Posted on: October 6, 2020 Posted by: Trishla Jain Comments: 0
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They say, ‘A woman is not complete until she has experienced motherhood’. But what exactly is motherhood? According to me, motherhood is an emotion that makes one so powerful to be able to bestow selfless and unconditional love on another person. That person need not necessarily be a piece of your flesh and blood. They can be a homeless needy on the road, an orphan, your grandparent and anyone you feel that emotion for.

This article aims at explaining the ground reality of India’s abortion laws. It is fairly dedicated to the pregnancy as well as abortion rights Indian women possess and the right that should be given to them along with the relief that is upheld by MTP Amendment Bill,2020.

INTRODUCTION:

I won’t mention the word ‘woman’ here in light of the fact that we have single dads in this world who have proved to be no less a mother to their child than a woman would be. Having said this, our society is still not ready to acknowledge a woman if she chooses to not have her child. On one hand, we talk about women’s rights and on the other they’re protesting to free abortion because it is still not legalised. Abortion is still a social stigma here and the pressures thrust on the women who think of having an abortion is unacceptable. But certainly, the law for abortion in our country has become more progressive and humane than it was until 1971 when abortion was condemned under Section 312 of the Indian Penal Code, 1860, portraying it as intentionally “causing miscarriage”.

India being a land of theism and spirituality, it still considers abortion as a taboo. Critically analysing the circumstances underneath that abortion comes into play, the person is conflicted between two choices, essentially Pro-Choice v. Pro-life. According to an individual who is Pro-Choice, everyone has the fundamental right to decide when and whether or not to have children. Such medical procedures ought to be legally approved and medically safe. It re-establishes the fact that welfare of women is additionally important where there are unintended pregnancies and also the health of the unborn child and mother, both are in question.  Someone who is Pro-Life opposes the concept of abortion. They believe that all humans, including unborn, have a right to live and are less stressed regarding the life of a woman who has unintended pregnancy or welfare of an infant after it is conceived.

BACKGROUND:

After the Roe v. Wade case, where it was held that the pregnant woman has a privilege to decide to have an abortion without unnecessary government intervention, European and American countries began to legalise abortion. The Indian Penal Code made induced abortions (when a pregnancy is terminated by intervention using medical or surgeries) illegal, in this way making India among 14 other countries where abortion is led on a broad scale of socio-economic circumstances instead of abortion on request. However, by monitoring the situation in place, ‘Shanti Lal Shah Committee’, was appointed by the government in 1964, and an abortion law for India was drafted to curb the spurt in the maternal mortality rate taking place in the country. In 1971, the Medical Termination of Pregnancy Act, 1971(MTP Act) was enacted, creating an exception to the offence of abortion under the Indian Penal Code, 1860, making induced abortion legal in certain circumstances and accordingly, preventing wastage of women’s health and lives on both compassionate and medical grounds.

LEGAL FRAMEWORK FOR ABORTIONS IN INDIA:

Article 21 of our Constitution guarantees the right to life and personal liberty to all the citizens in India. According to this, if a woman is denied right over her own body then it is a violation of her fundamental right as the unborn is a part of the mother. The motherhood that is guaranteed cannot be so shallow as to ignore a mother’s right to let go of her body part, to protect the child.

The MTP Act, 1971 is the sole legislation governing induced abortions in India. The act regulates three elements of termination of pregnancy, specifically; when, by whom and where pregnancies can they be terminated. It says:

  • MTP Act is effective in all parts of the country except Jammu and Kashmir according to section 1 of this act. It follows strict guidelines to permit abortions.
  • According to section 3 of the present act, pregnancies can be terminated within the initial 3 months, provided there’s an assent of 1 registered specialist. But, if the duration of pregnancy is beyond the gestation of twenty weeks, the approval of a minimum of 2 medical specialists is required.
  • The termination is then approved solely if:
    1. the continuance of the pregnancy would risk the life of the pregnant woman, or
    2. it would affect the woman’s physical/emotional wellness, just in case the pregnancy is caused because of the failure of contraception or from an act of sexual harassment, or
    3. the child was born, it would experience an ill effect of physical or mental irregularities as to be seriously handicapped.
  • In deciding the injury caused to a woman, the Act considers the real and predictable environment of the woman.
  • The assent of the pregnant woman is needed for termination of pregnancy and if a woman is below 18 years or above 18 years but mentally ill, the consent of a guardian in writing is required.
  • It details the place where the pregnancies are often terminated like a government hospital, or a spot permitted by the government or a district-level committee by the government for the needs of the Act in section 4.
  • It permits a registered medical practitioner immediate termination if it is necessary to save the life of a woman and is done in a “good faith” under section 5.
  • It deals with numerous aspects like place, time and circumstances in which termination may be done by a registered medical practitioner.

