Abortion law in India

 

Before 1960 abortion was a punishable crime in India. A woman could face 3 years of imprisonment or a fine under section 312 of the Indian Penal Code. In the middle of the 1960s, the government of India looked forward to this matter of abortion and set up a committee called Shantilal Shah Committee which was headed by Dr Shantilal Shah. The Government of India asked the committee to survey and provide sufficient data to the government on whether India needed an abortion law or not?

In August 1971, based on the Shantilal Shah Committee’s report Government introduce the Medical termination Bill in Lok Sabha and Rajya Sabha which was passed by Parliament. In 1972 1^stApril Medical Termination of Pregnancy (MTP)Act 1971 came into force with applicability all over India except in the state of Jammu and Kashmir.

 

What is the Medical Termination Of Pregnancy (MTP) Act 1971?

 

In short Medical Termination of Pregnancy (MTP), Act 1971 allowed pregnancy termination by a medical practitioner in two stages,

·      A single doctor's opinion is required for abortion up to 12 weeks after conception,

·      Opinion of 2 doctors is required for pregnancy between 12 weeks to 20 weeks,

To determine if the continuity of pregnancy involves risk to the life of the pregnant woman or risk to the injury of her mental and physical health.

Also to determine the substantial risk that if the child were born the pregnant woman should not suffer such physical or mental abnormalities resulting as serious “Handicapped” if these substantial tendencies are positive then only termination of the woman’s pregnancy will be agreed upon.

Medical Termination of Pregnancy (MTP) Act Amendment 2021

 

Under this amendment, the pregnancy can be terminated up to 20 weeks by a married woman in case of failure of contraceptive method it also allowed the unmarried woman to terminate the pregnancy for the same reason.

Opinion needed for termination of pregnancy:-

·      One RMP (Registered Medical Practitioner) opinion is mandatory for termination of pregnancy up to 20 weeks of gestation.

·      Two RMP's opinion is mandatory for termination of pregnancy of 20 to 24 weeks of gestation.

Medical Board opinion is needed for termination of pregnancy after 24 weeks of gestation in case of substantial foetal abnormalities.

For pregnancies between 20 to 24 weeks of gestation, there is a rule which specified only seven categories of women would be eligible for seeking the termination of pregnancy under section 3B of rules prescribed under the Medical Termination of Pregnancy (MTP) Act. The seven categories are following:

Ø Minors,

Ø Saviours of sexual assault or rape or incest,

Ø Mentally ill women including mental retardation,

Ø Women with physical disabilities (Major disabilities under Rights of Persons with Disabilities Act 2016)

Ø Change in marital status during pregnancy (Widow and Divorce)

Ø The foetal malformation that has a substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped,

Ø Women with pregnancy in humanitarian settings or disasters or emergencies may be declared by the Government.

 

	MTP Act 1971	MTP Act 2021
Contraceptive Failure	Only applies to a married woman.	Applied to an unmarried women also.
Gestation age limit	20 weeks for all indication	24 weeks for rape saviours and beyond 24 weeks for substantial fetal abnormalities
RMP opinion needed	One RMP till 12 weeks Two RMPs till 20 weeks	One RMP till 20 weeks Two RMPs between 20 to 24 weeks Beyond 24 weeks Medical Board approval needed
Breach of woman’s confidentiality	Fine up to rupees 1000	Fine and or Imprisonment up to 1 year

 

Delhi High Court Judgement:-

 

The petitioner, a woman aged about 25 years old just completed 24 weeks of gestation in July. She told before the Hon’ble Judge that she was in a consensual relationship with her partner and her partner refused to marry her. She is worried and stressed that giving birth to this child would cause her psychological agony as well as social stigma. She is not in that mental position for ready to be a mother.

The Delhi High Court denies allowing for termination of pregnancy of an unmarried woman at 23 weeks of gestation on the ground of it is not permitted under Abortion Law after 20 weeks for pregnancy causing out of a consensual relationship.

