Abortion Laws

The word “Abortion” comes from Latin abortion, which means to abort, miscarry, deliver prematurely. In medical “Abortion ” means ending a pregnancy prematurely. This is also called a “termination of pregnancy”.

The right to abortion certainly falls under the purview of Article 21 of the Indian Constitution as does the right to live with dignity and make free choices unless they are interfering with the current procedure of law. Article 21 ensures that every person is guaranteed with the right to life and personal liberty except according to the procedure established by law. In the case of abortion women equally enjoys the right to life and make free choices upon what she wants to do with her body. In a benchmark judgement, the Supreme Court of India said, “A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy”.

Abortion is legal in India since 1971, The Medical Termination of Pregnancy Act is responsible for the legalisation of abortion. The act highlights in what situations pregnancy can be terminated, the stipulated time such pregnancy will be terminated. further, the act also talks about in what place the termination takes place and who is authorised to conduct such termination.

According to the act, a pregnancy can be terminated under a few circumstances, such as in situations where the continuation of the pregnancy would involve risks to the life of the mother or to the child. or involve grave physical and mental injury to the woman. The act also spells out voidable pregnancies such as in case of lunatic woman. If the pregnancy caused by rape or also the failure of contraceptive in a married woman, the pregnancy can be terminated.

In landmark cases such as Suchita Srivastava v. Chandigarh Administration 2009, and Devika Biswas v. Union of India 2016, 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 hers alone, devoid of any state intervention. However, so far, there has not been any visible change in the MTP Act to give effect to these judgments.

An amendment has been proposed that would increase the upper limit in applying for abortions to 24 weeks. The amendment act of the bill 2020, extend the legal abortion limits to 24 weeks and give the right of abortion to every woman despite her marital status. The primary objective of the bill was just not to empower women but to reduce the number of unsafe abortions that are carried out. The amended act increased the termination limit from 20 weeks to 24 weeks. However, such a limit will not apply in case of substantial foetal abnormalities. The act also prescribes that the identity of a woman terminating pregnancy not to be revealed unless authorised by law. Anyone who contravenes this provision will be punishable with imprisonment of up to one year, or with a fine, or both.  

Medical opinion, as stated by the act, must be given in good faith. The term Good faith has not been described under the act, but in the IPC 1860, good faith means an act to be done in due care and caution.

The Indian amendment says there is no limit for gestational age in case of fetal abnormalities. This addresses maternal mortality and morbidity arising from unsafe abortions. Women will also be spared the stress and agony of seeking permissions from courts as time runs out on them. The amendment clarifies the role of practitioners who hesitate to intervene in cases of rape and incest survivors. It introduces the requirement of the opinion of two registered medical practitioners for termination of pregnancy of 20-24 weeks of gestation. It has also enhanced the gestation limit for special categories of women which includes survivors of rape, victims of incest and other vulnerable women like differently-abled women and minors. The law will help the rape victims, ill and under age-women to terminate the unwanted pregnancy lawfully.

Significantly, the Bill also applies to unmarried women and therefore, relaxes one of the regressive clauses of the 1971 Act, i.e., single women couldn’t cite contraceptive failure as a reason for seeking an abortion. Allowing unmarried women to medically terminate pregnancies and a provision to protect the privacy of the person seeking an abortion will bestow reproductive rights to the women.

The Supreme Court handed down a historic judgment in Roe v. Wade affirming the right that women have to privacy, as granted by the 14th Amendment, which extends to medical decisions including abortions. States have constructed a latticework of abortion law, codifying, regulating and limiting whether, when and under what circumstances a woman may obtain an abortion

In Rex v Bourne, a girl under 15 who was criminally assaulted in the most revolting circumstances, became pregnant. An eminent obstetrics surgeon and gynaecologist had terminated her pregnancy. She was booked u/s 58 of the Offences Against the Persons Act, 1861, for causing abortion against the law. The jury gave a verdict of acquittal since the Crown failed to comply with the obligation of proving that the operation was not procured for the proof preserving the life of the women.

In Sharif v State of Orissa 1997, the High Court of Orissa held that where termination of pregnancy of a minor girl was performed to save the life of the mother, section 312 was not attracted. In the present case, the accused accompanied the girl with her consent to the nursing home, who wanted termination of pregnancy to avoid social stigma. The accused did not instruct her to go for termination.

In Queen Empress v Aruna Bewa, where the term of pregnancy was almost complete and an attempted abortion resulted in the birth of a child, a conviction u/s 511 for an attempt to effect miscarriage was maintained.

The Indian Penal Code, 1860, taking into consideration the social, emotional and medical implications of abortion, declares induced abortion as illegal throughout India.

Sec 312 of the code spells out abortion as causing miscarriage; Voluntarily causing a miscarriage is criminalized under section 312, will stand for criminal abortion. In case there is danger pertaining to the life of a mother, the pregnancy can be discontinued. The unborn child in the womb must not be destroyed unless the destruction is for the sole purpose to preserve the life of the mother.

It is solely at the discretion of the doctor that a woman may or may not undergo an abortion. It is not right that every woman can exercise solely by her decision. Also, if the abortion is to take place within the first trimester (up to 12 weeks of conception), the woman only needs one doctor to sign off. However, if she exceeds the 12-week bar (from 12 to 20 weeks), she needs two doctors to sign-off. If you are an adult, you do not need your family’s or husband’s consent.

Often, especially in a country like ours, women are asked to have the consent of their husbands or families before they get to the operative table. However, the MTP Act gives adult women the autonomy to decide for themselves. A doctor cannot ask for anybody’s consent except for the mother’s. The Right to Privacy applies to abortion.

In India minor girls (below 18 years of age) require parental consent. Similar is the position in Italy, Greece and Poland. But in New Zealand, permission is required for a minor girl below 16 years of age. Particularly in the UK if minor girls are competent, any permission is not required. Girls of age 13 or above fall in this category.

Women have been given the right to the highest attainable standard of physical and mental health. The right to health signifies the elimination of all the barriers interfering with access to health services, educational and information including in the area of sexual and reproductive health. Therefore it can be inferred that women are entitled to safe abortion services. It also includes the right to control one’s health and body, including sexual and reproductive freedom, and the right to free from interference.

~Adv Ankita Wadhwa

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s