Introduction:
Abortion is the deliberate termination of a pregnancy, as defined by the Cambridge Dictionary. There are two primary methods for obtaining an abortion: medical abortion and surgical abortion. Medical abortion involves terminating the pregnancy using pills, while surgical abortion entails the direct removal of the fetus by methods such as vacuum aspiration and dilation and evacuation.
The laws governing abortion were established by most countries in the latter half of the twentieth century. India was among the pioneers in legalizing abortion. The Medical Termination of Pregnancy Act, enacted in 1971 (MTP Act), regulates abortion in India. This legislation was introduced to address the prevalence of illegal abortions, which posed a significant threat to maternal mortality rates. Additionally, it aimed to promote family planning and address population control issues. The Act has undergone amendments over time to enhance conditions related to pregnancy termination across various sections of society.
The Constitution of our country guarantees certain fundamental rights to all citizens. The “Right to life” under Article 21 of the Indian Constitution is one such fundamental right provided to every individual. This article has been interpreted by the judiciary in various contexts due to its broad scope. The right to abortion can also be considered as one of the fundamental rights encompassed under this provision.
In a democratic nation like India, individuals are afforded the rights and freedoms to make choices according to their own wishes. The right to abortion is not only a fundamental right but also a human right. Every woman should have the autonomy to make decisions for herself. The right to abortion is one such provision that grants women the freedom to exercise their choices and decisions regarding their pregnancies.
Laws Relating to Termination of Pregnancy:
Medical Termination of Pregnancy Act, 1971
In India, the principal legislation concerning pregnancy termination is the Medical Termination of Pregnancy Act, 1971, subsequently amended in 2021. Enacted with the aim of permitting lawful termination of pregnancies in specific circumstances as delineated by the Act, it allows registered medical practitioners to perform such terminations. The Act specifies the conditions under which a pregnancy may be terminated, prioritizing protection for the woman rather than the unborn child. Any protection afforded to the unborn child is incidental to the protection provided to the mother.
The amendments take into the account advancements in medical technology, streamline provider requirements, extend the upper gestational limit for pregnancy termination under certain conditions, and eliminate the gestational limit for cases that could strain the healthcare system. The objective is to enhance access to comprehensive abortion care while upholding the principles of dignity, autonomy, confidentiality, and justice for women in need of safe and high-quality services.
Key Provisions:
- Conditions for Abortion: The section 3 of the Act permits abortion up to 20 weeks of gestation, with the approval of one registered medical practitioner for pregnancies up to 12 weeks, and two for pregnancies between 12 to 20 weeks. However, abortion beyond 20 weeks is only allowed if it is necessary to save the life of the woman or to prevent grave injury to her physical or mental health.
- Authorized Medical Practitioners: The Act specifies that only registered medical practitioners who have adequate training and experience in gynecology and obstetrics can perform abortions.
- Places for Abortion: Abortion can be performed only in approved hospitals or clinics recognized under the Act. This ensures that the procedure is conducted in a safe and hygienic environment.
- Protection for Privacy: The Act emphasizes the confidentiality and privacy of the woman seeking abortion. Information regarding the abortion and the identity of the woman must not be disclosed without her consent, except as may be necessary for medical or legal reasons.
- Protection from Prosecution: The Act provides immunity to women from criminal prosecution for seeking abortion under the specified conditions. It also safeguards medical practitioners from legal action if the abortion is carried out in good faith and in accordance with the provisions of the Act.
Safeguards against Sex-Selective Abortions: The Act prohibits sex-selective abortions and mandates that the registered medical practitioner must ensure that the decision to abort is not based on the sex of the fetus.
Cases relating to abortion:
- K S Puttaswamy v. Union of India (2018)
In this instance, the Supreme Court explicitly recognized women’s fundamental right under Article 21 of the Constitution of India to make decisions regarding reproduction. Therefore, termination of pregnancy falls within the scope of ‘personal liberty’ as mentioned in Article 21 of the Constitution of India. Similarly, the Medical Termination Act of 1971 also acknowledges abortion as a qualified right.
- Suchita Shrivastava v. Chandigarh Administration (2009)
In this case, the Supreme Court recognized that women possess certain reproductive rights, including the right to give birth, raise children, and make decisions regarding pregnancy termination. These rights are integral to a woman’s privacy, integrity, and dignity, as guaranteed by the Indian Constitution.
If the fundamental right to terminate a pregnancy is infringed upon, a woman has the right to seek recourse through the judiciary. The Supreme Court interpreted the law, stating that termination of pregnancy beyond the third trimester, or after the 24th week, is generally prohibited as it may endanger both the mother and the child’s life. However, in exceptional circumstances, abortion may be permitted through a court decree. Such a decree is not solely at the discretion of the judges but is based on medical reports from the mother and recommendations from a medical board regarding the necessity of abortion. The Court also affirmed that women have ownership over their bodies, and this right cannot be transferred to their families or the government.
Internationally, medical termination of pregnancy is recognized as a significant human right. Even the United Nations International Conference on Population and Development has endorsed reproductive rights. These rights include access to contraceptive methods, the right to safe and legal abortion, freedom to choose reproductive options without coercion or discrimination, protection from harmful practices such as forced childbirth, and equal access to sexual and reproductive healthcare services for LGBTQIA+ individuals. Internationally, medical termination of pregnancy is recognized as a significant human right. Even the United Nations International Conference on Population and Development has endorsed reproductive rights. These rights include access to contraceptive methods, the right to safe and legal abortion, freedom to choose reproductive options without coercion or discrimination, protection from harmful practices such as forced childbirth, and equal access to sexual and reproductive healthcare services for LGBTQIA+ individuals.
Conclusion:
The Medical Termination of Pregnancy Act, 2021 offers hope to women seeking safe abortions and those wishing to terminate unplanned pregnancies lawfully. However, India still has a long way to go in reducing and ultimately eliminating illegal abortions. It is imperative for the government to ensure that all healthcare facilities, including hospitals, adhere to professional standards and regulations nationwide to facilitate safe pregnancy terminations.
Moreover, the issue of pregnancy termination must be addressed in accordance with human rights, sound scientific principles, and technological advancements. The success or failure of the Medical Termination of Pregnancy Act, 2021 hinges on the methods and procedures adopted to implement its provisions. Strict adherence to these recommendations is crucial to benefit women seeking abortions, provided they are carried out with the necessary diligence and care.
On the other hand, with the enactment of the Amendment Act, more women will have increased access to safer pregnancy termination services, ensuring that those in need of ending a pregnancy are treated with dignity, freedom, privacy, and fairness. While it is commendable that the Central Government has taken a bold stance while considering the cultural diversity, belief systems, and conceptual frameworks of our nation, the amendment still imposes several conditions that serve as barriers to accessing safe pregnancy termination.
Arisha Qureshi (Legal Intern)