A CRITICAL ANALYSIS OF THE ABORTION LAWS IN INDIA

INTRODUCTION

Pregnancy is a beautiful experience, but sometimes, situations come where one needs to terminate that pregnancy. In such cases, abortion is being practised by various methods, like surgical methods and taking pills. This blog is an attempt at understanding the issue of abortion. This blog answers various questions regarding the concept of legal termination of pregnancy, for example, how abortion laws were introduced? What are those rules?  This blog also deals with the criticism of the law, regarding abortion and provides the measure to overcome those critics.

ABORTION: HISTORY

Women previously were not allowed to practice abortion, a medical procedure to bring the pregnancy to an end. Many women lost their lives, just because they weren’t legally permitted to choose their well-being. After the launching of the “Pro-choice” movement or demonstration, the issue was widely reached by the authorities. The phrase meant, advocating the legal right of a woman regarding her abortion of pregnancy.  Union of Soviet Socialist Republics (USSR) was the first one to grant abortion rights to females in 1948. Nazi Germany then adopted the idea of terminating the birth of physically disabled children. England was the first one to put restrictive laws on the termination of pregnancies by choice, but the country, after seeing the reforms in various other countries, changed its laws and allowed pro-choice by putting forward various conditions.

INDIAN LEGAL FRAMEWORK FOR ABORTIONS: MTP ACT, 1971

MTP stands for the medical termination of pregnancy act, it was legislation related to pro-choice. It acts no. 34 of 1971. It follows strict regulations regarding the same. Some of them are mentioned below:

  • Section 2 (h)[1]: this article says that, for termination of pregnancy (approved), only registered gynaecologists can carry out the act. Pregnancies can only be terminated within the 3 months of it by the process of induced miscarriage, that too by the approval of a medical specialist.
  • Section 3[2]: Pregnancies; that can be terminated within the 5 months of it are mentioned in this section. It can only be approved by the approval of 2 medical specialists.

The grounds, on which it is approved, are:

  • Pre detected disability of the unborn child
  • When there is a risk to the life of the mother
  • When the pregnancy is conceived due to some sexual harassment or rape. 
  • Pregnancy of a minor with the permission of her parents or guardian
  • Section 4[3]: talks about the place and time, at which it can be terminated. Abortion can’t take place anywhere other than a hospital, maintained by the government.
  • Section 5[4]: mentions the conditions where sections 3 and 4 are not applicable.
  • Sections 6 and 7[5]; mention, who has the power to make provisions regarding this act, and the power, lay in the hands of the government.
  • Section 8[6] protects the actions, taken in good faith by the registered medical practitioner.

Comprehensive Abortion Care

CAC is a training and service delivery guideline. It came in 2014 intending to provide training to the medical practitioners and staff to make the process of hospitality in the issue more effective and safe.

PCPNDT ACT

It stands for Pre-Conception and Pre-Natal Diagnostic Techniques.[7] It was in traduced to save girl child. People, tend to terminate the pregnancy if the unborn child is a girl child. Therefore, it was enacted to prohibit sex-selection deaths.

CRITICAL ANALYSIS OF INDIA’S ABORTION LAWS AND MEASURES TO OVERCOME THE CRITICS

Cost of medicines: Medicals used for the termination of pregnancy are of two types, namely, vaginal and oral medicines. Both of them are very costly, and out of reach of the people of the lower class. The doctors have the authority over the medicines, taking advantage of their power and woman’s helplessness; sell the medicines at an exorbitant rate. Therefore, there must be regulations regarding the cost of these medicines and they must be shifted to the national list of essential medicines.

The conflict between POCSO and MTP: Under section 3 of MTP, it is allowed to terminate the pregnancy of a minor with the permission of her guardian or parents. On the other hand, the POSCO act makes it obligatory to do the same. Under the rules of POSCO, the doctor needs to report the pregnancy. Due to the same reason, minors prefer to go to unregistered doctors, which can be very harmful and can cause death. It is high time now for the friction between the two acts. They must resolve these issues to provide clear rules and regulations.

Requirement for more doctors: The number of termination cases is increasing day by day, but doctors have always been in shortage. It has to lead to abortion by other doctors, that aren’t safe and the same causes 4000 deaths every year. The government needs to register more doctors for the well functioning of the act.

Slow Judicial procedure: It has been an all-time criticism for the Indian judiciary, whether it’s a property case or an abortion case. The judgment is so slow, that it decides after the woman loses her term of termination, i.e. of 3 months. Hence, concerning the proper functioning of courts on abortion issues, a different bench may be constituted for fast-tracking the cases.

MTP must be facilitative instead of restricting: The pro-choice movement demanded woman’s choice in the issue of termination of pregnancy. The MTP doesn’t grant many choices to women, it has only been another restrictive act. Now, is the time for changing the policies of MTP, and making it a facilitative act instead of a restrictive one.

CONCLUSION

The MTP act of 1971 has been useful but its application suffers from some serious faults that need to reform. The conflict between the POSCO act and the MTP act, being widely criticized, needs to be resolved. It’s high time now the abortion issues can’t be dealt with properly until the legislature doesn’t get rid of these critics. The blog post took the help of secondary data for the research work. It includes significant topics, required to have an informed idea about the abortion laws in India.

Author(s) Name: Mansi Chaudhary (Rajasthan School of Law for Woman)

References:

[1] Medical Termination of Pregnancy Act 1971, s2 (h).

[2] Medical Termination of Pregnancy Act 1971, s3.

[3] Medical Termination of Pregnancy Act 1971, s4.

[4] Medical Termination of Pregnancy Act 1971, s5.

[5] Medical Termination of Pregnancy Act 1971, ss6 and 7.

[6] Medical Termination of Pregnancy Act 1971, s8.

[7] Pre-Conception and Pre-Natal Diagnostic Techniques Act 1994.

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