Abortion: A Woman's Right?

Updated: Feb 9

The "right to life, liberty, and the pursuit of happiness" begins with "life", and "life" begins at conception. ― A.E. Samaan

Despite being 49 years of the incorporation of the Medical Termination of Pregnancy Act, 1971 and the justification of women's right to abort, abortion remains a fiercely debated and taboo issue among people in India. How many of us ever listen or must have read out till now that was captioned "Abortion karaye", know that abortion is not illegal. It is legal in India since 1971. The Medical Termination of Pregnancy Act, 1971, is accountable for the legalization of abortion. However, legally, it can only be performed up to 20 weeks of conception. In 2020, Bill proposed in which it is said, pregnancy can be terminated up to 24weeks of gestation. Abortion is legal in certain conditions in India. It can be executed on various grounds until 20 weeks of pregnancy. In extraordinary cases, a court may allow a termination after 24 weeks.

Abortion is a terminating of pregnancy by expelling out the embryo. When a woman gets a pregnancy terminated voluntarily from a service provider, it is called induced abortion. Spontaneous abortion is the loss of a woman's pregnancy before the 20th week that can be both physically and emotionally painful. In communal language is called a miscarriage.

Though, technology becoming abortion safer, describing three-tier classification: of safe, less safe, and least safe abortion.

  • Safe abortion: provided by health-care workers and with methods recommended by WHO.

  • Less-safe abortion: done by trained providers using non-recommended methods or using a safe method (e.g., misoprostol) but without adequate information or support from a trained individual.

  • Least-safe abortion: done by a trained provider using dangerous, invasive methods.

Before the MTP Act, abortion was criminalized under Section 312 of the Indian Penal Code, 1860, describing it as intentionally "causing miscarriage, which was a punishable offence and criminalized women/providers, with whoever voluntarily caused a woman with child to miscarry facing three years in prison and/or a fine, and the woman availing of the service facing seven years in prison and/or a fine. Except for some cases where abortion was carried out to save the life of the woman.

In 1964 committee led by Shantilal Shah gave suggestions to draft the abortion law for India. The recommendation was accepted in 1970 and introduced in the Parliament as the Medical Termination of Pregnancy Bill. This bill was again passed in August 1971 as the Medical Termination of Pregnancy Act.

The Medical Termination of Pregnancy (MTP) Act, 1971 provides a legal framework for making CAC services available in India. Termination of pregnancy is permitted for a broad range of situations up to 20 weeks of gestation as mentioned:

  • When the continuation of the 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 a substantial risk that the child, if born or dead 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 the failure of contraceptives used by a married woman or her husband (presumed to constitute a grave injury to the mental health of the woman).

  • Section 3(2)(b) of MTP Act prohibits the abortion of a fetus after 20 weeks of pregnancy unless a direction to that effect is given by a high court after considering a report from an expert medical team of any state-run hospital.

The MTP Act Specifies-Who can terminate a pregnancy?

Pregnancy can be terminated only by a registered medical practitioner (RMP) who meets the following requirements:

  • has a recognized medical qualification under the Indian Medical Council Act

  • whose name is entered in the State Medical Register

  • who has such experience or training in gynaecology and obstetrics as per the MTP Rules.

All government hospitals are by evasion permitted to provide CAC services. As per the provisions of the MTP Act, only the consent of the woman is required whose pregnancy is being terminated. But, in case of a minor i.e., below the age of 18 years, or a mentally ill woman, consent of the guardian is required.

The Medical Termination of Pregnancy Act (MTP Act) was formulated in 1971 according to the technology available at that time taking into consideration the mother’s safety. The rigorous abortion laws in India have been a matter of dispute and have been challenged multiples times as the current law does not know a woman as an individual with autonomy over her own body. The MTP law makes any woman who seeks an abortion outside the guidelines prescribed under the Act can be prosecuted by the law. So, further amendments came into law, in 2002 the District level committee is empowered to approve a private place to offer MTP services to increase the number of providers offering CAC services in the legal ambit. In2014 on October 29, 2014, the Ministry of Health and Family Welfare released a draft of the MTP (Amendment) Bill. One of them is to increase the time for legal abortion to 24 weeks of gestation. Which help in decreasing maternal morbidity and mortality and preserving the woman’s health. The anticipated amendments are aimed for better sexual health and safe abortion for women in India.

In December 2017, a 13-year-old rape survivor's father come up to Bombay High Court seeking permission for the termination of a 26-week fetus. The girl was repeatedly raped by her cousin. Considering the report of the medical board which claimed that there was a greater risk to the pregnant girl's life if continued. The Court further held that the girl was physically incapable to deliver a child, and granted permission for termination of pregnancy.

In May 2017, the Patna High Court denied an abortion of a 26-week-old fetus of an HIV-positive rape victim as the court felt that it was the responsibility of the court to keep the child alive. After which, the victim appealed to the Supreme Court who heard her plea but denied her an abortion.

In the case of March 2011, Samar Ghosh v. Jaya Ghosh, the Supreme Court examined whether a woman's decision to terminate a pregnancy without her husband's knowledge or consent would amount to mental cruelty. The Court in this case ruled that "if the wife undergoes vasectomy or abortion without medical reason or the consent or knowledge of her husband, such as act may lead to mental cruelty".

