in many forms and one such is the right to abortion. The right to abortion is believed to be one among many rights available to women. The right to abortion is no longer a right given to a mother but a tool in bringing justice to gender inequality, which concerns not just the stake of the women but the entire society, societal principles we are shaping for our future. This article will explain how abortion law has shaped over time and how the new amendment will impact and bring change to existing laws on abortion rights.

Introduction

A mother should have the right to abort for her very own interest or by her choice. The earlier termination of pregnancy was termed as the murder of the fetus. But due to changes in societal views and technology, this right got legal sanction by the famous decision of Roe v. Wade by the US Supreme Court. This judgment became one of the most politically significant Supreme Court judgments in history establishing that most laws against abortion violate the constitutional right to privacy.

In the facts of the case Jone Roe, the plaintiff wanted to terminate her pregnancy as it was a result of a rape. The court tried to balance the state’s legitimate interests with individual’s constitutional rights and ruled that state cannot restrict a woman’s right to an abortion during the first trimester, the state can regulate the abortion procedure during the second trimester for reasonable cases of maternal health and in the third trimmest, demarcating the viability of the fetus, a state can choose to restrict or even to proscribe abortion as fit for the case. Although the right to abortion is available to women in almost the majority of the countries the level of restriction put forth on the right varies.

Many feminist groups argue that the right to abortion is associated with the right to equality, bodily integrity, and self-determination.[1]

Abortion in India

In a patriarchal society like India, men hold primary power and predominate society at large including power in the domain of family.  In most families, women are still merely treated for their reproductive capacity.

Abortion in India is legal only up to twenty weeks of pregnancy subject to specific conditions and situations such as

  1. The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury of physical or mental health or
  2. There is a substantial risk that if the child were born, it would suffer from physical or mental abnormalities as to be seriously handicapped. Supreme Court however has permitted rape survivors to terminate their pregnancy at 24 weeks which is even beyond the 20 weeks’ limit rule under the Medical Termination of Pregnancy Act, 1971.

Due to sex-selective abortion, it has resulted in unnatural male to female population sex ratio. Millions of developing female fetuses are selectively targeted for termination before birth. These preferential termination of pregnancy were not even based on the perception of the women herself but cultural, religious, and socio-economic factors play a great role in influencing her decision. These have actually led to not granting abortion rights to women.

The abortion laws in India were introduced initially to curb the issue of overpopulation. Although abortion rights were a result of feminist struggle in most western countries, in India, it was brought about without any opposition and without any influence from the profile, pro-choice groups, and were not a result of any feminist struggle. In spite of the existence of major religions that considered abortion as a sin and opposed it the reforms did not experience any kind of public outcry.[2]India is one of the countries where the female population is comparably less than the proportion of the male population. According to UNICEF India’s Report on Child Sex Ratio, the birth of female children is declining steadily. Since 1991, 80% of all districts in India had recorded a declining sex ratio, with the state of Punjab being the worst in leading the statistics. For time immemorial women are deliberately denied the opportunities for growth in name of either religion or socio-cultural practices.

In pursuance of the recommendations of a UN mission in 1965, India appointed Shantilal Shah Committee on 29th September 1964 to study and make a recommendation on abortion rights. To stop illegal and unsafe abortions the committee recommended the legalization of abortion. The MTP Act came into effect from 1 April 1972 and was amended in the years 1975 and 2002.

Pregnancies not exceeding 12 weeks may be terminated based on a single opinion formed in good faith. In case of pregnancies exceeding 12 weeks but less than 20 weeks, termination needs the opinion of two doctors.

The main object of this act is

  1. To help unfortunate victim women of the forcible sexual act
  2. To help women who became pregnant as a result of failed contraception
  3. To reduce the risk of crippled children
  4. To help women whose physical or mental health was endangered by the pregnancy
  5. Women facing the birth of a potentially handicapped or malformed child
  6. To manage pregnancies in “lunatics” with the consent of a guardian
  7. To mitigate pregnancies that are a result of a failure in sterilization

Under the MTP Act, the right to abortion was made available at the discretion of medical practitioners. Pregnant women succeeded in getting permission to abort under certain conditions. Till 2017 there was a dichotomous classification of abortion as safe and unsafe. Unsafe abortion was defined by WHO as” a procedure for termination of a pregnancy done by an individual who does not have the necessary training or in an environment not conforming to minimal medical standards.” Now that abortion technology has become safer this has been replaced by a three-tier classification of safe, less safe, and least safe permitting varying situations and increasingly widespread substitution of dangerous, invasive methods.

