RIGHT TO ABORTION: LEGAL PERSPECTIVE
Legalization of abortion has brought a dramatic improvement in women's health reduction in maternal and infant mortality. The right of the women to her private life has been the basis on which several international bodies has upheld the power of a woman to have an abortion. Religious, moral, and cultural sensibilities continue to influence abortion laws throughout the world. Even though in many countries where abortion is legal, it has to meet specific criteria. Further arguments on morality and legality tend to collide and combine, complicating the issue. Those in favour of legal prohibition of abortion describe themselves as pro-life and those against legal restrictions as pro-choice. The Medical Termination of Pregnancy (MTP) Act of 1971 provided grounds for granting abortion by increasing the upper gestation limit from 20 weeks. The past decades have made securing women's right to abortion, with nearly 50 countries liberalizing their abortion laws. Human rights bodies have repeatedly condemned restrictive abortion laws as incompatible with social norms. The biggest challenge is to determine the possibility of a woman to achieve and build a critical mass of support. Medical abortion is not universally provided, even among those qualified to administer it, due to lack of knowledge and unsafe methods. The decriminalization of abortion have removed many criminal sanctions against abortion and has brought new laws and regulations. Abortion is one of the safest medical procedures done following the World Health Organisation's (WHO) guidance.
The entire dispute whirling around abortion is pro-life versus pro-choice. Under various statutes. A fetus is acknowledged as a legitimate person by fabrication and acquires delight only after birth. Bombay HC Reverberates the priority of women’s rights declaring that the court should take care of all the medical facilities of a pregnant woman and the abortion procedure if the parents could not take care of it. The Supreme Court has identified the woman's freedom of choice of either keeping the child or aborting it knowing the risks and the mental health under Article 21 of the Constitution.
Nearly 50% of abortions in India are illegal and it amounts for 9%-20% of all maternal deaths and this is because pregnant women use the unsafe mode of abortion and no awareness of the MTP Act. This percentage is similar to the prevalence in countries where abortion is illegal. When women have opposed abortions under shielded conditions, they go for unsecured abortion, which is one of the leading causes of maternal mortality, particularly in developing countriesAs most of the cases take place in remote areas where a pregnant woman deals with inadequate health conditions.
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, then her 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 written consent.
3. If a woman is unmarried and under eighteen years, written permission from her guardian is a must.
4. If a woman is mentally unstable, she must provide written permission 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 with safety procedures. It de-criminalizes the abortion seeker, especially people from remote areas who see abortion as a crime. The Act also protects the medical practitioners, who otherwise would have been penalized under Section 315-316 of the Indian Penal Code.
Back to the 1960s, when abortion got decriminalizes in 15 other countries, that contemplation for induced abortion in India was commenced as women used to get pregnant before marriage, and the delivery of the child took place before nine months. Increased number of abortions in the country had put the Ministry of Health, and Family Welfare (MoHFW) worried as it leads to infanticide. 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:
· risk to the life of the pregnant woman
· 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. The risk of suffering by pregnant women would be less and could be handled. If it is of necessity 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. Although the act was a remarkable achievement for women’s health and women’s rights when it was enacted, it does not legalize abortion from a women’s rights perspective instead aims at protecting medical providers under the Indian Penal Code (Section 312-316). It has also helped in the empowerment of woman as every woman has her rights to her life.
SHORTCOMINGS OF THE ACT OF 1971
The Act, as it holds today, puts a bar at 20 weeks of gestation. Investigation shows the ban on abortion after 20 weeks irregularly affects women with confined monetary sources, and bearing an undesired pregnancy to express is more dangerous than abortion. There were still many limitations of the MTP Act of 1971 as brutal victims of rape and contraceptives were forced to give birth to the rapist’s child. During this period, the court also turned down the plea of abortion. In various cases, health complications unfold only after the second trimester, or there are systematic barriers before a woman can seek an abortion. In Ms Z v The State of Bihar the rape victim missed the upper limit due to laxity and red-tape of government and was eventually denied a termination. The object of the MTP Act is to eliminate illegal abortions and confer on women the sacrosanct right to have her bodily integrity. During 2008, Bombay HC turned down the plea of Haresh and Niketa Mehta when they appealed to the court after the 22nd week of pregnancy and the 27th week, women suffered the miscarriage which affected her mental as well as physical health.
This Act allows women to obtain legal termination of an undesired pregnancy for a broad range of reasons. This discrepancy needs to be corrected. Case laws show that delay in pregnancy may be augmented when authorities fail to investigate properly; fail to offer pregnancy testing kits to rape victims; question petitioners’ rape allegations; 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 and, in a secure way. Some states include non-essential requirements for abortion services. Few case laws related to abortion, D. Rajeswari v. State of Tamil Nadu and Ors., Dr Nisha Malviya and Anr. v. State of Uttar Pradesh, Murari Mohan Koley v. The State , Shri Bhagwan Katariya and Ors., v. The State of Uttar Pradesh.
ABORTION LAWS AROUND THE GLOBE
Although India was one of the first 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 causing injury to the mental and physical health of the women.
In countries like Canada where the Supreme Court has allowed abortion as women’s authority throughout pregnancy expressing that forcing a woman, by the threat of criminal sanction, to carry a fetus to term is a breach of women’s right to security. And that if the person acting in the convention for force will be punished and imprisoned for a year along with a massive amount of fine.
The US, the states of Alaska, Colorado, DC, New Hampshire, New Jersey, Oregon and Vermont, there are no barriers for the women obtaining an abortion.. In the Netherlands and Norway, women have the ultimate statement in the decision to terminate the pregnancy and no oppression of third parties is permitted. Austria, Sweden, and Korea have higher gestational limits in the abortion process.
REPRODUCING A BRIGHT FUTURE
In March 2020, the Union Cabinet passed the MTP (Amendment) Bill, 2020 intending to expand women’s rights and improve the principal Act. The bill increases the gestational limit to 24 weeks for “certain category of women.” These specific categories include the rape victims, victims of incest, and differently able minors. The Bill amends section 3(2) Explanation II to provide that “the length of pregnancy shall not apply” in a decision to abort a fetus diagnosed with “substantial fetal 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. In contrast, the Bill of 2020 allows a woman to take an independent decision in consultation with a registered health-care provider such as a gynaecologist, a paediatrician and other members in the medical department. It also takes into account the reality of a massive shortage of doctors and trained nurses. It seeks to allow Ayurveda, Unani, and Siddha practitioners to carry out abortions along with the safest and skilled procedure of abortion. In the 2020 Bill, the final decision does not rest upon the doctors.
Finally, while much had been accomplished to increase access to safe abortion services for women in India, there is still much work to be done. States might have a legal interest in securing wildlife. Such benefits cannot be hierarchized 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 instead continues to be a contingent right in India. There are rural areas where women are not provided with safe abortion methods and thus suffer the injury. The sanctitude connected with motherhood and identifying women as child-bearers is apparent in the legal sphere. Amelioration is needed by policymakers and legislators to spread awareness, safe abortion clinics and guidelines for further procedure. Improving women’s access to information and services and understanding of their rights and entitlements will facilitate greater control over their reproductive health decisions, thereby promoting healthier outcomes and lessen the injuries mentally. The women need to know the policies and rules as the care which they would need post- abortion will affect them in the future and that they do not die after abortion. Several issues still line up, but what is essential is the Right of the Women to lead her life safely and without getting shielded into society.
By Ms. Neeati Jha, Legal Intern at S.Bhambri & Associates (Advocates), Delhi.