December 6, 2020

Right to Abortion

INTRODUCTION

The entire wrangle whirling around abortion is pro-life versus pro-choice. Under various statutes[1], a fetal is acknowledged as a legitimate person by fabrication and acquires delight only after birth. Bombay HC reverberates priority of women’s rights declaring that according to international law, a person is endowed with human rights only at birth; an unborn foetus is not entitled to any humanitarian rights.[2] The Supreme Court has identified woman’s freedom of choice whether to bear a child or abort her pregnancy as a facet of one’s seclusion under Article 21 of the Constitution.[3]

Nearly 50% of abortions in India are illegal[4] and it amounts for 9%-20% of all maternal deaths.[5] This percentage is alike to the prevalence in countries where abortion is illegal.[6] When women are opposed abortions under shielded conditions, they go for surreptitious or unsecure abortion, which is one of the main causes of maternal mortality, particularly in developing countries.[7]

Abortion in India is legal only up to twenty weeks of pregnancy, under specific conditions and situations which are defined below :

1. If a woman is married, her own written consent is sufficient. Her husband’s consent is not necessary.

2. If a woman is unmarried, and above eighteen years, she can provide her own written consent.

3. If a woman is unmarried and under eighteen years, she must provide written consent from her guardian.

4. If a woman is mentally unstable, she must provide written consent from her guardian.

THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971

It extends to the whole of India except the state of Jammu & Kashmir. It aims to improve the maternal health scenario and legalizes abortion services. It de-criminalizes the abortion seeker and promotes safer abortion services. This act also protects the medical practitioners, who otherwise would be penalized under Section 315-316 of the Indian Penal Code.

Back to the 1960s, when abortion got decriminalized in 15 other countries, that contemplation for induced abortion in India was commenced. Increased number of abortions in the country had put the Ministry of Health and Family Welfare (MoHFW) worried. In 1964, the Government of India inducted a committee led by Shantilal Shah to crop up with propositions to draft the abortion law in India. The Medical Termination of Pregnancy Act, 1971 was thus enacted which permitted abortion up to 20 weeks of gestation where there is[8]:

  • risk to life of the pregnant woman or grave injury physical or mental
  • physical, or mental abnormalities if the child were born.

As per the Act, pregnancy can be terminated in good faith of two registered medical practitioners if the gestation period exceeds 12 weeks. Victims of rape and contraception failure are protected. If it is of necessary to protect the life of a pregnant woman, then it’s an exception to the Act. The Supreme Court held the rationality of the Act in Nand Kishore Sharma v. Union of India.[9] Although the act was a remarkable achievement for women’s health when it was enacted, it does not legalize abortion from a women’s rights perspective rather aims at protecting medical providers under the Indian Penal Code (Section 312-316).

SHORTCOMINGS OF THE ACT OF 1971

The Act as it holds today puts a bar at 20 weeks of gestation. Investigation shows that ban on abortion after 20 weeks irregularly affects women with confined monetary sources[10] and bearing an undesired pregnancy to express is more dangerous than abortion[11]. In various cases, health complications unfolds only after second trimester or there are systematic barriers before a woman can seek abortion. In Ms. Z v State of Bihar[12], the rape victim missed the upper limit due to laxity and red-tape of government and was eventually denied termination. The object of the MTP Act is to eliminate illegal abortions and confer on women the sacrosanct right to have her bodily integrity[13].

This act allows women obtain legal termination of an undesired pregnancy for a broad range of reasons, the concept of contraceptive failure applies only for married women. This discrepancy needs to be corrected. Fast changing social culture and scientific developments have not been thought of[14]. Case laws show that delay in pregnancy may be augmented when authorities fail to properly investigate[15]; fail to offer pregnancy testing kits to rape victims; question petitioners’ rape allegations;[16] or confusion about the PCPNDT Act and POCSO Act. The World Health Organization has expressed that induced abortion later in pregnancy is safe if performed with medical standards.[17] Some states include non-essential requirements for abortion services. Few case laws related to abortion, D. Rajeswari v. State of Tamil Nadu and Ors.[18], Dr. Nisha Malviya and Anr. v. State of Uttar Pradesh[19], Murari Mohan Koley v. The State[20] , Shri Bhagwan Katariya and Ors., v. The State of Uttar Pradesh[21].

ABORTION LAWS AROUND THE GLOBE

Although India was one of the initial countries to have legislation allowing abortion, Indian women are opposed rights that are secured worldwide. Countries like Vietnam, Switzerland and China permit abortion without gestational limit. The Canadian Supreme Court has allowed abortion as women’s authority throughout pregnancy expressing that forcing a woman, by threat of criminal sanction, to carry a foetus to term is a breach of women’s right to security.[22]

In US, the states of Alaska, Colorado, DC, New Hampshire, New Jersey, Oregon and Vermont, there are no barriers on the women obtaining abortion.[23] In Netherlands and Norway, women have the ultimate statement in decision to terminate the pregnancy and no opppression of third parties is permitted.[24]Austria, Sweden and Korea have higher gestational limits.

