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LEGALISATION OF ABORTION: HOW IS ABORTION TREATED BY LAW?

Author: Aarushi Chawla

Vivekananda Institute of Professional Studies , Delhi



ABSTRACT

Human rights are those rights that should be available to every individual without any discrimination of any sort and the most important of them all is the ‘right to life’. Then there is the issue of the right to abortion. The right to abortion is a conflicting right between right to life of the prospective child and the right to abort. The abortion laws have a 50-year old long history in India. Simply, abortion refers to a procedure at any point during human pregnancy. It is indeed legal in India but backed by a lot of criticism and complications.

The essay aims at the discussion of the legality of the current abortions laws along with their historical touch. It also analyses various judgments which are an outcome of these stringent laws. Despite these archaic laws, the judiciary has also tried to provide with a liberal approach to woman’s reproductive right.


INTRODUCTION

The debate of abortion laws started from the landmark case of US Supreme Court in Roe v Wade. This case overturned almost all state laws restricting abortion and established that laws against abortion are an infringement of privacy of an individual. Deliberating upon the concept, it familiarises us about the penal provisions enriched in the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1971 that imposes criminal liability upon women as well as the abortionist. The context for the same can be found in Section 312 of the Indian penal Code, 1860 that talks of punishment imposed on the person “causing miscarriage to the woman.” With the object of protecting doctors and liberalizing abortions in India, the Medical Termination of Pregnancy Act, 1971 was passed in the Parliament. Further, several amendments took place in the year 2002 and 2003. Currently, the Medical Termination Amendment Bill, 2020 is pending in the parliament to form a revised Act and if accepted may turn out to be a milestone for the women’s rights.


BACKGROUND

As discussed above, the abortion law in India has a long history starting from the British era when the Indian Penal Code, 1860 was enacted. The risk to the life of a woman due to unsafe pregnancy and unintended pregnancies continued to be an issue. With this aspect, nearly in 1957, the Mudailar committee reported on the problems related to illegal abortion in India. Further on, in 1964 the Shantilal Shah Committee was constituted to study the problem. After analysis of a vast expanse of statistical data available at that time, the committee issued its report on December 30, 1966. Based on the report, the Medical Termination of Pregnancy Act (MTP), 1971 was passed and the abortion laws in India stood liberalized. Looking at the terminology used in the act that is “medical termination of pregnancy” instead of “abortion” states an obvious reason for its ease to be passed in the parliament as abortion is linked to the social myths in a country like India.


LAWS RELATED TO ABORTION AND THE RIGHTS OF WOMEN

Before briefly discussing the laws related to abortion it is important to note that Article 21 of the Constitution of India guarantees woman, a reproductive right that comes under her liberty (Re Justice K S Puttaswamy v Union of India, (2017) 10 SCC 1). The question of women’s right to terminate or not to terminate pregnancy came into question in Suchitra Srivastava v. Chandigarh Administration (2009) 9 SCC 1, where the Court held that reproductive choice of women is subject to Section 3 of the MTP Act,1971.

The Act (MTP Act, 1971 is referred to as ‘the act’) is an act to liberalize abortion but does not necessarily encompass a fundamental right to induced abortion. Its Preamble states that it is an act to terminate “certain pregnancies” by “registered medical practitioner.

The act starts with the clause “Notwithstanding anything contained in the Indian Penal Code” suggests that the aim of the act is more at the protection of doctors rather than legalizing abortions.

The grounds available for abortion (Section 3 of the act):

If pregnancy leads to “grave injury” to the physical or mental health of the woman

Where there exists a substantial risk or abnormalities if the child is born

It is to be noted, under the act that “rape (not including marital rape)” is construed as a grave injury and is a ground to abort.

Further, termination of pregnancy is permissible up to 12 weeks (requiring certification of a registered medical practitioner) and from 12 to 20 weeks (opinion of two registered medical practitioners). Subject to the above the mentioned limits, the woman is required to approach the

High Court or Supreme Court.

Also, the failure of a contraceptive measure used by a “married couple” is a ground to abort.

Section 3(4) of the Act also provides that pregnancy cannot be terminated except by the consent of a pregnant woman. The only exception to this rule is in case of a minor and mentally ill where the guardian consents’ to such a decision.


PROBLEMS WITH THE ACT

With the abortion being legalized a long back in India, still 10 women die every year due to unsafe abortions, making this issue as the third largest cause of maternal deaths in the country.

The act mentions that in the second trimester the termination of pregnancy requires the opinion of two registered medical practitioners but what about the rural areas where even finding one seems rare.

Though the act is a step towards gender equality, what about the inalienable right of women to control and protect their body and take decisions independently.

Such government intervention provokes women to proceed towards illegal abortions which are in every way harmful for the health of the prospective child as well as the mother.

Moreover, discrimination and lack of protection provided to the unmarried woman with respect to the failure of the use of contraceptive measures.