What is India’s Law on Abortion?
What is India’s Law on Abortion?
GS-2: Polity and Governance
(IAS/UPPCS)
Relevant for Prelims:
What is India’s Law on Abortion?
1971: The MTP Act
MTP Amendment Act, 2021
Relevant for Mains:
What After 24 Weeks of Pregnancy?
Has the Court Allowed Termination Beyond this Period?
Why is the Test of ‘Foetal Viability’ Criticized in India?
What are the Legislative Gaps in the MTP Act?
Recent Supreme Court judgments on Abortion
SC Ruling in 2022
Challenges
Conclusion
23/04/2024
Why in the news?
In a very exceptional case, the Supreme Court has allowed a 14-year-old victim of sexual assault to terminate her almost 30-week pregnancy.
What is India’s Law on Abortion?
- The Medical Termination of Pregnancy Act (MTP Act), first enacted in 1971 and amended in 2021, allows termination of pregnancy.
➡It allows abortion up to 20 weeks, on the advice of a doctor.
- In case of a pregnancy of 20-24 weeks, abortion is allowed as an exception (under seven specified categories [minors or sexual assault; women with disabilities; etc]), after two registered medical practitioners have evaluated the right to seek termination.
1971: The MTP Act
- The recommendations of the Shah Committee led to the creation of the Medical Termination of Pregnancy Act, 1971.
- The Act specified conditions under which abortion was allowed, including risk to the woman's life or physical and mental health, fetal abnormalities, rape, or contraceptive failure.
- Abortions were limited to 20 weeks, and only registered medical practitioners could perform them.
- The Act marked a departure from criminalization, offering a legal framework for safe abortions.
MTP Amendment Act, 2021
- In 2021, the MTP Amendment Act was passed, bringing substantial changes to India's abortion laws.
Key amendments include:
- Removing the requirement for women to be married to seek abortion on grounds of contraceptive failure.
- Extending the gestational limit for certain special categories of women to 24 weeks.
- Mandating the constitution of Medical Boards in all states and union territories to diagnose substantial fetal anomalies.
- Ensuring confidentiality of women's abortion records.
What After 24 Weeks of Pregnancy?
- The law requires that a medical board be set up in “approved facilities”, which may “allow or deny termination of pregnancy” only if there is substantial foetal abnormality, checked through the test of “foetal viability” (the time after which a foetus can survive outside the womb).
Has the Court Allowed Termination Beyond this Period?
Yes, it has, in certain cases. For example, in the recent case, SC noted that the continuation of the pregnancy against the will of the minor may impact negatively on the physical and mental well-being of a minor who is barely 14 years old.
Why is the Test of ‘Foetal Viability’ Criticized in India?
The test of “foetal viability” as a benchmark to allow abortion is new in India. It was pegged at 28 weeks/ 7 months (by the US Supreme Court in 1973), which is now with scientific advancement lower at 23-24 weeks (6 months). Therefore, it has been argued that foetal viability is an arbitrary standard.
What are the Legislative Gaps in the MTP Act?
The decision to terminate after 20 weeks is shifted to doctors (not the woman)and women approaching the court at the eleventh-hour point to a legislative gap. Also, the law tilts more to the side of the woman’s autonomy than towards the rights of the unborn child.
Recent Supreme Court judgments on Abortion
- The 2021 amendments reflected a progressive legislative outlook, seeking to remove a raft of anomalies and maladies of the old law. The amendments unequivocally increased the time-period within which an abortion can be legally conducted and also brought to its fold women outside marital relationship, extending the right to reproductive care.
- The Supreme Court, in Suchita Srivastava and Anr Vs Chandigarh administration (2009), asserted that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’, as understood under Article 21 of the Constitution of India.
○“It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected,” it held.
- In Z Vs State of Bihar (2018), the top court recognised the disastrous effects of unnecessary delays and lack of promptitude in the attitude of authorities when dealing with termination of pregnancies, as it rebuked the “negligence and carelessness” of the authorities in failing to terminate the pregnancy as permitted by law.
- In X Vs Union of India and Meera Santosh Pal Vs Union of India (both in 2017), Mamta Verma Vs Union of India and Sarmishtha Chakrabortty Vs Union of India (both in 2018), the Supreme Court permitted the termination of post 20-week pregnancies after acknowledging the risk of grave injury to the mental health of a pregnant woman by carrying the pregnancy to term.
- Expanding the scope of the MTP Act, the top court in Shaikh Ayesha Khatoon Vs Union of India (2017) and Vaishali Pramod Sonawane & Another Vs Union of India (2019), ruled that a pregnancy can be terminated after 20 weeks also in situations when there is a substantial risk, if the child is born, it would suffer from such physical and mental abnormalities as to be seriously handicapped.
SC Ruling in 2022
- The Supreme Court of India made significant findings in its September 2022 decision, which emphasized women's right to bodily autonomy, sexual and reproductive choice, and addressed several key issues related to access to safe and legal abortion:
- Expanding the Definition of "Woman": The ruling expanded the definition of "woman" to include not only cisgender women but also transpersons and other gender-diverse individuals who require access to safe abortion services. This is a crucial step in recognizing the diverse identities and needs of individuals seeking abortion.
- Elimination of Extra-Legal Conditions: The Court noted the common practice of medical practitioners insisting on extra-legal conditions such as obtaining family consent, producing documentary proofs, or judicial authorization for abortion seekers. The Court criticized this practice and stated that only the woman's consent is material for the abortion, unless she is a minor or mentally ill. It emphasized that a pregnant woman is the ultimate decision-maker regarding whether she wants to undergo an abortion.
- Equal Gestation Period for All Women: The ruling addressed the distinction in the gestation period considered legal for married and unmarried women, extending the limit for unmarried women from 20 to 24 weeks. The Court deemed this distinction discriminatory and in violation of Article 14 of the Constitution of India, emphasizing that all women, regardless of marital status, are entitled to the benefit of safe and legal abortion.
- Abortion for Survivors of Sexual Assault or Rape: The Court ruled that pregnancies resulting from marital rape can be terminated in the gestation period of 20 to 24 weeks under the category of "survivors of sexual assault or rape." This decision recognizes the unique circumstances faced by women in such situations and ensures their access to safe abortion services.
Impact on Single Women:
- This decision has far-reaching implications, especially for the approximately 73 million single women who were previously denied legal and safe access to abortions beyond 20 weeks.
- Unsafe abortions have led to significant mortality rates among women, with nearly 67% of abortions in India considered unsafe, resulting in eight women's deaths daily.
Challenges Remain:
- While the Supreme Court's decision is progressive, it is only the first step toward achieving full reproductive and bodily autonomy for all.
- The law continues to exclude transgender, non-binary, and gender diverse individuals who can become pregnant and need access to safe abortions.
Conclusion
- India's abortion laws have evolved from criminalization to a legal framework that gives women greater access to safe abortions.
- The amendments reflect ongoing efforts to expand reproductive rights and ensure women's access to safe abortions.
- The recent SC judgment is commendable, especially in the context of global debates on sexual and reproductive rights.
- It signifies progress and underscores the nation's determination to recognize women's rights.
- Still, work needs to be done to ensure inclusiveness, awareness and the realization of full reproductive autonomy for all individuals, regardless of their gender or marital status.
Source: IE