IS ABORTION TRULY LEGAL IN INDIA? A COMPARATIVE ANALYSIS

Introduction

India has had a mixed history regarding the right to abort unborn babies. Before 1971, abortion was criminalized under Sections 312 to 316 of the Indian Penal Code. However, these rules of law only allowed an abortion when miscarriage was involved and did not establish abortion as a right. This law allowed abortion only if it was in good faith or to save the life of a mother. Apart from these two reasons, abortion was considered illegal in India. However, with changing times and with voices of women being raised, the Government of India 1971 passed the Medical Termination of Pregnancy (MTP) Act in 1971[1], to regulate and ensure access to safe abortion. The implementation of such a law was a huge step for a conservative country like India. While the implementation of this Act was initially seen as a big step forward, it eventually came to light that the policies mentioned under this act further restricted the right of women to abort.

Section 4, sub-section (b) of the Act claimed the requirement of a secondary approval from another doctor after 12 weeks of pregnancy, which was severely criticized.  For this act, there were certain conditions set out for what kind of doctor could be referred to. This meant that only a handful of qualified doctors could be referred to for their opinion on Abortion. Secondly, women living in vastly populated rural areas or even in small cities could not get an abortion due to the unavailability of doctors in their respective areas.

This further shows the catastrophe of living in a patriarchal society and also the economic disparities of rural India. Post-1990, the Government of India took crucial steps to increase access to legal and safe abortion services by implementing policies designed to expand the number of legal abortion providers. Despite the legality of abortion provision in the public sector, the actual provision at lower-level public facilities (such as primary health centres) was scarce prior to 2000.

In 2000, the National Population Policy officially recommended expanding the provision of abortion up to eight weeks of gestation to all public facilities, including primary health centres.[2] The major amendments, however, came in the year 2002-2003 wherein efforts were made to streamline registration of private doctors as abortion providers and thereby expanded access to safe abortion services.[3] In 2003, an amendment to the MTP Rules and Regulations was passed to enable certified abortion providers to prescribe medical abortion drugs outside a registered setting, as long as emergency facilities were available to them. Similarly, several other changes were brought in the upcoming years of 2010 and 2014.

However, the most recent amendment came in March 2021, wherein the upper gestation limit was increased from 20 weeks to 24 weeks and the opinion of a second doctor was only required between the 20–24-week period. This change in policy was a much-needed one and was appreciated all over the country. However, in our country, the termination of pregnancy is only allowed under two conditions: (i) the pregnancy could harm the mental and physical health of the woman; or (ii) there was a substantial risk that the foetus could be born with serious physical or mental abnormalities.

This essentially means that a woman still does not have the right to terminate a baby of her wish. If one were to critically analyse ‘mental health of a woman’ one could come to the interpretation that not listening to the personal choice of a woman to terminate a pregnancy is essentially the worsening of mental health and thus the act would contradict this sort of thinking.

A Global Comparison

While the legal status of abortion differs from region to region, it is mostly accepted as a general practice globally and is banned in 26 countries over the world. Most developed nations allow the process without any restriction and on the request of the person, while 125 other countries allow it for several other reasons such as socioeconomic reasons, risks to the physical or mental health of the woman, or the presence of foetal anomalies.[4]

Many debates have been held after the controversial judgement passed in the U.S. Supreme Court of Roe v. Wades (1973).[5] It was held in this landmark judgment that the constitution guarantees women the right to choose to have an abortion which cannot be overruled by the different state laws. This judgment has been used as a steppingstone all over the world and has not since been overruled.

This shows that when the concept of abortion was newly introduced in India, countries like the U.S. were miles ahead of us in terms of being progressive. In all countries, there are certain grounds upon which abortion can be permitted. In India, abortion is mainly permitted on social and economic grounds. The rationale behind this in my opinion is that aborting unwanted pregnancies will help in reducing the already high population in India, while at the same time reducing the economic burden on the family.