In November 2011, in the Dr Mangla Dogra & Others v. Anil Kumar Malhotra & Others case dealing with the issue of whether a husband has a right to provide consent for abortion, the High Court of Punjab and Haryana stated that "the MTP Act requires consent from just one person: the woman undergoing a medical termination of pregnancy. A husband cannot force his wife to continue a pregnancy".

In September 2009, in the Krupa Prolifers v. State of Kerala case, the Kerala High Court, while addressing the issue of regulating emergency contraception under the MTP Act, ruled that "emergency contraception does not cause termination of pregnancy and cannot be regulated by the MTP Act".

In August 2009, the Supreme Court addressed the Suchitra Srivastava & Another v. Chandigarh Administration case on the issue of whether the state can consent to termination as a guardian for a "mentally ill" woman who was raped in her state-run facility. The Court ruled that the facts must be examined in such a case, and where the woman is "not a minor and has a "mild" mental illness, the Court has to ensure her reproductive rights, including the right to continue a pregnancy".

In July 2008, a woman approached the Bombay High Court seeking permission to abort her 26-week-old fetus that was diagnosed with a congenital heart defect. The High Court turned down the plea, arguing that "if born, the fetus would not suffer from any serious handicap.

Though the court may have given more affirmations in abortion cases but till when will people continue to appeal to the court if judgements are passed on ethical and moral values. Denying the right to abortion and forcing to continue the pregnancy knowing the fetus’s abnormality not only kills the joy of motherhood but also disrupts the quality of life. Now, Who is to be blamed for the family’s mental and financial burden caused by the outdated Act? The quality of life of such newborns and mental trauma to the parents must be considered before turning down a case completely citing the law as the reason,”

The revaluation of the MTP Act is necessary and overdue.

Currently, we are in the second decade of the 21st century, then why should a woman be forced to suffer the irregularities of the 19th-century? So, The Medical Termination of Pregnancy (Amendment) Bill, 2020, proposed in the parliament for termination of pregnancy up to 24 weeks of gestation period which seeks to amend the MTP Act, 1971. Further Lok Sabha passed the bill in January 2020to extend the upper limit for permitting abortions from 20 weeks to 24 under special circumstances, 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 “only for married woman or her husband.”

Right to personal liberty is the most precious, unchallengeable and fundamental of all the fundamental rights of the citizen. Article 21 of the Indian Constitution protected one of the most precious fights in the form of life and personal liberty guaranteed under chapter three of Indian Constitution. Supreme Court in India, known as the guardian of fundamental rights, has given a wide interpretation to term life.

Yes, the right to privacy applies to abortion.

Right to abortion is a kind of right to privacy, which is again stated an extension of the right to life under Article 21. It can also say to be including the complete right of a woman over her reproductive organs. In the United States of America, the Supreme Court ruled the right to privacy included abortions in the landmark case of Roe v. Wade. Freedom from interfering in one's privacy and family life is protected via Article 12 of the Universal Declaration of Human Rights, Article 17 of the Civil and Political Rights Covenant, Article 11 of the American Convention, and Article 8(1) of the European Convention. The European Commission of Human Rights has promulgated in its judgments, that in cases of Bruggeman and Scheuten v. the Federal Republic of Germany and Paton v. the United Kingdom decisions one makes about one's body, particularly one's reproductive capacity, lie directly in the domain of private decision-making. Subsequently right to life includes right to enjoy life with all the limbs and faculties, it implies, therefore, that right to procreation and right to have control over reproductive organs are included in the broader concept of the right to life. Thus, the right to reproduction and to have control over one's reproductive organs gives birth to another right i.e., the right to abortion. The right to your body lies with you and no one else. Any forced act upon a body without your consent is a violation of basic human rights. In India, where the right to reproduction is handled by the spouses and the in-laws rather than the woman. If you are wedded, the decision of having a baby is solely yours, since you are the one who will undergo labour. No one can force or choose that for you. In India, the fetus is considered as the property of the husband. So, nevertheless of whether a woman wants to have a child or not, her husband's decision is taken into consideration. But the law states otherwise that a woman does not need her husband's or partner's permission to get an abortion. In the case of a woman under the age of 18 or a mentally unstable girl, a guardian's written consent is required. A woman above the age of 18 however, (married or unmarried), has the right to an MTP. The husband's consent is not required to terminate the pregnancy. However, not only the judiciary but the section 312 of Indian Penal code 1860 also state "Whoever voluntarily causes a woman to miscarry, shall if such miscarriage is not caused in good faith to save the life of the women be punished.”.

"A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy".

In a landmark judgement, the Supreme Court of India in Suchita Srivastava v. Chandigarh Admin and Devika Biswas v. Union of India, 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.

The new MTP law is forward-looking, sympathetic and looks at a very sensitive issue with a human face. “India will now stand amongst nations with a highly progressive law which allows legal abortions on a broad range of therapeutic, humanitarian and social grounds. It is a milestone which will further empower women, especially those who are vulnerable and victims of rape. The Indian amendment declares that 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 from the stress and pain 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. Abortion is a reproductive right for every woman. Abortion-related stigma and the lack of awareness on the legality of abortion are key factors that need to be addressed to improve access to safe abortion services. The right to your body lies with you and no one else.

Hereafter, the right to reproductive autonomy was held as a Fundamental Right.


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