Wednesday, 10 March 2021

Abortion Laws in India

 Abortion is intentional termination of a human pregnancy, majorly performed during the first 20 weeks of pregnancy. India is a country with extreme social baggage augmented by the evils of the society like poverty and illiteracy. Abortion has been legal in India under definite provisions since the adoption of the Medical Termination of Pregnancy (MTP) Act in 1971. With this, India became one of the first few nations to legalize abortion.

The main aim of legalizing abortion through the Act is to provide every woman with eminent health care while terminating a pregnancy, to promote accessibility and affordability of safe termination services.

Here is everything you need to know about the abortion laws of India

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When can an abortion be performed?

Under Section- 3 of the Act

As a health measure by the permission and approval of the Doctor concerned

When there is a danger to the life or risk to the physical or mental health of the woman.

When there is a risk to the life of the woman is greater during pregnancy than if it got terminated.

When the termination is important to avoid serious permanent injury to the mental or physical health of the woman.

When the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, or injury to the physical or mental health of any existing child of the family of the pregnant woman.

When there is considerable risk that the child might be born with physical or mental abnormalities resulting in serious deformity.

When it's necessary to save the life of the woman or to avoid permanent injury to her health.


On humanitarian grounds

When pregnancy arises from a sex crime like rape or intercourse with a lunatic woman, etc.


On eugenic grounds

Where there is a substantial risk that the child if born, would suffer from deformities and diseases.

Consult: Top Criminal Lawyers in India


Supreme Court’s take on allowing abortion

The Apex Court in 2017 allowed a teen rape survivor to terminate her 24-week pregnancy, in fact, the Court regretted the loss of valuable time that would have been safer for the survivor while undergoing the termination if it was done earlier.

The Apex Court in 2016 permitted a woman to terminate a 24-week-old fetus, going against the acceptable 20-week time-frame. The Court said that continuing with a fetus having multiple severe abnormalities would be life-threatening for both the fetus and the mother and therefore, to avoid complications to the mother, abortion was allowed.

However, the above-mentioned judgments do not necessarily mean that termination of pregnancy is permitted in every situation, in fact, it all depends on the facts of the case.


When can’t an abortion be performed?

Under Section- 3 of the Act

A minor cannot get the pregnancy terminated without the written consent of her legal guardian.

There can be no abortion without the consent of the woman.


Supreme Court’s take on not allowing abortion

In 2017, a pregnant woman had approached the Supreme Court to abort her 26-weeks old foetus on the ground that the baby suffered from 'down syndrome'. However, the request was denied by the Court declaring that we have a life in our hands and thus, killing the fetus is not the option.


Where can an abortion be performed?

Under Section- 4 of the Act it has been specifically mentioned that termination of pregnancy shall not be carried out at any place other than-

a hospital established or maintained by the Government or a place approved by the Government or a District Level Committee constituted by the Government with the Chief Medical Officer or District Health Officer.

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Is the consent of the husband required for abortion?

In a recent judgment of the Supreme Court where the husband was trying to seek relief from Court after his wife aborted their child without his consent. Accordingly, the Court stated that mere consent to matrimonial sex by the wife does not imply that she has given consent to conceive a child as well. Therefore, it is the complete free will of the woman to conceive or terminate the pregnancy. The man can’t force her to give birth to his child. Moreover, the Court further added by saying that a woman is not a machine in which raw material is placed and finished products come out. The woman needs to be mentally prepared so as to conceive and give birth to a child and become a mother. Unwanted/ unplanned pregnancy will only affect the physical and mental health of the pregnant woman.

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