REPRODUCING A BRIGHT FUTURE

In March 2020, the Union Cabinet passed the MTP (Amendment) Bill, 2020 with a view to expand women’s rights and improve the principal Act. The bill increases gestational limit to 24 weeks for “certain category of women.” The Bill amends section 3(2) Explanation II to provide that “the length of pregnancy shall not apply” in a decision to abort a foetus diagonised with “substantial foetal abnormalities” or if it is “alleged by the pregnant woman to have been caused by rape.” Under the 1971 Act, even pregnant rape victims cannot abort after twenty weeks, compelling them to move the court. It allows a woman to take an independent decision in consultation with a registered health-care provider. It also takes into account the reality of a massive shortage of doctors and trained midwives, and seeks to allow Ayurveda, Unani, and Siddha practitioners to carry out abortions.

CONCLUSION

States might have legal interest in securing expectant life, such interests cannot be hierarchize over the legal rights granted to women. In the prevalent patriarchal society, the fetal interest confusion though diluted, overrides women’s authorities. Abortion is not an option rather continues to be a contingent right in India. The sanctitude connected with motherhood and identifying women as child-bearers is apparent in the legal sphere. Reproductive health has not received the scrutiny it earns from the state. Amelioration is needed by policymakers and legislators to spread awareness, safe abortion clinics and guidelines for providers for opinions in abortion cases and to ensure that right to abortion in dignified in the society.

References

[1] Transfer of Property Act, 1882, § 13.

[2] High Court on its Own Motion v. State of Maharashtra, 2016 SCC Online Bom 8426.

[3] K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1; Suchita Srivastava v.Chandigarh Administration, (2009) 9 SCC 1.

[4] Center for Reproductive Rights, Ensuring Reproductive Rights, (Apr. 5, 2020, 6:30PM), https://reproductiverights.org/sites/default/files/documents/Post-20-Week-Access-to-Abortion-India-0218.pdf.

[5] Mary Philip Sebastian, M.E. Khan & Daliya Sebastian, Unintended Pregnancy and Abortion in India: Country Profile Report, STEP UP (Apr. 8, 2020, 12:40AM), https://www.popcouncil.org/uploads/pdfs/2014STEPUP_IndiaCountryProfile.pdf.

[6] World Health Organization, Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2008, (Apr. 5, 2020, 4:40PM), https://apps.who.int/iris/bitstream/handle/10665/44529/9789241501118_eng.pdf?sequence=1&isAllowed=y.

[7]World Health Organization, Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2008, (Apr. 5, 2020, 4:40PM), https://apps.who.int/iris/bitstream/handle/10665/44529/9789241501118_eng.pdf?sequence=1&isAllowed=y.

[8] Abortion in India, https://www.en.wikipedia.org/

[9] Nand Kishore Sharma v. Union of India, AIR 200 Raj 166.

[10] Diana Greene Foster & Katrina Kimport,Who Seeks Abortions at or After 20 Weeks?,Guttmacher Institute (Apr. 6, 2020, 11:25AM), https://www.guttmacher.org/journals/psrh/2013/11/who-seeks-abortions-or-after-20-weeks.

[11] Bixby Center for Global Reproductive Health, Abortion Restrictions Put Women’s Health, Safety and Wellbeing at Risk, UCSF (Apr. 6, 2020, 3:50PM), https://bixbycenter.ucsf.edu/sites/bixbycenter.ucsf.edu/files/Abortion%20restrictions%20risk%20women%27s%20health.pdf

[12] Ms. Z v. State of Bihar, (2018) 11 SCC 572.

[13] SarmishthaChakrabortty v. Union of India, (2018) 13 SCC 339

[15] Termination of Pregnancy and Abortion in India, https://www.angloinfo.com/

[16] JamanaSuthar v. State of Rajasthan, 2019 SCC Online Raj 3468; Indu Devi v. State of Bihar, (2017) 14 SCC 525.

[17] World Health Organization, Safe Pregnancy: Technical and Policy Guidance for Health Systems, (Apr. 9, 2020, 12:30AM), https://apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf?sequence=1.

[18] D. Rajeswari v. State of Tamil Nadu and Ors, 1996 CriLJ 3795

[19] Dr. Nisha Malviya and Anr. v. State of Uttar Pradesh, 2000 CriLJ 671

[20] Murari Mohan Koley v. The State, (2004) 3 CALLT 609 HC

[21] Shri Bhagwan Katariya and Ors., v. The State of Uttar Pradesh, 2001 (4) MPHT 20 CG

[22] R. v. Morgentaler, (1988) 1 SCR 30 (Can.).

[23] Kaiser Family Foundation, States with Gestational Limits for Abortion, (Apr. 9, 2020, 01:10AM), https://www.kff.org/womens-health-policy/state-indicator/gestational-limit-.

[24] Center for Reproductive Rights, Ensuring Reproductive Rights, (Apr. 5, 2020, 6:30PM), https://reproductiverights.org/sites/default/files/documents/Post-20-Week-Access-to-Abortion-India-0218.pdf.


Author Details: Vasundhara Dhar (Birla Global University)

The views of the author are personal only. (if any)

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