In a significant step backwards for women’s rights in the U.S., the Supreme Court overturned the landmark Roe v. Wade judgement of 1973, which gave women in America the right to have an abortion before the foetus is viable outside the womb or before the 24-28 week mark. With the setting aside of the historic judgement on abortion in the U.S, here’s a look at the laws that govern abortion in India.
GS II- Government policies and Interventions
Dimensions of the Article:
- How did abortion laws come about in India?
- The Medical Termination of Pregnancy Act, 1971
- Medical Termination of Pregnancy Amendment Act, 2021
- Significance of the amendment
- Criticisms of the 2021 amendment to the MTP act
- Have there been judicial interventions in cases of abortions?
How did abortion laws come about in India?
Shantilal Shah Committee:
In the 1960s, in the wake of a high number of induced abortions taking place, the Union government ordered the constitution of the Shantilal Shah Committee to deliberate on the legalisation of abortion in the country.
Indian Penal Code (IPC) provisions of 312 and 313:
- In order to reduce maternal mortality owing to unsafe abortions, the Medical Termination of Pregnancy (MTP) Act was brought into force in 1971.
- This law is an exception to the Indian Penal Code (IPC) provisions of 312 and 313 and sets out the rules of how and when a medical abortion can be carried out.
- Section 312 of the IPC, a person who “voluntarily causes a woman with child to miscarry” is liable for punishment, attracting a jail term of up to three years or fine or both, unless it was done in good faith where the purpose was to save the life of the pregnant woman.
- Section 313 of the IPC states that a person who causes the miscarriage without the consent of the pregnant woman, whether or not she is the in the advanced stages of her pregnancy, shall be punished with life imprisonment or a jail term that could extend to 10 years, as well as a fine.
The Medical Termination of Pregnancy Act, 1971
The Medical Termination of Pregnancy (MTP) Act, 1971 provides the legal framework for making CAC services available in India.
Termination of pregnancy is permitted for a broad range of conditions up to 20 weeks of gestation as detailed below:
- When continuation of pregnancy is a risk to the life of a pregnant woman or could cause grave injury to her physical or mental health;
- When there is substantial risk that the child, if born, would be seriously handicapped due to physical or mental abnormalities;
- When pregnancy is caused due to rape (presumed to cause grave injury to the mental health of the woman);
- When pregnancy is caused due to failure of contraceptives used by a married woman or her husband (presumed to constitute grave injury to mental health of the woman).
The MTP Act specifies
- who can terminate a pregnancy;
- till when a pregnancy can be terminated; and
- where can a pregnancy be terminated.
Medical Termination of Pregnancy Amendment Act, 2021
- The Act increases the gestation period of women seeking abortion up from 20 weeks to 24 weeks – It allows abortion to be done on the advice of one doctor up to 20 weeks, and two doctors in the case of certain special categories of women between 20 and 24 weeks.
- The “special categories of women” include rape survivors, victims of incest, the differently-abled and minors.
- In case of the gestational period beyond 24 weeks, pregnancy may be terminated only in cases of substantial foetal abnormalities diagnosed by the Medical Board or if there is a threat to the life of the mother.
- Opinion of only one provider will be required up to 20 weeks of gestation and two providers for termination of pregnancy of 20-24 weeks of gestation. (Opinion of only one doctor will be required up to 20 weeks of gestation and two doctors for termination of pregnancy of 20-24 weeks of gestation.)
- Under the Act, a pregnancy may be terminated up to 20 weeks by a married woman in the case of failure of contraceptive method or device. It allows unmarried women to also terminate a pregnancy for this reason.
- All state and union territory governments will constitute a Medical Board. The Board will decide if pregnancy may be terminated after 24 weeks due to substantial foetal abnormalities.
Significance of the amendment
- It will provide greater reproductive rights and dignity to women as abortion is considered an important aspect of the reproductive health of women.
- Deaths and injuries from unsafe abortions are largely preventable provided services are performed legally by trained practitioners.
- The rape victims and vulnerable victims will also be benefitted from Privacy Clause.
- Many cases which were filed in High Courts to seek permission for abortion beyond 20 weeks will be reduced. Also, often 20 weeks were spent in completing the legal procedures and formalities – hence, there was a need to increase the upper limit of time.
Criticisms of the 2021 amendment to the MTP act
- One opinion is that terminating a pregnancy is the choice of the pregnant woman and a part of her reproductive rights. Another is that the state should protect life and hence should provide for the protection of the foetus.
- It enhances the gestational limit for legal abortion from 20 to 24 weeks only for specific categories of women. A woman who does not fall into these categories would not be able to seek an abortion beyond 20 weeks.
- The Act does not provide a time frame within which the Board must make its decision. Also, the shortage of specialised doctors will further delay the case.
- There may be cases where persons who identify as transgender (and not women) can become pregnant even after receiving hormone therapy to transition from female to male, and may require termination services. The Act is silent over this.
- The boards are unnecessary and an invasion of privacy of the pregnant women which pushes the laborious process a woman had to undergo in order to get an abortion.
- Many are still not aware of their reproductive rights and the amendment does not show concerns towards the need for awareness.
Have there been judicial interventions in cases of abortions?
- Justice K.S. Puttaswamy v. Union of India:
- Despite the fact that existing laws do not permit unconditional abortion in the country, in the landmark 2017 Right to Privacy judgement in the Justice K.S. Puttaswamy v. Union of India and others, the Supreme Court had held that the decision by a pregnant person on whether to continue a pregnancy or not is part of such a person’s right to privacy as well and, therefore, the right to life and personal liberty under Article 21 of the Constitution.
- Foetal abnormality:
- Several women annually approach the apex court and High Courts, when medical boards reject their application to access MTP beyond the gestational upper limit (now 24 weeks), seeking permission to abort a pregnancy, mostly in cases where it is a result of sexual assault or when there is a foetal abnormality.
- Recently, the Calcutta High Court allowed a 37-year-old woman, who was 34 weeks into her pregnancy, to get a medical abortion as the foetus was diagnosed with an incurable spinal condition. This judgment allowed abortion for the furthest gestational in the country so far.
-Source: The Hindu