Introduction
The term abortion refers to a medical procedure done to induce the termination of pregnancy. Abortion is a fundamental healthcare requirement and is a critical part of reproductive rights. However, induced abortions have been a source of complex legal, moral, and ethical issues. Only 73 countries across the globe permit termination of pregnancy on request. In light of Roe v Wade (1973)[1] being overturned in the US; and Delhi High Court’s decision to deny permission to an unmarried woman, the right to abort her 23-week-old foetus; we must examine just how liberal abortion laws are in India.
Abortion: Scenario in the US
Roe vs. Wade
In 1973, the US Supreme Court gave a landmark decision that affirmed women’s right to abortion was protected under the American constitution. Subsequently, during the 1970s-80s, in a series of cases, the courts struck down various state restrictions on abortion. This led to the creation of two factions i.e. the ‘pro-life’ and ‘pro-choice’ camps. Roe vs. Wade has been overturned in 2022 and now all 50 states of the US have the liberty to make State-specific abortion laws. In 1973, the American Supreme Court set an example that inspired legislatures and judiciaries across the globe to take a progressive stance on abortion laws. Roe vs. Wade being overturned is therefore a major national and international setback.
The Pro-Choice and Pro-Life Camps: Arguments in Favor & Against Abortion
The activists’ from the pro-life camp have argued that legalizing abortion will lead to it becoming more prevalent in society. However, research shows that criminalizing abortion doesn’t lead to a decrease in the number of abortions; instead, it perpetuates unsafe abortion practices and increases the rate of maternal mortality. According to WHO, the average mortality ratio is three times higher in countries with restrictive abortion laws as compared to the countries that have liberal abortion laws.[4]
One of the biggest contentions in this debate is the unborn child’s right vs. the mother’s right. The pro-life camp advocates for the fundamental right to life of the unborn child. The medical community has not yet reached an agreement on the beginning point of the life of a foetus. This has led to further ongoing debate amongst physicians as to till what stage of the pregnancy, termination should be permitted. On the other hand, the pro-choice camp continues to advocate for the right to liberty of the mother and their stance that the mother should be given the choice to terminate the pregnancy at any stage. In India, the Supreme Court has emphasized that a woman has the right to take all necessary precautions, including termination of pregnancy, to preserve her life, as a part of her right to bodily integrity and reproductive autonomy in the case of Meera Santosh Pal v Union of India (2017). [5] When it comes to abortion laws, the pro-life and pro-choice camps with their extremely polarizing political debate continue to influence the decisions of lawmakers across the globe.
Abortion Laws in India: Its Evolution and Current Status
The Ministry of Health and Family Welfare set up the Shantilal Shah Committee in 1964. The committee after reviewing all the medical, legal, and socio-cultural aspects recommended that India should legalize abortion. Up until this point, abortion was criminalized under Section 312[6] of the Indian Penal Code (IPC). Based on the recommendations given by the Shah Committee, the Parliament enacted the Medical Termination of Pregnancy (MTP) Act in 1971, thereby legalizing abortion in India. The MTP Act imposes some restrictions on the situations in which pregnancy can be terminated legally, the people who are qualified to carry it out, and the location where it can be done. The abortion-related provisions in IPC continue to operate outside the sphere of protection that is created by the Act. Oral medical abortion and surgical abortion are the two ways in which pregnancies can be legally terminated in India. Within 12 weeks of conception, the expectant mother has the choice to have an abortion; within a longer window of 20-24 weeks, it must be done with the approval of a medical board. However, in either of the situations, the woman’s liberty to choose is subject to certain limitations. She can legally obtain an abortion:
- If continuing the pregnancy would mean putting her life at risk; or would involve great danger to her physical or mental health (that includes rape).
Taking into consideration the opinion of the medical board, the Supreme Court in the case of X v. Union of India, (2020)[7] granted relief to a 13-year-old rape victim and permitted the medical termination of pregnancy.
