“There is no freedom, no equality, no full human dignity and personhood possible for women until they assert and demand control over their own bodies and reproductive process. The right to have an abortion is a matter of individual conscience and conscious choice for the women concerned.”
Women and their right to reproductive health are essential for the understanding of human rights. The emerging influence of the patriarchal set up of society has often silenced such conversations.
The deportation of a fetus from the uterus before it has reached the stage of viability is known as Abortion. It implies taking away a human life and therefore, it has always been debatable for its ethical aspect. A war of words based on legal rationale will be conferred by the people favoring liberal abortion. People who are against it often come up with religious and moral arguments to counter the former.
We have come a long way, from criminalizing abortion to finally approaching abortion laws more munificently. There’s a lot to modify despite this liberal outlook.
History of Abortion Laws in India:
Before 1971, Abortion was criminalized under Section 312 of the Indian Penal Code, 1860, and a punishable offense describing it as deliberately causing ‘miscarriage’ except in cases where abortion was carried out to save the life of the woman. Abortion was illegal in almost every country of the world even at the half of the twentieth century. But on January 22nd , 1973, it was recognized by the court in Roe v. Wade case that the constitutional right to privacy is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The other countries changed the way they perceive abortion after this landmark judgement of United States concerning the legality of abortion.
The European countries began to legalise abortion after that judgement. Abortion became legal in 15 countries in the 1960’s and that is when it caused deliberations on a legal framework for induced abortion in India. The increased number of abortions that took place put the Ministry of Health and Family welfare on alert. To draft the abortion law for India, the government installed a committee in 1964 led by Shantilal Shah. The recommendations of this committee was introduced in the parliament as Medical Termination of Pregnancy Bill and the bill was passed in 1971 as Medical Termination of Pregnancy Act.
The Explicitness of the Medical Termination Act, 1971
The Medical Termination of Pregnancy Act (MTP) permits to terminate pregnancy for a broad range of conditions upto 20 weeks of gestation:
when the life of the pregnant woman is at risk or could cause an injury to her physical or mental health
if born or dead, the child would be seriously handicapped due to physical or mental abnormalities
when pregnancy is caused due to rape
when pregnancy is caused due to failure of contraceptives used by a married woman
The Medical Termination Act also specifies who, when and where the pregnancy can be terminated. The Act also states that it was compulsory to obtain consent from the mother or from the guardian if the woman is a minor or ‘lunatic’. This legislation left a lot to be yearned due to the logistical hindrances even though this legislation was noble in it’s intention and purpose. There were a lot of time consuming procedures and therefore, the legislation was revised in 1975 inorder to eliminate them and make the services accessible.
What’s wrong with the Medical Termination of Pregnancy Act?
The Act states that the viewpoint of only one medical practitioner is required to abort the fetus lawfully if the length of the pregnancy is within 12 weeks but the woman needs the viewpoint of two medical practitioner if the length of the pregnancy is between twelve to twenty weeks. India lacks a sufficient number of trained medical practitioners and therefore, women in rural areas end up doing unsafe methods to abort the baby. It is a struggle for the women in rural areas to find professional medical practitioners who provides all the facilities and proper abortion services. According to All India Rural Health statistics, there are only 1351 gynaecologists and obstestricians in community health clinics across rural India. Therefore, it is necessary to solve this problem as soon as possible where one of the ways would be to train more service providers. It can be done by increasing staffing, eliminating time consuming procedures, conducting awareness programs and amending legislations that can keep up with the technology. The Medical Termination of Pregnancy Act was an ignorant towards the change of technology. Technology advancement has enabled medical science a different set of new procedures for the abortion in late pregnancy. The legal framework permitted abortion only upto the twentieth week and therefore, leading to a scratchy implementation since the doctors can detect defects in the fetus even after the twentieth week. Petitions were filed before the introduction of MTP Act pointing out the irregularities in the principle Act 1971. The judgements and orders were quite confusing since the courts responded erratically which have been different in their approach.
The Sec 3 and Sec 5 of the MTP Act was challenged based on the inclusion of the eventualities vires before the court in Nikhil D. Dattar v. Union of India. The woman wanted to terminate the pregnancy since the fetus was detected with complete heart block in her twenty-sixth week of pregnancy. The petition was dismissed by the court and stated that Sec 5 can only be granted if life of the pregnant woman is at risk. However the Supreme court permitted a twenty four week pregnant rape survivor to abort the baby in Ms.X v. Union of India. This resulted as a deep anguish for mothers.
Further, the ambiguity arised when the Medical Termination Act 1971 provisions were unclear about permitting unmarried women for abortion due to contraceptive failure.
There are two significant barriers while implementing the MTP Act i.e; Prevention of Children from Sexual Offences Act, 2012 (POSCO Act) and Pre-Conception Pre-Natal diagnostic Techniques Act, 1994 (PCPNDT). It has been mentioned in the POSCO Act that it is mandatory to report for all the doctors attending to a termination of a pregnant minor. The failure of the same will result in legal prosecution. Therefore, doctors these days often hesitate in providing abortion services to women and young girls. As a result, the minor ends up doing abortion in an unsafe manner conquering the entire purpose of MTP Act and violating the clause of ‘anonymity’.
Sometimes, the administrative and judicial response has often led to delay beyond the gestation period. In Ms. Z v. State of Bihar and others, a pregnant lady who was homeless and with HIV, got to know about her pregnancy only after seventeen weeks. The hospital denied her request and hence the case went to the High court where the petition was dismissed there too. The Supreme Court finally rejected the case for exceeding the gestation limit under law.
There were 243 appeals filed before the High court and one appeal before the Supreme Court between May 2019- August 2020. The numbers were increasing due to the lack of awareness among women in socially vulnerable sections. Therefore it is important to review these petitions inorder to abort the baby safely.
In countries like India, the societal evils play a bigger role than the legal framework especially, for women. Women have made a notable progress in reducing gender gaps and yet the realities of women and girls are getting trafficked since we are living in a world full of hypocrites. An unmarried woman who has done abortion is deemed to be unacceptable in a conservative society. Religious and moral objections by the society on a woman often lead to a pressure affecting her mental health. It took several landmark judgements and women’s right movement to wake up the rest of the world. Some oppose abortion as a means of taking human life, advocating that no human should be allowed to take the life of another even if the latter is an unborn child. Although this is righteous, it is also argued that abortion should be a women’s own prerogative as it is her body. Those advocating for women’s right often argue that the foetus is not an independent entity of life during the first trimester of pregnancy, as he cannot survive independent of the mother. Therefore, abortion does not amount to murder or taking away human life. Another argument often advanced is that early motherhood could have adverse effects, including financial, mental and social for the mother and child.
The scope of reproductive rights in India needs to be broadened and abortion should as a woman’s fundamental right to practice her choice Therefore, the states should empower women to practice her choice and to take care of her reproductive health. A woman should have the right to decide if she can bear the child both physically and mentally.
A HANA FATHIMA
IFIM LAW SCHOOL BANGALORE