Abortion Rights: Why Can’t the Women decide?

abortion rights in india

Abortion may be referred to as to the termination of pregnancy i.e killing of the foetus through medical or surgical techniques. A pregnancy may need to be terminated by the mother for various reasons such as unwillingness to give birth, a result of sexual violence such as rape, or mental and other health conditions including the risk of abnormalities to the newborn.

This article discusses in brief how India needs a more comprehensive regulation regarding abortions in India and analyses the current legislation.

Why do we need laws regulating abortion?

Abortion i.e termination of pregnancy involves killing a foetus. Unregulated termination of foetus can have severe mental and health percussion on the population. Also, a 2015 study in the India Journal of Medical Ethics noted that 10-13% of maternal deaths are because of unsafe abortions. This makes unsafe abortions to be the third-highest cause of maternal deaths in India.

The discussion on the need for abortion law in India started back in the 1960s. The government set up a committee under the chairmanship of  Dr. Shantilal Shah named the Shantilal Shah Committee to analyse and review the socio-cultural, legal, and medical aspects of abortion. And whether an abortion law was needed for India. At the time, abortions were strictly illegal under Section 312 of the Indian Penal Code, 1860, and punishable with imprisonment and/or a fine.

What are the relevant laws regarding abortion in India?

In 1971, the parliament passed a new law to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. The Act was named THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971 (ACT NO. 34 OF 1971)

The Act states that an abortion may be terminated by registered medical practitioner(s).

Under section 3(2) terminated in the opinion of a single medical practitioner if the length of pregnancy does not exceed 12 weeks and by two medical practitioners if the length of pregnancy exceeds 12 weeks but does not exceed 20 weeks.

The opinion should be in good faith that continuation of the pregnancy may risk the life of the mother, or cause grave injury to her health, or (ii) there is a substantial risk that the child if born, would suffer physical or mental abnormalities. 

The Act also states that the registered medical practitioners would be protected under the law if they abide by the guidelines under this act.

In a recent bill of the amendment was introduced in the upper house of the parliament by Dr. Harsh Vardhan on March 2, 2020. The Amendment extends the upper limit of gestation period from 20 weeks to 24 weeks but only for some specific category of patients as may be prescribed the rules. The bill also seeks to achieve the privacy of the people and establish Medical boards for better regulating the matter under the provisions of this act.

The problem with MTP Act, 1971

This Act that regulates the termination of pregnancy in India wholly takes away the autonomy of the women and puts it on the table of the ‘Registered Medical Practitioners’. In other words, under the said Act if the practitioners are not of the ‘opinion in good faith‘ that the termination is necessary then the mother has no right to terminate beyond the period of 12 weeks.

For example in Savita Sachin Patil vs. Union of India the Court rejected termination of a 27-week pregnancy. The Medical Board submitted a report that there was no physical risk to the mother but the foetus had severe physical anomalies. The Court then did not permit termination on the ground, based on the Medical Board Report.

The supreme court has stated that “a woman’s right to make reproductive choices is also a dimension of her ‘personal liberty’ under Article 21 of the Constitution” and that the right to bodily integrity allows her to terminate her pregnancy in MrsX vs. Union of India but the government has failed to recognise the bodily integrity beyond the 12 week gestation period.

As CLPR Blog rightly states, “We need to think of post-20-week abortions in a manner that places women’s choices at the centre and the substantive law and procedure needs to be framed that respects women’s reproductive choices.”

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