The legal regulations have denied women’s right to liberty to a great extend particularly with respect to rights like abortion. A woman should be given all right to have control over her body and right to abortion irrespective of conditions prescribed presently. These regulations have actually created serious restrictions on women’s right to life and liberty. A mother should be given the right to have or not to have a child. The right to abortion should be granted unconditionally at least up to the first 12 weeks of pregnancy. Although the MTP Act has imposed strict registration for purpose of termination of pregnancy, private medical services have possibilities of not registering due to strict regulations and hence these regulations of the MTP Act should be removed. Even though prenatal diagnostic techniques are banned little progress has been made in realizing the goal. Only proper implementation of the Act can bring the desired change.

India’s New Progressive Law

Currently, 26 countries in the world permit abortions and 39 countries allow only if the mother’s life and health are at risk.

In late January 2020, the Union Cabinet amended the 1971 Medical Termination of Pregnancy (MTP) Act allowing women to seek abortions as per part of reproductive rights and gender justice. The amendment has raised the upper limit of MTP from 20 to 24 weeks for women including rape survivors, victims of incest, differently-abled women and minors. Failure of contraception is also acknowledged and MTP is now available to any woman or her partner replacing the old provision for only married woman or her husband. Though India is expected to stand amongst nations with progressive laws we still are in due process of empowering women especially women from poor socio-economic backgrounds. This initiative is highly appreciative in one way especially during the time when the landmark judgment of Roe v.Wade is under scrutiny.

The amendment clarifies the new rule of no limit for gestational age in case of fetal abnormalities. It also clarifies the role of practitioners in the case of rape and incest survivors.

A survey by The Lancet in 2019 found three of the 48.1 million pregnancies in India end in abortion with 15.6 million taking place in 2015 alone. What we need to understand is abortion laws rarely address investments and resources as data gathering is not standardized. 78 percent were conducted outside of health facilities. Most of these abortions were also by women obtaining medical abortion drugs from chemists and informal vendors. [3] According to the Office of the United Nations High Commissioner for Human Rights (OHCHR), unsafe abortions are estimated to account for 9 to 20 percent of all maternal deaths in the country. Hence proper implementation of the Act by providing better health care facilities to abort safely is important.

As we know it is not always possible to stick with natural law and meet societal values at every stage of growth. When there have been unconventional judgments on women’s rights to enter the temple in recent times, aborting rights that have a major impact on the mental and physical health of the women should be protected. Breaking old stereotypes on abortion law starts at answering when a fetus’s life becomes worthy of protection? If life that starts at fertilization is given more value, then are we ready to ignore the life that is existing?

Women have faced prejudices and restrictions starting from menstruation through pregnancies to menopause and this amendment in no way ends or aids in breaking this uncertainty or gender injustice.

There is no choice for women in the current law. The MTP Act in contradiction to the Shantilal Shah Committee has few protections for women and more provisions to protect doctors who conduct medical terminations. Indian lawmakers have cleverly made sure not to use the term “abortion” anywhere in the act and ensured to call it “Medical termination of Pregnancy”. MTP Act has been more vigilant in protecting doctors by providing them protection against IPC Sections of abortion which can attract criminal prosecutions.

By framing Section 3 of the MTP Act, the decision of whether to undergo a medical termination is not decided solely based on the doctor’s opinion which also points to a lack of autonomy for women. If the pregnancy has not completed 12 weeks one doctor needs to opinionate on whether medical termination is needed and if the pregnancy is between 12 and 20 weeks, two doctors need to share that opinion. Termination is allowed only if there is a substantial risk to the physical or mental well-being of the pregnant woman or if they have reason to believe that child to be born would be physically or mentally handicapped. Although this provision provides legality to abortion at the same time the decision making power is left with the doctor’s opinion instead of giving women the right to choose and access safe abortions. This provision does not provide the necessary right for women to have autonomy over their bodies.