A bench of the Delhi High Court’s Chief Justice Satish Chandra Sharma and Justice Subramanium Prasad during the hearing said –

“ The Petitioner who is an unmarried woman and whose pregnancy arises out of a consensual relationship is clearly not covered under any of the clauses under the Medical Termination of Pregnancy Act, 2003 the noted in its order dated July 15”

The Court further said

“As of today rule 3B of Medical Termination of Pregnancy Act Rules, 2003 stands, and this court, while exercising its power under article 226 of Constitution Of India,1950 cannot go beyond the status”

So, the Court rejected the plea by observing it virtual amounts to killing the foetus. The Hon’ble Court furthermore said that

“ We will ensure that the girl is kept somewhere safe and she can deliver and go. There is a big queue for adoption”

Supreme Court’s Judgement:-

 

After Delhi High Court denied the facts of the case, on 21 July Hon’ble Supreme Court passed an ad-interim order prima facie watching the facts that pregnancy termination can’t be denied just because the woman is unmarried. A Bench comprising Hon’ble Justices D.Y. Chandrachud and Justice J.B. Pardiwala and the date was fixed on August 10^th.

Hon’ble Justice Chandrachud was of the opinion that

"I was thinking if we strike down words 'for the purpose of clause (a)'' from Explanation 1, then the benefit of termination on the grounds of mental anguish would be applicable to all. Then the explanation will apply to Section 3(2)(b) also. Then Rules will not be restrictive. That is the only way to get around this.”

He stated that under section 3(2)(B) pregnancy between the gestation of 20 to 24 weeks can be terminated if two RMP opinions that the continuance of the pregnancy would involve the risk to the life of the pregnant woman or it is an injury to her physical or mental health. He observed that there is no reasonable distinction between a married woman and an unmarried woman because the life risk would be the same for both of them.

The Hon’ble Justice also stated that

"So, what does the legislature intend? It does not just use the word 'husband'. It used the word 'partner'. The legislation is not only concerned about people who have undergone pregnancy within marriage but outside marriage. In that case, if an unmarried girl who is a major suffers an unwarranted pregnancy, why should she be excluded from termination if a married woman is allowed…The danger to life is as much for a married girl as for an unmarried girl. In that case, there is no logical differentiation”

The Apex Court considered the petition of the 25 years old unmarried woman which said relief was denied by the Hon’ble Delhi High Court. The Apex Court granted the petitioner the following reliefs

§  The court address the director of AIIMS Delhi to set up a medical board as said to the provision of section 3 (2)(d) of the Medical Termination of Pregnancy Act during the order of July 21.

§  The medical board must conclude that the pregnancy termination can be done without any life risk to the petitioner.

§  AIIMS Delhi has to terminate the pregnancy as per the order of the Apex Court. And the medical report shall be submitted to the court after completion of all procedures.

Conclusion:-

In India, abortion has not been decriminalised till now even after approximately 50 years of the Medical Termination of Pregnancy Act. Till now it is a social stigma for a woman who wants to do an abortion. In our Medical Termination of Pregnancy (MTP) Act provisions are more about the procedure of abortion than the protection of that particular woman. There are no such provisions which protect women's rights, “The Rights to Abortion”.

Our MTP Act is more concerned with medical procedures and medical practitioners. There are no such provisions that a woman can terminate her abortion after 24 weeks of gestation. She has to go through a long procedure to writ a petition. If this law is called Abortion Law then it has to be more specific about the protection of the rights of the woman as well as the procedural provisions.

Everyone praises the Supreme Court for its historical judgement for changing the word “Husband” to “Partner” for allowing the abortion of unmarried women. But till now there are no such provisions for that the abortion can be done by whom? Obviously, this termination of pregnancy is not a simple process, during this process, there is a certain percentage of chances of losing the life of the pregnant woman so it must be done by an experienced doctor or experienced Gynecologist. But in our country, there is a lack of 75% of medical practitioners.

In India approximately 70% of people can’t afford expensive private hospitals for an abortion, they have to depend on Govt district hospitals and rural health centres. Some of our rural health Centers and Govt hospitals have no upgraded infrastructure as well as they are not hygienic also, where complex procedures can be done without any risk of life loss. Furthermore, some news comes up that the staff of the hospital or health centres asked the woman to call her parents in case of the woman is unmarried. This is totally illegal and biased toward women, the law needs strict provisions for the unethical behaviour of the kinds of stuff and the law should more concerned about the infrastructure of the health centres.

After the historic Judgement of our Apex Court on 10^th August which protects the rights of an unmarried woman for abortion, we can say we are taken small steps ahead to make our Law strong enough for the betterment of our society.