Abortion Laws in India
By Shweta Nair
Abortion is one such subject which has been discussed for several years worldwide. It has a moral side to it as well the side of women’s rights. Talking about the moral side, people since ancient times in India believe that a child is a gift of God and also a living being and therefore aborting a child when it is inside the womb of a mother amounts to murder of a living being which is a crime or an offence. And the other side talks about the rights of women and are confused between the right of a woman to abortion and the right of an unborn child to life who is still in the womb of a woman.
Article 21 of the Indian Constitution provides right to life to everyone irrespective of gender, caste, sex, religion. Women in India also have the right to abortion which is guaranteed under the right to privacy originating from right to life and personal liberty. Certainly, a woman’s right to abortion is to be considered superior because a foetus does not have any interest of its own as its still not alive but a woman’s right needs to be protected come what may. It is the woman’s body and a foetus in the womb is a part of woman’s body and therefore she has a right to choose whether to go for abortion or not.
Abortion means intentional termination of pregnancy. It is now legal in India. But it wasn’t so some years back. Prior to 1971, abortion was a crime under section 312 of the Indian Penal Code which provides punishment of imprisonment for 3 years or fine or with both to those persons who voluntarily cause miscarriage to a woman with child. Imprisonment increases to 7 years in the case where the woman is quick with child. The only exception is for saving the life of a woman, when a miscarriage is done in good faith.
When abortion started becoming legal in many countries, and a legal framework for induced abortion was initiated in India, there were large number of abortions taking place due to which government asked the committee led by Shanti Lal Shah to draft abortion law. It was only then that the recommendations were taken into consideration and finally an act called as Medical Termination of Pregnancy Act in 1970 came into force.
Under The Medical Termination of Pregnancy Act,1970 (MTP Act), a woman can get an abortion done up to and including 12 weeks but in such a case, the approval of one registered medical practitioner is needed. And if it is after 12 weeks and up to and including 20 weeks, approval of two registered medical practitioners becomes necessary for a valid abortion. Of course, while handling such cases, the doctors need to look into the the conditions for which abortion is allowed while consenting with the procedure of abortion. After 20 weeks, abortion will be allowed if it needs to be done to save the life of a woman. (Here also, the right is still with the doctors and not with the woman though)
What are the conditions permitted for abortion under MTP Act?
If the reason for pregnancy is rape.
If there will be physical or mental abnormalities to the child on birth.
If such pregnancy is harmful to the woman’s physical or mental health or even to her life.
If it has been caused due to failure of contraceptive used by a married woman or by her husband.
Therefore, this act and IPC seems to be against right to life and personal liberty, right to privacy, right to health under Article 21 as only the medical practitioners have the right to decide and not the women. If a case of abortion comes and it doesn’t comply with any of the conditions above, it will be straightaway rejected and ultimately, women have no other option but to seek unsafe abortion methods or attempt suicide. Both of them causing a big risk to the life of woman.
The MTP Act was later amended and a new Medical Termination of Pregnancy Act of 2021 has come into force. Several important amendments include- Gestation period being increased to 24 weeks for women who suffered rape, or incest or even differently abled women, approval of one doctor needed for termination of pregnancy up to 20 weeks and later from 20 to 24 weeks, two doctor’s approval required, upper gestational limit won’t apply to foetal abnormalities, inclusion of unmarried woman under failure of contraceptive clause to remove the earlier limit of status to married woman only. Nevertheless, the doctor’s or the medical practitioner’s opinion is compulsory and women have not got the right to abortion in its true sense.
Abortion still remains stigmatised in India with huge number of doctors not consenting to it on moral grounds. Abortion Laws need to be more liberalised in India as it is a very critical thing. Many women suffer because of unsafe abortions, due to which maternal mortality has increased. In 2015, about 15.6 million abortions were done in India out of which 78% were done outside health facilities. More than 10 women die daily due to unsafe abortion as reported by the Ministry of Health and Family Welfare and therefore, it’s of a serious concern. Abortion must be legally permitted to secure basic fundamental rights to woman for which state needs to take appropriate steps.