CASES:

  • The first major amendment to the MTP Act 1971, came in view of Nikita Mehta’s case, who filed a petition to abort her unborn child suffering from heart defect which was detected in 22nd week of the pregnancy but the court did not accept the plea and eventually, Nikita Mehta had miscarriage and lost her foetus. But in the light of this case, consequently, after six years, the Union Health Ministry drafted the Medical Termination of Pregnancy Act, Amendment Bill, 2014 that aimed at allowing abortions after 20 weeks under special circumstances and the length of the pregnancy would not be considered in the decision regarding the abortion of foetus diagnosed with “substantial foetal abnormalities as may be prescribed.”
  • In the case of Vaishali Pramod Sonawane v. Union of India, a request was petitioned for the termination of pregnancy because of the realisation of foetal anomalies within the twenty-fourth week. It was stated that the continuation of the pregnancy would involve considerable risk to the foetus to the extent of being handicapped. The Bombay High court inferred that even though the sub-section (2) of Section 3 of the MTP Act, 1971 put a cap of 20 weeks for allowing the pregnant woman  to terminate the pregnancy, in view of section 5, it would be logical to consider the request of a pregnant woman seeking permission to terminate the pregnancy beyond 20 weeks in case of fetal anomalies.
  • The MTP Act of 1971 also distinguishes mental illness from mental retardation. It states that in case of mental illness, the guardian’s consent is needed for termination of pregnancy. However, in the case of mental retardation, the woman can give her consent if she is capable of doing so. For instance, in the case of Suchita Srivastava v. Chandigarh administration, a woman of Chandigarh Nari Niketan had become pregnant due to rape. The Chandigarh administration moved to the court for termination of pregnancy. The court confirmed the woman’s condition that she was mentally retarded, an orphan, but was capable of continuing the pregnancy, moreover, she did not give any consent for termination. Hence, keeping in view the state’s compelling interest in protecting the life of the prospective child, the Supreme Court consented to carry on the pregnancy.

CURRENT LAW AND POLICY: WHAT IS STILL MISSING?

MTP Act was however misused and sex-selective operations started taking place as the use of ultrasound to see the well-being of the foetus and to identify any danger to the lives of mother and child, the sex of the foetus was also determined. The increase in the number of ultrasound clinics and the absence of proper regulation resulted in the increase of abortion of a female child, ultimately declined the sex ratio. To address this issue the Pre-Conception and Pre-Natal Diagnostics (PCPNDT) Act was introduced to stop the unlawful use of the ultrasound machine to determine sex and close illegal clinics.

The law is physician-centric and over medicalizes abortion. It denies a pregnant woman her right to bodily and decisional autonomy, i.e., her right to decide whether or not to have a child and the decision to abort is taken by the specialist, ignoring the fact that a woman will settle on a better decision and will comprehend the situation in a more appropriate way than the legislation as it is a part of her body. But, the MTP Act gives the authority to the healthcare providers rather than to the women themselves, subsequently making them dependent on their healthcare providers. Therefore, the MTP Act should be implemented and the scope of its provisions should be broader.

On 17th March, a new set of amendments was passed by the Lok Sabha of the Indian Parliament -MTP Amendment Bill 2020, to nearly five-decades-old law. The bill requires further approval in the ensuing session of the Parliament to form a revised Act. The question that remains unanswered however is that do Indian women have the autonomy to make reproductive choices without social and State interventions?

The bill proposes certain amendments like:

  • The bill increases the legal time limit within which abortion may be carried out.
  • It allows abortion at 24 weeks and beyond if:
    1. They are rape survivors
    2. The woman is differently-abled
    3. The woman is a minor as per the Indian Majority Act of 1875
    4. Abnormalities in the foetus have been detected during the 24 weeks
  • It provides for the constitution of a Medical Board consisting of medical experts such as gynaecologist, sonologist and radiologist, that will examine the need for the termination of pregnancy beyond 24 weeks.

The MTP Amendment Bill 2020 additionally articulates the necessity to guarantee “dignity, autonomy, confidentiality and justice for women who need to terminate the pregnancy”. However, the extension is applied solely to the vulnerable women and the amendments do not translate into an actual shift in power from the doctor to the person seeking an abortion, thus, rendering abortion as a conditional provision and not an absolute right. Sadly, this Bill fails to live up to the prevailing reproductive rights jurisprudence developed by the Supreme Court of India and also the fundamental rights to autonomy, bodily integrity, and privacy.

CONCLUSION:

Abortion, from the oldest of days, is one topic that raises disputes because as we all know it decides the fate of human life. The policies and regulations in our country make it difficult for women to undergo abortion in a safe environment under proper care. Some lack the knowledge and some are too poor to undergo these procedures leading to an increase in maternal mortality rate and life-long health consequences. The social trauma borne by a woman who is willing to abort her child because of some reason or the other is tremendous which highlights the fact that there is a lack of right to choose the circumstances they want to live their life by. The landmark judgement of Suchita Srivastava & Another V. Chandigarh Administration case stated that it is the right of the women to decide her circumstance, to decide whether to undergo an abortion and to make the reproductive choice all of which falls under Personal Liberty under Article 21. As rightly said by Margaret Sanger, the freedom of a woman is decided based on whether she has a choice to be or not be a mother. It is evident by the fact of numbers which states the number of unsafe abortions that India has still a long way to go to fight this denial of a basic right and stop considering sexuality a taboo. The lack of awareness and proper education makes abortion a difficult topic to talk about freely in India the importance of which is also emphasized by WHO. Considering the present situation wherein the freedom of women regarding abortion shows how conservative the society is, there is a requirement of changes in the laws regarding abortion to make it more progressive and reach out to women in different sections and areas of the country so that safe abortion services are available under proper regulations and professional medical observation. There is a lot to be done to change the state of affairs regarding Abortion, to bring this Fundamental Human Right deep down into the masses, so there are less fear and more openness in the society.

Trishla Jain
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Student Of Amity University, Kolkata,

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