Introduction
Welcome to the official blog of the Law Offices of Kr. Vivek Tanwar Advocate and Associates, where we are dedicated to providing litigation support services for matters related to Abortion. In today’s blog post, we aim to shed light on the prevailing issues surrounding Abortion, the legal framework in place for their protection, and the steps we can take as a society to combat these acts. Join us as we explore this critical subject and empower you with the knowledge to protect your rights and safety.
Medical Termination of Pregnancy Act, 1971
The 1971 Act legalized abortion in India, aiming to protect women from legal consequences and counter the criminalization of miscarriages. It specified conditions for pregnancy termination, primarily related to the woman’s health or fetal defects. In 1964, there were proposals to legalize abortion for eugenic reasons, which weren’t adopted but offered context to the MTP Act’s origins. The Act’s implementation aimed at population control rather than solely women’s reproductive freedom. Legal challenges, like Suchita Srivastava v. Chandigarh Administration (2009), highlighted the undemocratic nature of such eugenic measures.
Medical Termination of Pregnancy (Amendment) Act, 2021: Abortion Legal Framework
In March 2021, the Medical Termination of Pregnancy (Amendment) Act, 2021, received Presidential Assent, amending the 1971 law. This amendment, while expanding access to abortion, maintains the requirement for specific circumstances determined by medical professionals or boards, rather than granting women an inherent right to choose abortion. The 1971 Medical Termination of Pregnancy Act, inspired by the UK’s Abortion Act of 1967, sought to provide a limited ‘right to abortion,’ but it has faced challenges and ambiguities due to its medico-legal approach, not keeping pace with medical advancements.
Abortion as a Human Right
Human rights, including the right to life, are protected by international agreements. While the right to abortion has been contentious, societal views have evolved, recognizing it as a human right in many countries. Reproductive rights are essential for women’s human rights and development, supported by individual rights to liberty and happiness. Every woman’s autonomy over her body underscores the significance of abortion as a human right.
Abortion Legality for Unmarried Females in India
Abortion rights for unmarried women in India have evolved. Initially, the MTP Act of 1971 allowed medical abortions up to 9 weeks and surgical abortions up to 20 weeks. The 2021 Amendment Act extended the abortion period, permitting one doctor’s advice for abortions within 20 weeks and two doctors’ advice for specific cases between 20 and 24 weeks. Unmarried Indian women have legal rights to medical abortion, with consent requirements based on age. Legal pregnancy termination is permitted in cases of rape, threats to physical or mental health, or potential infant defects due to failed contraception.
Challenges Faced by Unmarried Women
Challenges faced by unmarried women seeking abortion in India are rooted in societal norms stigmatizing premarital pregnancy. Recent legal cases have addressed the importance of considering mental health in abortion decisions. Legal rulings often rely on medical board recommendations, raising questions about women’s reproductive autonomy and the role of medical boards in assessing both physical and mental health for abortion decisions. Addressing these challenges requires comprehensive sex education, improved communication between children and parents, and educating male partners about responsible attitudes toward female reproductive health.
Case Laws:
Suchita Srivastava v. Chandigarh Administration (2009)
- Background: In this case, a mentally challenged woman became pregnant after the alleged rape in a government welfare centre. The High Court ordered pregnancy termination without her consent.
- Court Observations: The Supreme Court emphasized a woman’s right to make reproductive choices as part of personal liberty under Article 21 of the Indian Constitution. It recognized that reproductive rights encompass both having and not having a child. However, saving the life of the unborn child was considered a compelling state interest, allowing pregnancy termination only if legislative requirements were met. In this case, the victim was already beyond the 20-week limit, making the termination not in her best interest.
Tapasya Umesh Pisal v. Union of India & Ors (2017)
- Background: A petitioner sought termination of her pregnancy due to severe foetal defects. Her life was also at risk.
- Court Decision: The Supreme Court allowed the petitioner to undergo a medical termination of pregnancy, considering the risks to the mother’s life and the severe foetal defects.
Meera Santosh Pal v. Union of India (2017)
- Background: The petitioner sought to terminate her pregnancy due to an untreatable foetal condition that also endangered her life.