In spite of landmark judgments delivered by the Supreme Court, no proper amendments are made in tune with it. In landmark cases such as Suchita Srivastava v. Chandigarh Admin and Devika Biswas v. Union of India, the Supreme Court has held a woman’s reproductive autonomy to be her fundamental right to privacy and has said that the decision to have or not have a child should be the individual’s decision devoid of any state interventions.

The current amendment only proposes to increase the upper limit in applying for abortions to 24 weeks, but none of the provisions of the Bill even talks about granting autonomy or agency to women over their own bodies in regard to deciding on abortions.

Conclusion

The right to Abortion which represents the larger aspect of human rights and the right to equality should be granted to every woman irrespective of the restrictions imposed in the current amendment. Women should be given autonomy over her body and a state should not decide whether they can abort or not? We need to decide on whether we are going to still be stuck with our age-old traditions and culture on this aspect and ignore the rights of women or provide empowerment to women across correcting different gender injustice imposed on her. The combination of the social shame around abortion and the government’s failure to spearhead an awareness campaign has made it difficult for women to get timely information and guidance. Since little to no serious attention was paid to educate the public about the MTP Act, many women in rural places still do not know that abortion is legal. Women lack vital information about how to abort if they need to. Although the Supreme Court has stressed providing the autonomy to women on deciding whether a pregnancy is needed or unwanted the current amendment has not the paved way to bring it to practice. The current amendment only protects doctors from complications related to abortions and does not facilitate in bringing the autonomy to women to decide for her.

We are at a stage where the State should focus on improving the status of women in rural society and educating women along with bringing in new regulatory measures on abortion. Only education can bring empowerment to women which in turn can improve their social status. Hoping that empowerment will one day end injustice and inequality expressed against women.

[1] Kristin Luker. Abortion and the Politics of Motherhood, Berkeley, University of California Press, 1984, 92.

[2] Laura S Hussey. Is Welfare Pro-life? Assistance Programs, Abortion, and the Moderating Role of States”, Social Service Review. 2011; 85(1):75-107.

[3]http://www.ipsnews.net/2020/04/india-liberal-abortion-law-nullified-social-stigma/

Questions

Q1. How abortion law shaped over time?

The initial discussion on the need for abortion law in India started in the 1960s with Shantital Shah Committee which evaluated whether an abortion law was needed at that time. At that time abortions were strictly illegal under Section 312 of the Indian Penal Code, 1860, and causing the miscarriage of a woman was a crime punishable with imprisonment up to three years or with fine. Later upon suggestions and recommendations MTP Act, 1971 was passed allowing for only medical termination of pregnancies. However, still causing miscarriages attracted imprisonment or fine.

Q2. Is abortion illegal or banned in any country?

Abortion is illegal in several countries but it is banned at different stages as well. In 2019 nine states proposed a ban on abortion at various points of pregnancies. These include Arkansas, Georgia, Louisiana, Kentucky, Mississippi, Missouri, Ohio, Utah, and Alabama which passed a total abortion ban.

Q3. What is the international law present on abortion?

There are no international or multinational treaties that deal with abortion directly but human rights law and international criminal law focusses on protecting this right of women.

Q4. What is the gestational age to calculate pregnancy?

Most of the countries calculate gestational age from the first day of the last menstrual cycle.

Q5. Are there countries with the most restrictive laws on abortions?

Most countries in Latin America have strict laws when it comes to abortion, almost half of the countries in Africa, Malta in Europe etc.

References:

  1. https://www.orfonline.org/expert-speak/india-new-abortion-law-progressive-human-face-62023/
  2. http://www.ipsnews.net/2020/04/india-liberal-abortion-law-nullified-social-stigma/
  3. https://indianexpress.com/article/explained/explained-1971-abortion-law-changes-india-6244999/
  4. https://www.tandfonline.com/doi/full/10.1016/S0968-8080(04)24017-4

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