The courts of most major nations around the world have ruled in favour of abortion. In Canada, in the case of Morgentalor Smoling and Scott v. R (1988),[6] the court held in favour of the pregnant women who wanted an abortion quickly but the criminal code of the country was delaying this process due to the numerous formalities. In another judgment in the United Kingdom, it was held in the case of Paton v. the United Kingdom (1980)[7] that abortion could only be permitted if the continuance of the pregnancy posed a risk to the mother. The same judgment was upheld in another court case of H v. Norway (1992).[8]

It is also worth noting that since 2000, most countries have expanded their abortion services making them more liberalized and easily accessible. In my humble opinion, it is certainly better to have liberalized abortion policies rather than restrictive ones. Further research shows that countries with restrictive policies have significantly higher fertility rates and also a much higher rate of unsafe abortions.[9] This clearly shows a need for restrictive countries to liberalize their policies and with time go even a step further by making the right to abortion a fundamental right.

Right to Abortion

If we travel back in time, we may find that the right to abortion, which is an inherent human right, was strongly opposed by society as a whole. People were of the view that the right of the inborn superseded the right of the mother, which in my opinion is a gross denial of a woman’s individual right to life and right to liberty which are both included under Article 21 of the Indian Constitution. This topic came into the picture after the infamous judgment of Roe vs Wade. In the following case, the United States Supreme Court held that the Texas criminal abortion statute, which criminalizes abortion except to save the life of a mother is violative of the due process clause of the Fourteenth amendment.[10] It was further held that the right to privacy is founded on the concept of personal liberty under the Fourteenth Amendment and is broad enough to encompass a woman’s decision to terminate her pregnancy and the right to abortion comes under the personal right to privacy.[11] Subsequently, other countries followed in the footsteps of the U.S. Supreme Court, thus taking a decision to prioritize the mothers’ health and life.

CONCLUSION

Coming back to India, one close look at the MTP Act, 1971, and the substantive laws in the IPC would reveal that the Indian government has still not given any right of abortion to a woman for terminating her pregnancy. The complete decision depends upon the medical practitioners. If the medical practitioner approves in good faith, then and only then can a pregnancy be terminated. Here IPC and MTP Act infringes the right to privacy, right to health, and right to dignify a woman which has been guaranteed by Article 21 of the Indian Constitution.

However, in recent times the Indian Courts seem to have a difference in opinion and have recognised a woman’s right to abortion in certain cases. In the case of Suchita Srivastava and v. Chandigarh Administration,[12] the Supreme Court and the High Court have respectively affirmed women’s rights to choose in the context of continuing a pregnancy. The Supreme Court in this case clearly held that the state has an obligation to ensure a woman’s reproductive rights as a component of Article 21’s right to personal liberty, dignity, and privacy. In another landmark judgment of Laxmi Mandal v. Deen Dayal Hari Nagar Hospital,[13] the Delhi High Court held that preventable maternal death represents a violation of Article 21 of the Constitution. This further created a state obligation to take steps to end preventable maternal death, including deaths caused as a result of inadequate access to safe abortion. [14]

Following international as well as domestic judgments, the Indian government must take the necessary steps to recognize a woman’s right to abortion as a fundamental right and thus prioritize the right of a woman over the right of an unborn.

Author(s) Name: Amitoj Singh Chadha (OP Jindal Global University, Sonipat)

­­References:

[1] Medical Termination of Pregnancy (MTP) Act1971.

[2] Hirve SS, ‘Abortion Law, Policy and Services in India: A Critical Review’ (2004) 12 Reproductive Health Matters 114

[3] The Medical Termination of Pregnancy Amendment Act, 2002

[4] Vogeslstien RB and Turkington R, ‘Abortion Law: Global Comparisons’ (Council on Foreign Relations2019) <https://www.cfr.org/article/abortion-law-global-comparisons> accessed October 1, 2021

[5] 410 US 113 (1973)

[6] 1988 44 DLR (4th) 385

[7] 1980 3 EHRR 408

[8] (1992) 73 DR 155

[9] Mishra V and Ferre J, ‘Abortion Policies and Reproductive Health Outcomes’ [2014] Statistical Papers – United Nations (Ser. A), Population and Vital Statistics Report 14

[10] US Supreme Court Reports, Vol 35, The lawyers cooperative publishing co., New York p.147 to199

[11] Gochhayat SA, “Understanding of Right to Abortion under Indian Constitution” [2011] SSRN Electronic    Journal

[12] Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1

[13] Laxmi Mandal v. Deen Dayal Hari Nagar Hospital W.P.(C) No. 8853 of 2008

[14] Jain D and Mcbroom K (Centre for Health Law, Ethics and Technology 2016) rep

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