- Court Observations: The Supreme Court upheld the petitioner’s right to make an informed decision to protect her life under Article 21. The pregnancy could be terminated in the interest of justice.
Roshni v. State of M.P (2019)
- Background: The petitioner sought pregnancy termination because of foetal abnormalities. The doctor had refused to terminate it as the pregnancy was over 20 weeks.
- Court Proceedings: The High Court ordered a medical board evaluation and formed a committee to assess the pregnancy’s risk to the mother’s life. The decision depended on the committee’s findings.
X v. Principal Secretary, Health and Family Welfare, Govt of NCT Delhi
In a significant ruling in the case of X v. Principal Secretary, Health and Family Welfare Department, Govt of NCT of Delhi, the Supreme Court they have declared discrimination between married and unmarried women seeking abortions as unconstitutional. The judgment, delivered by Justice D.Y. Chandrachud, emphasized that all women have the right to safe and legal abortions.
Background: In this case, a 25-year-old unmarried woman approached the Delhi High Court seeking termination of her 23-week pregnancy resulting from a consensual relationship. However, the High Court denied her relief, citing that the Medical Termination of Pregnancy Rules (MTPR), 2003, did not apply to unmarried women in consensual relationships.
Key Issues and Ruling:
The core issue was whether excluding unmarried women under Rule 3B of MTPR was legitimate. The Supreme Court issued an interim order allowing the woman to terminate her pregnancy, subject to the judgment of an AIIMS Delhi-established medical board.
The Supreme Court bench found the Delhi High Court’s interpretation too narrow. It acknowledged the 2021 amendment that changed “husband” to “partner,” emphasizing the need for a purposeful understanding of the law in light of changing social norms. The MTP Act, initially focused on married women when adopted in 1971, needed to adapt to accommodate non-traditional family situations reflecting changing societal values.
With this ruling, the Supreme Court declared the exclusion of unmarried women who become pregnant through live-in relationships under Rule 3B of MTPR as unconstitutional. It asserted that extending the benefits of MTPR to married women alone would perpetuate the social stereotype that only married women engage in sexual activity. The court affirmed that unmarried women have equal rights to married women concerning reproductive autonomy.
Decision on 9. oct. 2023
The Supreme Court of India, in a landmark decision on October 9, 2023, permitted the medical termination of a 26-week pregnancy for a married woman. The court acknowledged the petitioner’s plea, citing mental and financial reasons, highlighting a woman’s right to make choices regarding her body, given her physical, psychological, mental, financial, and socioeconomic circumstances.
Justices Hima Kohli and BV Nagarathna recognized the petitioner’s autonomy and her inability to bear the responsibility of a third child due to post-partum depression and psychiatric treatment. The petitioner’s reliance on a contraceptive method that failed was noted, and the court referenced the Medical Termination of Pregnancy (MTP) Act, allowing termination if continuing the pregnancy would harm the woman’s mental health. The court granted the writ petition, directing the petitioner to AIIMS, New Delhi, for the procedure on October 10, 2023, emphasizing the importance of considering a woman’s well-being in late-term abortion requests.
Conclusion
the 1971 Medical Termination of Pregnancy Act aimed to legalize abortion in India, primarily for women’s protection and to decriminalize miscarriages. It outlined conditions for pregnancy termination based on a woman’s health or fetal defects. Proposals in 1964 to legalize abortion for eugenic reasons were considered but not adopted. The 2021 Medical Termination of Pregnancy (Amendment) Act expanded abortion access but retained specific circumstances for termination determined by medical professionals, not granting an inherent right to women. Inspired by the UK’s Abortion Act of 1967, it faced challenges and lagged behind medical advancements. Abortion is increasingly recognized as a human right, reflecting evolving societal views and the importance of reproductive rights for women’s overall well-being. Recent legal cases, like X v. Principal Secretary, underscore that all women, regardless of marital status, have the right to safe and legal abortions, reinforcing women’s reproductive autonomy and equal rights under Article 21 of the Indian Constitution.
We are a law firm in the name and style of Law Offices of Kr. Vivek Tanwar Advocate and Associates at Gurugram and Rewari. We are providing litigation support services for matters related to Abortion rights.