The Supreme Court of India recently took a landmark decision to allow a 24-year-old rape survivor to terminate a 24-week pregnancy, as the foetus has abnormalities, and going ahead would severely affect the woman’s health. This is a landmark judgment. It is because after 20 weeks of pregnancy a woman in India is not allowed by law to abort a foetus.
Abortion in India:
Abortion in India is legal only up to 20 weeks of pregnancy, under specific conditions and situations, which are defined as:
- If the continuance of pregnancy risks the life of the woman or may result in grave physical or mental injury.
- If there is a substantial possibility of the child being born with physical or mental abnormalities, as to be seriously handicapped.
Who has the right to abort?
- The pregnant woman has the right to adopt; she does not need anyone’s acknowledgement or support if she’s above 18 years of age and is mentally stable.
- If a woman is married, her own written consent is sufficient. Her husband’s consent is not required.
- If a woman is unmarried and over 18 years of age, she can provide her own written consent.
- If a woman is unmarried and under 18, she must provide written consent from her guardian/parent.
- If a woman is mentally unstable, a written consent is required from her guardian/parent.
Laws governing abortion in India:
According to the IPC abortion falls under ‘Offences Affecting the Human Body’, and provides that causing a miscarriage with or without consent for a purpose other than saving the life of the woman is punishable.
However, the Medical Termination of Pregnancy Act (MTP Act) makes for a quantum difference in approach, as if by a legislative sleight through a non-obstante clause, by decriminalising abortion without bringing an amendment to the IPC or abrogating the penal provisions.
The Medical Termination of Pregnancy (MTP) Act in India came into existence in 1971. It was amended in 2003 to facilitate better implementation and increase access for women especially in the private health sector.
- Problems with the MTP Act:The MTP Act sets some limitations regarding the circumstances when abortion is permissible, the persons who are competent to perform the procedure, and the place where it could be performed. Outside the ring of protection that the Act draws, the IPC still operates.
- The MTP Act overrides the IPC by allowing a woman to get an abortion within the first 12 weeks of pregnancy, provided a registered medical practitioner diagnoses grave danger to the pregnant woman’s physical and mental health. If the foetus is between 12 and 20 weeks old, then the procedure requires permission from two medical practitioners. The Act also allows abortion if the foetus will be born with severe abnormalities.
- To determine the risk of physical and mental harm to a pregnant woman seeking abortion, the Act takes into account the woman’s actual as well as reasonably foreseeable environment.
- It also defines circumstances which can constitute grave injury to the mental health of a woman. The mentally grievous situations include pregnancy resulting from rape as well as contraceptive failure – of any contraception used by a married woman or her husband – if a married couple is attempting to limit their number of children.
- Abortion beyond 20 weeks is also legal if a registered medical practitioner, in good faith, thinks that emergency termination is necessary to save a pregnant woman’s life.
- The Act does not mention anything about a woman’s right to terminate a pregnancy beyond 20 weeks if there are foetal abnormalities.
- The Act as it currently stands also does not permit abortion solely on the request of a woman. One important reason for this is to prevent and reduce the instances of female foeticide in the country. However, it is important to analyse and study whether the law has had the desired impact on female foeticide, especially in light of the Pre-Natal Diagnostic Techniques (Regulation and Misuse) Act, 1994 which prohibits sex-selection and prescribes strict punishment for both – the party seeking prenatal sex determination as well as the medical practitioner conducting the test.
- The MTP Act also does not address any ethical issues, but in legal regimes that do not allow abortions, the moral standpoint is that medical termination of pregnancy results in the death of a living being.
A revision of the legal limit for abortion is long overdue. The process of rethinking the 44-year-old MTP law has already taken years, but the issues go beyond the slowness of the process. In the decades since the law was first enacted, the science on the subject has made enormous leaps — with the advent of ultrasound, magnetic resonance imaging (MRI) and foetal monitoring devices, predicting the health of the baby has become more accurate and sophisticated than anything that was conceivable then.
The draft Medical Termination of Pregnancy (Amendment) Bill, which was introduced by the government in 2014, provides for abortion beyond 20 weeks under defined conditions. The bill should seriously taken up for consideration by the government. As per the draft law, the decision to allow abortion between 20 and 24 weeks can be taken “in good faith” by a healthcare provider if, among other conditions, the pregnancy involves substantial risks to the mother or child, or if it is “alleged by the pregnant woman to have been caused by rape”.
The decision to terminate a pregnancy is never an easy or mechanical decision and it takes a severe toll on the affected parties, especially the woman. There is a need to strike a balance between the rights of women to control their bodies and the legitimate interests of the state to prevent selective sex determination as well as protect the interests of the woman and the unborn foetus. The draft amendments offer a definitive step in the right direction.