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The Right to Abortion in India

This article was submitted by Arohi Pathak from National Law Institute University, Bhopal for National Legal Writing Competition, 2016.

INTRODUCTION

The network of fundamental rights and human rights is not only intertwined but complicated. The debate on whether all human rights are fundamental is age old. Moreover, what constitutes as human rights is surprisingly subjective. Though it has been successfully established that the right to life and privacy is a fundamental right and, is essentially a human right as well, the discussions as to what right to life entails is vast and complicated and invites conflicting views, particularly in the context of Right to abortion or women’s reproductive choices which consequentially invites the pro-life and pro-choice debate.

The Indian Penal Code, 1860 declared induced abortion illegal under Section 312. The only exception was when abortion was induced in order to save the life of the woman.

In 1966, the Shah Committee, appointed by the government of India to study the sociocultural, medical and legal aspects of abortion in the country, submitted its report, which recommended the legalisation of abortion on compassionate and medical grounds[1]. This report was instrumental in shaping the 1971 MTP Act, which led to the liberalisation of abortion under specific circumstances. The recommendations made by the 1965 UN Mission to evaluate India’s population policy also shaped the Act[2].

The Medical Termination of Pregnancy (MTP) Act was enacted by the Indian Parliament in the year 1971 with the intention of reducing the incidence of illegal abortion and consequent maternal mortality and morbidity. The MTP Act came into effect on 1 April 1972 and was amended in the years 1975 and 2002.

Robert J. Barro in his article “Does abortion lower the crime rate” [3] propounds the theory of reduction in crime rates in the late 1990s in America after the ruling of Roe v. Wade[4]

This article aims to shed light on the following issues-

  • Analysis of The Medical Termination of Pregnancy Act,1971
  • Analysis of Draft Medical Termination of Pregnancy (Amendment) Bill, 2014
  • Comments on the proposed Amendment Bill

ANALYSIS OF THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971

The right to abortion or termination of pregnancy is a qualified right to be exercised according to the provisions of The Medical Termination of Pregnancy Act, 1971 (“The Act”). Section 3 lays down when the pregnancy may be terminated. Termination for the length of pregnancy not exceeding 12 weeks with the opinion of one medical practitioner and for the length of pregnancy not exceeding 20 weeks, the opinion of two medical practitioners in good faith that:

  1. Continuance of pregnancy would involve a risk to the life of the women or grave injury to her mental or physical health; or
  2. There is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Section 3 further provides for two explanations whereby Expl.1 says that anguish of pregnancy caused by rape constitutes as grave mental injury. Expl.2 says that in the event of failure of contraceptive devices used by married women fails, such anguish would also constitute a grave mental injury. The section further mandates the written consent of the guardian in the case of a woman who has not attained the age of eighteen years or of a mentally-ill woman.

Section 4 of The Act enlists the places where such pregnancy may be terminated. Section 5 provides for the termination regardless of the length when the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

The qualified right to termination of pregnancy is restricted only to 20 weeks. Any further termination has to be in order to save the life of the pregnant women. Such termination has to be done by a registered medical practitioner in good faith. Any other form of termination is punishable under The Indian Penal Code.

ANALYSIS OF PROPOSED DRAFT AMENDMENT BILL, 2014

On October 29, 2014, the Ministry of Health and Family Welfare released an Amendment draft. The proposed draft aims to bring about the following changes:

  • “Registered medical practitioner” to be replaced by “registered health care providers” which would include practitioners of Ayurveda, Unani, Siddha, Homeopathy and nurse or auxiliary nurse midwife.
  • Termination on request to be available until 12 weeks of pregnancy
  • Qualified termination till 24 weeks of pregnancy prescribed categories
  • Section 3 Expl.2 to include the term “any woman or her partner” replacing “married woman or her husband” to limit the number of children or to prevent pregnancy
  • Termination of pregnancy to be allowed at any time in cases of any of the substantial foetal abnormalities
  • Section 5A to protect the privacy of the woman not to disclose the name and particulars of woman seeking termination under this act

COMMENT ON THE PROPOSED DRAFT BILL

  • CONCERN ON INCLUSION OF “OTHER” THAN MEDICAL PRACTITIONERS

Dr Sudhir Naik, gynaecologist and president-elect of the Association of Medical Consultants (AMC), said, “The draft bill comes across as one of the most liberal abortion documents but we strongly oppose allowing midwives and ayurveds, homoeopathy to perform abortions.”[5]

The concern of the medical community on the inclusion of non-allopathic doctors and auxiliary nurses and midwives is valid. However, the bill proposes to include only trained and registered health care providers. With the alarming rate of illegal abortions by quacks and insufficient medical services in remote areas, this should be seen as a welcome move as it widens the scope where legal and safe abortion can be obtained. It widens the scope, thereby opening up more safe outlets to procure a legal and safe abortion and would prevent women from obtaining services from illegal and untrained quacks.

Though the provision is subject to misuse if not implemented properly, it is the responsibility of the executive to enforce sufficient checks and restrictions.

  • RELIEF TO RAPE VICTIMS

 The amendment seeks to extend the limit to 24 weeks to seek an abortion in rape cases which was a problem in the 1971 Act.

  • CLEAR INCLUSION OF UNMARRIED WOMAN

This amendment seeks to clarify the stand of the legislature with regard to premarital pregnancies. This intends to remove the confusion the 1971 Act had.

  • CASES OF FOETAL ABNORMALITIES

If the foetus is diagnosed with any of the listed foetal abnormalities, the woman may seek termination at any stage of pregnancy.  There are many abnormalities which can only be diagnosed at later stages of pregnancy, this provision seeks to remedy it.

AUTHOR’S SUGGESTIONS AND COMMENT

The current legislation on termination of pregnancy is inadequate, ambiguous and does not guarantee enough protection either to the pregnant woman or the unborn child. The aim of this article is not to invoke a pro-life and a pro-choice debate, instead to recognise the reproductive rights of the woman, her privacy and protection in cases of rape or any other form of unwanted pregnancy. The author agrees that the role of the State is that of parens patriae and it must protect the rights of the unborn. The right to life is a fundamental right which includes the right to privacy as well guaranteed under Article 21 of The Constitution of India. A reasonable restriction on the same will ensure the safety and privacy of woman while protecting the rights of the unborn.

Though the author feels that in rape cases, a pregnant woman should be allowed to terminate a pregnancy at any stage. In Ashaben v. State of Gujarat [6], the woman was denied termination as she was over 24 weeks pregnant. Though it was a rape case and she was held captive before she could seek termination, the provisions of the Act did not grant her any relief and the judge expressed his inability to grant a remedy.

The proposed amendment bill is a welcome and bold move to safeguard abortion rights of a woman if implemented in the right spirit and with sufficient protection and guidelines.

REFERENCES

[1] Ministry of Health and Family Planning, GoI. Report of the Shah Committee to study the question of legalisation of abortion. New Delhi: MoHFP; 1966.

[2]  Sehgal BP Singh. Women, birth control and the law. New Delhi: Deep and Deep Publishers; 1991. p 12.

[3] https://scholar.harvard.edu/barro/files/99_0927_crimerate_bw.pdf

[4] 410 U.S. 113 (1973)

[5] https://www.dnaindia.com/mumbai/report-doctors-slam-government-s-proposal-to-allow-midwives-homeopaths-to-conduct-abortion-2033073

[6] 2015(4)Crimes1(Guj.)

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