In Context
The 2021 amendment to the Medical Termination of Pregnancy Act fails to address some issues .
Origin of abortion law in India
- 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.
- 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.
- Under 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.
- This section effectively makes unconditional abortion illegal in India.
- 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 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.
- Under 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.
- 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.
MTP evolution from 1971 to 2021
- The latest amendment to the MTP Act was made in 2021.
- Before that new rules were introduced in 2003 to allow the use of then newly discovered abortion medicine misoprostol, to medically terminate a pregnancy up to seven weeks into it.
- Under the Medical Termination of Pregnancy (Amendment) Act, 2021, abortion is permitted after medical opinion under stipulated circumstances.
- The 2021 Act increased the upper limit of the gestation period to which a woman can seek a medical abortion to 24 weeks from 20 weeks permitted in the 1971 Act.
- This renewed upper limit can only be exercised in specific cases.
- The 2021 Act increased the upper limit of the gestation period to which a woman can seek a medical abortion to 24 weeks from 20 weeks permitted in the 1971 Act.
- MTP could now be accessed on the opinion of a single registered medical practitioner up to 20 weeks of the gestational age.
- From 20 weeks up to 24 weeks, the opinion of two registered medical practitioners is required.
- In the previous version of the Act, the opinion of one registered doctor was required to access a medical abortion up to 12 weeks of pregnancy, while two doctors were required to endorse the abortion up to 20 weeks.
- Besides, if the pregnancy has to be terminated beyond the 24-week gestational age, it can only be done on the grounds of foetal abnormalities if a four-member Medical Board, as set up in each State under the Act, gives permission to do so
- The law, notwithstanding any of the above conditions, also provides that where it is immediately necessary to save the life of the pregnant woman, abortion can be carried out at any time by a single registered medical practitioner.
- Under the 2021 Act, Unmarried women can also access abortion under the above-mentioned conditions, because it does not mention the requirement of spousal consent. If the woman is a minor, however, the consent of a guardian is required.
Judicial interventions in cases of abortions
- 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.
- In February 2022, 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.
- The Court permitted this after the State Medical Board rejected the woman’s application to get MTP.
- This judgment allowed abortion for the furthest gestational age in the country so far.
Criticisms against the abortion law
- According to a 2018 study in the Lancet, 15.6 million abortions were accessed every year in India as of 2015.
- According to the latest National Family Health Survey 2019-2021, 27 percent of the abortions were carried out by the woman herself at home.
- According to United Nations’ Population Fund’s (UNFPA) State of the World Population Report 2022, around 8 women die each day in India due to unsafe abortions.
- The MTP Act requires abortion to be performed only by doctors with specialisation in gynaecology or obstetrics.
- However, the Ministry of Health and Family Welfare’s 2019-20 report on Rural Health Statistics indicates that there is a 70% shortage of obstetrician-gynaecologists in rural India.
- As the law does not permit abortion at will, critics say that it pushes women to access illicit abortions under unsafe conditions.
- Statistics put the annual number of unsafe and illegal abortions performed in India at 8,00,000, many of them resulting in maternal mortality.
- The act uses the word “woman”, thereby leaving out pregnant transgender and non-binary persons who are biologically capable of bearing children.
- It forces them to identify themselves in the gender-binary ignoring their gender identity.
- Other significant issues affordability, and social stigma leading to unsafe abortions.
- Abortion facilities in private medical centres are expensive, available only for those who have the resources.
Conclusion
- The situation in India is far from perfect and we should take this moment to reflect and learn from progressive practices around the world.
- We should strive for inclusivity, complete bodily autonomy, and reproductive equity.
- Measuring ourselves on a yardstick of regression shouldn’t become our way of governance.
- Bodily autonomy and reproductive rights must be viewed from three lenses — legal, medical, and social.
- Only when women and non-binary pregnant people enjoy absolute autonomy over their own bodies by these parameters, can one claim that India is showing the way to the West.
Practice Mains Question
[Q] Is India really ahead of the West in terms of reproductive rights? Discuss
