INTRODUCTION
Women’s rights are crucial for their existence, freedom, safety, well-being, self-governance, and education. Reproductive rights, derived from a well-established human rights framework, include autonomy over bodies, sexual choices, access to health resources, and avoiding violence. Reproductive rights are a crucial part of women’s rights, through which informed decisions can be made regarding their lives, especially the birth and delivery timing of a child. But these rights often get violated by the abortion laws, especially minorities, young, and marginalised group suffers. Women are so much indulged in society as being sustainers of life she has to shed their responsibilities in society when it comes to power over their bodies. Abortion, a term not defined in Indian Law, is considered an imperative part of reproductive rights, as interpreted by the Supreme Court. This blog explores the growth of abortion laws in India and ongoing challenges.
Historical development of Abortion laws in India:
Abortion is a divisive issue globally, with discussions that delve between the rights of a mother to terminate her pregnancy versus the rights of an unborn child to life. The Indian Constitution recognises the right to life, although the status of an unborn child is challenged. Ronald Dworkin, a noted psychologist, stated that a fetus’s interest in life relies on whether it has interests, not if it will develop without abortion. In India before 1971, abortion rights were not acknowledged as under section 312 -316 Indian Penal Code, 1860 it was criminalized. Section 312 of IPC 1860 criminalizes abortion, allowing it solely on medical grounds to protect the life of the mother. The code does not define abortion, miscarriage, or unborn child, yet voluntary causing miscarriage is considered unlawful abortion. The violation happens when a female is “with child” or “quick with child.” For the last few years, India has developed some liberal concepts regarding abortion laws and developed the MTP (Medical Termination of Pregnancy Act in 1971) on the recommendation of the Shah Committee this act was enacted in 2021 through amendment and has been news for several times.
Medical Termination of Pregnancy Act, 1971:
The Medical Termination of Pregnancy Act 1971, is an exception to IPC that penalises abortion. It authorizes termination of pregnancy under a (RMP) Registered Medical Practitioner on specified conditions. The Act needs one medical practitioner’s clearance for termination until the first 12 weeks and authorization from two for 12-20 weeks. Abortion is granted up to 20 weeks, intending to eliminate gender prediction testing and sex-selective abortions. The Act also enables termination under certain conditions, like substantial threats to the life of the mother, abnormalities to fetuses, failure of birth control measures, or rape-related pregnancy. However, courts have sometimes delivered negative rulings notwithstanding the family’s wish for abortion. In X v. Principal Secretary. Health and Family Welfare Department The Supreme Court has ruled that unmarried women, including transgender and gender-variant individuals, have the right to autonomy over reproductive decisions. This court also criticized the Medical Termination Protocol Act for being provider-centric and not focusing on pregnant women’s rights.
Key provisions of the MTP Act 1971:
The MTP Act 1971 allows pregnancies to be terminated by a qualified medical practitioner and contains strict conditions for abortions. Amendments were made in 2002 and 2021, abortions are permitted up to 20 weeks of pregnancy; after that, they can only be conducted if it creates a threat to the life of a woman or substantial impairment to her bodily or mental health. “Lunatics” or juvenile pregnancies are also covered by the act, where the agreement of a guardian is regarded as valid. Section 3 enables termination of pregnancy when the gestation period is before 20 weeks, or if it goes over twenty weeks but stays under twenty-four weeks, and causes serious damage to the life of a woman. The Act also establishes constraints on termination, including the woman’s written agreement and medical practitioner’s follow-up measures.
MTP Amendment Act, 2021:
In March 2020, the MTP Amendments Act (2021) was passed improving the previous act and permitting abortions for unmarried women based on contraceptive failure. The statute expanded the time restriction for abortions from twenty weeks to twenty-four weeks, protecting privacy for women and allowing medical institutes only to divulge abortion facts to authorized persons. It is more inclusive for rape survivors, victims of incest, differently-abled, and minors. The law currently authorizes one doctor for abortion within 20 weeks and two doctors between 20 to 24 weeks. A medical board will determine if a woman demands an abortion after 24 weeks. The MTP Act, primarily created for married women, has developed to address broader reproductive challenges. This liberalization eliminates marital status as a criterion.
MTP ACT 1971 AND MTP AMENDMENT ACT 2021: A COMPARISON
image source: https://www.drishtiias.com/daily-updates/daily-news-analysis/abortion-9
CASE LAWS REGARDING ABORTION AND REPRODUCTIVE RIGHTS IN INDIA:
- Suchita Srivastava & Anr vs Chandigarh Administration: The Delhi High Court decided under Article 21 of the Constitution of India that a woman’s right to make reproductive choices is considered under the scope of personal liberty. Pregnant women who are disabled cannot be forced to have an abortion said to the court.
In this case, Laxmi Mandal was the first to maintain that there is a human rights violation with maternal mortality. A mother’s right to procreate has been considered an indispensable part of Article 21.
- In X v Union of India: here, due to lactational amenorrhea, a 27-year-old married under the Medical Termination of Pregnancy Act, 1971 a woman sought. Despite initial denial, she sought access to necessary healthcare from the Supreme Court. The court placed fetal viability and unborn child rights over reproductive autonomy. The court found she was not eligible for Section 5 protections allow for the termination of a pregnancy to preserve the woman’s life, while Section 3(2B) protections encompass survivors of sexual assault, juveniles, widowed or separated individuals, disabled individuals, mentally ill individuals, fetal deviation, and pregnancy during emergencies.
Challenges To Abortion laws:
Abortion has both beneficial and negative repercussions for society, with the MTP Act in India lowering suicide rates and increasing health for women. However, implementation challenges exist, especially in rural regions. Ethical arguments persist, with the Supreme Court defining abortion without the husband’s consent as mental cruelty. This has fueled tension in marital relationships and raised concerns about women’s autonomy over their reproductive rights. Adolescents suffer terrible prospects, health concerns, inadequate prenatal care, and societal shame, which they say is against civil rights. Disparities in implementation still exist, nevertheless, especially in rural areas with fewer healthcare facilities. Many women find it difficult to get the healthcare services and licensed medical personnel that the Act requires, particularly in undeveloped areas. Consequently, unsafe abortions persist, resulting in significant health hazards like infertility, monthly abnormalities, and pelvic inflammatory illnesses. The medical boards often delay decisions, creating barriers for women seeking time-sensitive procedures.
CONCLUSION:
From criminalization to the liberalization of abortion legislation, the abovementioned progression in India stands out only as one example of triggering a cumulative realization of these rights. While recent amendments have been hailed as an advance move to encourage diversity and accessibility, barriers persist. Addressing the social stigma surrounding abortion can be achieved by launching nationwide awareness campaigns and providing mental health support for women undergoing the procedure. Simplifying medical board processes can help expedite approval processes for abortions. By amending the Medical Termination of Pregnancy Act women can be given full autonomy over reproductive decisions and ensure comprehensive access to safe abortion services for all women, regardless of their socio-economic status. A collaborative approach is needed between the government, healthcare professionals, and civil society to address these challenges, including better access to trained medical professionals, streamlining medical board processes, addressing societal stigma, and ensuring ethical clarity regarding women’s reproductive rights.
Author(s) Name: Shalini Dhyani (Vasudev College of Law, Kumaun University Nainital)
