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Abortion Laws in India and the Lacunas in it – A Critical Review

Introduction

Abortion has been a highly controversial matter in biological values till the time. It is a widely disputed topic all around the world and there are different standpoints on its legality. The question that arises around the point is whether it comes within the ambit of the Indian Constitution or it is still unable to meet the conditions for recognition as a fundamental right. Pregnancy is a wonderful experience for a woman, but there are certain instances when it becomes necessary to terminate it, i.e. to abort the child. Therefore, abortion is a process to end the pregnancy by oneself. In India, abortion became legal in 1971 with the introduction of the Medical Termination of Pregnancy Act, 1971. Previously, abortion was not designated as a right because society was strongly against it. It has been regarded as foetal murder. Following the landmark case Roe v. Wade (1971), decided by the apex court of the United States, most countries today recognize abortion as a human right. However, many people are still against it, and some believe it should be declared illegal. 

Laws relating to Abortion in India

Indian Penal Code, 1860

The Indian Penal Code, 1860, has declared the voluntary miscarriage of a child, a punishable offence, i.e. abortion has been made illegal throughout the country. The word “causing miscarriage” has been used instead of “abortion” in this act. According to Section 312 of this act, any person who induces a woman to miscarry the child would be punished with imprisonment up to 3 years or a fine or both if that miscarriage has not been done in good faith. It also includes the woman who causes herself to miscarry. Under Section 315 of the said Act, if a person does an act with the intention of stopping the child from taking birth alive or causing it to die after the birth, is a criminal offence and the woman who wants the abortion, as well as the doctor, can be prosecuted. Miscarriage means unplanned abortion which is not punishable, whereas criminal abortion, i.e. creating a miscarriage voluntarily, is illegal under Section 312. However, therapeutic abortion is permissible under the same provision and the pregnancy can be put to an end if the mother’s life is at risk.

Medical Termination of Pregnancy Act, 1971

The Medical Termination of Pregnancy Act of 1971, was enacted after the Abortion Act of 1967, which has been adopted in the United Kingdom. According to the Preamble of the MTP Act, it is “an act to provide for the termination of certain pregnancies by registered medical practitioners and for matters associated with or incidental thereto.” A registered medical practitioner can conduct a therapeutic abortion in certain situations, under this act. The act stipulates the situations in which a pregnancy can be put to an end, the time bounds, the instances for such terminations, and the person who is authorised to perform such abortions. Section 3 of this act states certain situations due to which a pregnancy can be put to an end, such as –

  • Prenatally identified disability of the unborn child
  • When the life of a mother is at risk of death or major injuries
  • When a pregnancy occurs as a result of sexual harassment or rape

The act also stipulates that a pregnancy can be put to an end within 12 weeks, and if an abortion is done in the middle of 12 and 20 weeks on some grounds, the opinions of more than one doctor are required. The legislation makes terminating a pregnancy after 20 weeks illegal. As per this statute, a doctor’s advice should be given in good faith. The phrase “good faith” is nowhere defined under the act, but it is defined in the IPC,1860, as “an act to be done with appropriate care and caution.” 

The Constitution of India

The Right to Abortion as the right to live with dignity and to take own decisions certainly falls within the ambit of Article 21 of the Indian Constitution unless it obstructs the current legal scenario. As per Article 21, unless otherwise stated by law, everyone within the territory of India has the right to life and personal liberty. The Supreme Court of India recognised reproductive and physical autonomy as a basic right under Article 21 in the case of KS Puttuswamy v. Union of India and Navtej Singh Johar v. Union of India. Denying women the right to make decisions about their bodies is a breach of gender equality as mentioned in Article 14

The Medical Termination of Pregnancy Act, 2021

The Medical Termination of Pregnancy (Amendment) Bill received Presidential assent on March 25, 2021. The Act amends certain provisions of the 1971 act by expanding the number of weeks up to 24 weeks, which was previously 20 weeks, in which a woman can keep her pregnancy and defining certain circumstances under which a pregnancy may be put to an end at any time. Under the said Act, if a woman in India seeks to end her pregnancy in the middle of 20 and 24 weeks, a medical board at the state level would be established to decide this after reviewing her records. This act now covers women who are survivors of sexual assault, rape, or incest, minors, those whose marital status gets changed during pregnancy (widowhood and divorce), and those with physical disabilities. It also includes pregnant women who are mentally unfit, as well as cases of fetal abnormality with a high probability of being life-threatening. This act would further allow the ending of pregnancy in circumstances when the child, if born, will be disabled due to physical or mental abnormalities.

Abortion and Sex determination

The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act (PNDT Act) of 1994, and its amended version i.e Pre-Conception and Pre-Natal Sex Selection and Determination (Prohibition and Regulation) Act 2002, prevents the use of scientific techniques and tests for determining sex, which could lead to abortion of female foetuses. The act even makes it illegal to advertise the use of these tests and conducting these tests to reveal the fetus’s gender.

The Lacunas in these Abortion Laws – A Critical Analysis and Suggested Remedial Measures

Medical Requirements

The MTP act can strongly be criticised on the basis that another doctor’s opinion is required for an abortion after 12 weeks, which makes it difficult, particularly in remote areas. Moreover, India does not have enough certified and educated medical practitioners to fulfil the country’s projected needs for abortion. Therefore, pregnant women are forced to opt for dangerous abortion methods, which results in over 8 deaths every day. The practitioners of AYUSH and nurses should be taught to guide pregnant women wanting abortions on oral as well as vaginal medicines. This will result in reducing the number of women who die due to inadequate abortion techniques while simultaneously allowing other women to get competent medical treatment.

Medication Costs

There are two sorts of medications used to end a pregnancy: vaginal and oral medications. Both are extremely expensive and out of reach of common people. Doctors have jurisdiction over drugs, and they profit from their position of power and women’s helplessness by selling medicines at exorbitant prices. As a result, there must be cost-control measures in place for certain medications, and they must be added to the national list of essential medicines.

The conflict between POCSO and MTP act

It is legal to terminate a minor’s pregnancy with the consent of her guardian or parents under section 3 of the MTP. The POCSO act, on the other hand, makes it mandatory to do so. The doctor is required by the rules of POCSO to report the pregnancy to them. Minors prefer to see unlicensed doctors for the same reason, which can be extremely dangerous and even fatal. The government must address these concerns in order to establish clear rules and regulations.

Slow Judicial Proceedings

Whether it is a matrimonial dispute or an abortion case, the Indian judiciary has been severely criticized for its slow proceedings. The court’s decision comes after the expiration of the three-month termination period of the woman. As a result, for the proper functioning of courts on abortion problems, a separate bench may be formed to expedite the cases.

Conclusion

In conclusion, whereas Indian abortion laws are made to help and emancipate women, their application and substantive parts are filled with errors. The MTP Act has to be updated in order to keep up with modern technology and medical practices. The POCSO Act must also be amended to remove its tussle with the MTP Act. In addition, India’s medical and legal infrastructure must be enhanced. As a result, it is imperative that the government and society work together to reform the substantive and operational aspects of India’s abortion laws and policies.

Author(s) Name: Ankita Singh (University of Delhi)