In India, The Medical termination of pregnancy Act was passed almost five decades ago. But, Abortion is still considered a taboo and debatable topic for many. According to National study of the incidence of abortion and unattended pregnancies, Almost 15.6 million abortion was performed in 2015.
Currently, one out of four abortions are terminated in health facilities (Public sector) which is the main source of health care for paupers & almost 3 out of 4 abortions are careered by using MMA drugs from chemists and local vendors. After fifty years of legal legislation, most the women in India are still deprived of safe abortion care due to multiple reasons like lack of proper information, the difference in socio-cultural beliefs in different rural-urban areas. This article critically reviews the history of abortion law and highlights policies for Medical Termination of Pregnancy Act.
Life began from the womb of the mother and abortion is the destruction of life. Many people also raise questions on social, moral and legal aspects of abortion and according to them, women have a moral duty to give birth to a child and protect the fetus also. From this view, the obvious question arises whether the women have the right to abortion or not?
Abortion as a human right
Human rights are those rights which are available to all the human beings irrespective of caste, colour, creed, religion and nationality etc. Right to life is the most important human right. Article 6(1) of the International Covenant on Political and Civil rights prohibits the arbitrary deprivation of human rights.
Many controversies are related to this right and right to abortion is one of them. Every mother has a right to abortion but this right has to balance with the right of the unborn child. Earlier, abortion was opposed by society and considered as a murder of the embryo. In recent years, formal policies and laws are indicating the intent of government for promoting the reproductive rights and every woman has a complete right over her body
However, the validity of abortion laws has been questioned on the basis of the constitutionality of Right to life of an unborn child. This issue becomes a debatable topic in many countries especially The United States and Northern Ireland.
In the Leading Case: Roe v. Wade: Jane Roe challenged the constitutionality of Texas Criminal Abortion laws in the Supreme Court of The United States. The petitioner pleaded that these laws were vague, unconstitutional and encroaching her right to privacy. On the other hand, The The state of Texas argued that fetus is a Person within the meaning of the Due process clause of the fourteenth Amendment of the United States Constitution.
The Court held that the State cannot restrict the women’s right to abortion during the first trimester which try to balance the State’s interest with the individual’s interest. The State can regulate the procedure during the second trimester in a reasonable way related to maternal health and in third trimester, the State can restrict abortion in a way as it thinks fit.
Indian perspective on abortion
Abortion is strictly prohibited by the Smirtis, Vedas and Upanishads. But, it was still practised clandestinely because it was illegal. But, in 1971, after passing of the Medical termination of pregnancy Act, medical termination of pregnancy by registered medical practitioners becomes legal. The object of the Act was to eliminate the high incidence of illegal abortions and confer Right to Privacy to women which includes right to space and to limit pregnancy and the right to decide about her own body.
In the leading case of Suchita Srivastava v. Chandigarh Administration, The Supreme Court affirmed the women’s right to choose in respect of continuing pregnancy. The Supreme Court held that the state has an obligation to protect the reproductive rights of women as a part of Article 21 of the Indian constitution.
Section 3 of the MTP Act, 1971 Act lays down condition under which pregnancy can be terminated.
It can be terminated:
- Where the length of the pregnancy doesn’t exceed 12 weeks and medical practitioner is of opinion that,
- And if the length of pregnancy exceeds 12 weeks but doesn’t exceed 20 weeks and at least two registered medical practitioner has opinion that:
- Continuance of pregnancy involves a risk to life or grave injury to physical or mental the health of the women.
- There is a substantial risk involved that child would suffer from physical or mental abnormalities as to be seriously handicapped.
- If pregnancy is caused by rape.
- Failure of any device or method which is used by the married couple to limit the number of children.
Latest amendment in MTP act, 2020
- On 2nd March 2020, The MTP (Amendment) Bill was introduced by the Minister of Health and Family Welfare. The bill adds the definition of the termination of pregnancy to mean procedure to terminate by surgical methods.
- The bill amends the section 3 of the Act also. The termination of pregnancies up to 24 weeks only apply to the categories of women which may be prescribed by the central government. The central government also notify norms for the medical practitioners whose opinion are required for termination of pregnancies.
- Earlier, if the pregnancy occur as a result of the failure of any method or device used by married women or her husband to limit the number of children, it amounts to grave injury to the mental health of women. The Bill replace the married woman or her husband with women or her partner.
- The Bill also lays down the establishment of the Medical board for every state. The board will consist of the following members: 1. a gynaecologist, 2. a paediatrician, 3. a radiologist or sinologist and 4. Any other member who may be notified by the state government.
- The bill also promotes the Right to Privacy and states that no medical practitioner will reveal the name and other details of women whose pregnancy has been terminated, except to the person authorized by the law. Whoever violates this the rule shall be punishable with imprisonment which may extend to one year or fine or both.
- The Central Government will also notify the norms for a medical practitioner whose opinion is required for abortion.
Punishment for illegal abortion
Section 312 to 316 of the IPC deals with the penal abortion. It is covered under the offences against the human body.
- According to Section 312, Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. A woman who causes herself to miscarry, is within the meaning of this section.
- According to Section 313, Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
- According to Section 314, Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; If an act is done without woman’s consent.—And if the act is done without the consent of the woman shall be punished either with 1[imprisonment for life], or with the punishment above mentioned.
View of supreme court on termination of pregnancy
- Case: Mrs X v. Union of India: The Court held that women’s right to reproductive choice is also a dimension of her personal liberty under Article 21 of the Constitution and right to bodily integrity allows her to terminate her pregnancy and allowed the termination of 22 weeks old pregnancy.
- Case: Nikhil D. Dattar v. Union of India: In this case, the validity of section 3 and 5 of MTP was challenged on the ground of non-inclusion of eventualities vires of the Act. The foetus was diagnosed with complete heart blockage. The petitioner sought to terminate the pregnancy after 26 weeks. The Petitioner also contended that section 5 should be read down to include eventualities In section 3 and directions should be issued to respondent to allow the petitioner to abort the child. The Court rejected the petition and held that since the period of 26 weeks has already passed, the court cannot pass any direction for exercise of any right under section 3nof MTP Act.
- Case: D. Rajeshwari v. State of Tamil Nadu & Ors: In this case, The 18 years old unmarried girl prayed to terminate the pregnancy of child in her womb on the ground that bearing of the child for three months made her mentally ill and the continuance of pregnancy will cause a grave injury to her mental health. The Court granted the termination of pregnancy as it was a result of rape.
- Case: Murugan Nayakar vs. Union of India, The apex allowed the termination of pregnancy of 32 weeks old pregnancy of 13 years old victim after considering the age of victim, trauma she suffered due to sexual abuse and the report of the Medical board. The Court held that it is appropriate to allow the termination of pregnancy.
An evil practice can be curbed not by cutting the stems growing on the trunk above the ground, but by eliminating the roots standing beneath. Social awakening, equality, vigorous campaigning against female foeticide, honest and full enforcement of dowry prohibition, sexual harassment laws are the steps towards uprooting the practice of female foeticide
The objective behind legislating the termination of pregnancy is to provide quality abortion care to all women by increasing accessibility and affordability to safe abortion. There is also a need to bring awareness regarding abortion and contraceptive methods among the youth especially. This requires political will, adequate facilities, infrastructure and training.