- If foetal abnormalities have been detected and indicate a significant risk that if the child were born, he would be severely disabled by physical or mental disorders.
Referring to Section 3 (2) (b) (ii)[8] of the MTP Act, the Supreme Court in the case of Tapasya Umesh Pisal v. Union of India (2018)[9] permitted abortion of a 25-week pregnancy solely on the grounds of foetal impairments.
Who can get an abortion?
Under Indian laws, the legal age for abortion is 18 years. According to the MTP Act, girls under the age of 18 years can terminate pregnancies only with the consent of their parents or guardians. Before the 2021 amendment, under the MTP Act, only married women could cite pregnancy being unplanned, or a result of contraceptive failure as legal reasons to terminate their pregnancy. Now, after the enactment of the MTP Amendment Act in 2021, unmarried women can also obtain an abortion on the ground of failure of contraceptives. Recently in the case of X v. Health & Family Welfare Department (2022)[10], a 25-year-old unmarried woman, who was in a live-in relationship, filed a petition in the Delhi High Court seeking permission to abort her 23-week-old foetus. The Delhi High Court denied her request. The Supreme Court passed an ad-interim order against the Delhi High Court’s decision. The Court observed that although Rule 3B[11] of MTP Rules does not specify unmarried women as one of the categories of women who can obtain an abortion, denying single or unmarried women abortion rights would go against the purpose of the legislation.
Conclusion
A woman’s right to choose whether or not to have children is protected under Article 21 of the Indian constitution[12]. According to the World Population Report published in 2022, deaths due to unsafe abortion practices are the third leading cause of maternal mortality in India.[13] Measures such as: creating widespread awareness, especially among the youth population, making contraceptives easily available and safe abortion more accessible are some of the steps that can be taken to curb unsafe abortion practices in India. Since 1971, India has come a long way in making safe abortion accessible to women. It is evident however that the MTP Act still lacks clarity when it comes to the right to abortion for unmarried women. Therefore, it requires further amendments to lay down specific provisions for unmarried or single women and women in a live-in relationship to guarantee and protect their abortion rights.
Author(s) Name: Vanshika Rajesh Tripathi (ILS Law College, Pune, Maharashtra)
References:
[1] Roe v Wade [1973] 410 U.S. 113
[2] Constitution of India, 1950, art.21
[3] Krishnadas Rajagopal, ‘Women Have Right to Safe Abortion: Supreme Court’ (The Hindu, 21 July 2022) <https://www.thehindu.com/news/national/refusing-safe-abortion-to-unmarried-woman-violation-of-her-personal-autonomy-supreme-court/article65668003.ece> accessed 23 July 2022
[4] Varsha, ‘Is Abortion Legal in India for Unmarried Woman?: Bodily Autonomy and Abortion Laws in India’ (B&B Associates LLP, 3 June 2022) <https://bnblegal.com/article/is-abortion-legal-in-india-for-unmarried-woman-bodily-autonomy-and-abortion-laws-in-india/ > accessed 23 July 2022
[5] Meera Santosh Pal v Union of India (2017) 3 SCC 462
[6] Indian Penal Code, 1860, s 312
[7] X v Union of India (2020) 19 SCC 806
[8] Medical Termination of Pregnancy Act, 1971, s 3(2) (b) (ii)
[9] Tapasya Umesh Pisal v Union of India (2018) 12 SCC 57
[10] X v Health & Family Welfare Department (2022) SCC OnLine SC 905
[11] Medical Termination of Pregnancy Act, 1971, r 3B
[12] K.S. Puttaswamy v Union of India (2017) 10 SCC 1
[13] Esha Roy, ‘Report: 67% Abortions in India Unsafe, Cause Nearly 8 Deaths Every Day’ (The Indian Express, 31 March 2022) <https://indianexpress.com/article/india/india-unintended-pregnancy-abortion-7845655/> accessed 25 July 2022
