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Key Takeaways

  • Abortion is a procedure which is still looked down upon by the Indian society and especially for unmarried women.
  • While there have been countless discussions and debates in India about abortion rights, abortion of a foetus is still considered barbarous and illegal.
  • On therapeutic, eugenic, humanitarian, and social grounds, the new Medical Termination of Pregnancy Act 2021 offers universal access to complete treatment by expanding access to safe and legal abortion services.
  • The right to an abortion is not a stand-alone right and includes other human rights to properly utilize the right to the benefit of the people.
  • Several laws have been incorporated to make this procedure friendly for women keeping in mind the people using this procedure for immoral and illegal purposes.
  • The article extensively discusses the abortion laws in India and abroad and the recent legislation in India

Introduction

Since ancient times, abortion has been a contentious issue. Abortion was once considered a taboo subject in India. Mahatma Gandhi, a well-known proponent of nonviolence, said, "It appears to me clear as daylight that abortion would be a crime." However, as time has passed, people's ideologies have gotten more liberal, and as a result, various laws have been enacted, legalising abortion in India.

Abortion is defined as an untimely termination of the unborn under the Medical Termination of Pregnancy (MTP) Act, 1971 in India, which is the law dealing to abortion. In India, there is a legal time limit for abortion, and failing to adhere to it is a criminal act.

Foeticide is the term used in India when a pregnancy is terminated after the legal period for an abortion has passed. It's called an abortion if you terminate before then. In India, the term abortion refers to the intentional medical termination of a pregnancy, which can be done in either medically or surgically.

Legal Position in India

While there have been numerous debates and conversations about abortion rights in India, abortion of a foetus is still regarded both barbaric and unlawful. The legality or illegality of abortion in India is governed by a number of laws.

Abortion was legal in India until 1971, according to the Indian Penal Code (IPC). However, the IPC does not contain any explicit regulations concerning abortion. It does, however, address miscarriage under sections 312 to 316 of the code.

The MTP Act stipulates that a woman may terminate her pregnancy in specific situations. Its purpose was to give some exceptions to the section of the Indian Penal Code, 1872 (IPC) that renders "causing a miscarriage" a criminal offence. It was discovered that many women seeking abortions' health and lives were being jeopardised as a result of the law's strict stipulations.

Any act done with the goal of preventing the child from being born alive or causing it to die after birth is a criminal offence under the IPC, for which both the woman seeking the abortion and the medical practitioner can be prosecuted.

As a result, it was considered that abortions should be permitted in certain instances. The MTP Act aimed to allow abortion only when the pregnancy threatened the woman's mental or physical health, or when there was a significant danger that the foetus would be born with serious physical or mental defects.

A woman did not have the legal right to terminate a pregnancy, but she may if one of these circumstances were met. Notably, the attempt to contemplate legalising abortions coincided with a campaign to reduce the country's population through coercive methods and mass sterilisation operations, frequently with eugenic goals, of people from marginalised backgrounds.

Surprisingly, the Committee established by the Ministry of Health in 1964 to explore the issue of abortion legalisation advised that it be allowed on eugenic grounds. Thankfully, this Orwellian advice did not make it into the law that was eventually approved, but it does provide insight into the circumstances surrounding the MTP Act's passage and the motivation behind it. When seen in the perspective of the larger battle to reduce population increase, it is evident that establishing the MTP Act had nothing to do with a woman's freedom to make reproductive decisions.

The Supreme Court had concluded, in the Suchita Srivastava decision, that a woman's ability to make reproductive choices is a dimension of human liberty under Article 21, and that reproductive choice can be used to both reproduce and refrain from procreation.

The MTP Act, on the other hand, contradicts this precedent by allowing abortions in very limited instances.Since 2017, a flood of petitions has been filed in the Supreme Court and different High Courts by women seeking to end pregnancies that have progressed beyond the MTP Act's 20-week limit.

Era After Legalizing Abortion

The number of approved abortion facilities and the number of abortions reported by those facilities increased only little (8–10 percent) in the first years after abortion was legalised, from 1972 to 1986. In contrast, the number of abortions reported in certified facilities decreased in the late 1980s and 1990s. In 1997, over two-thirds of legal abortion facilities were located in cities, indicating that there is still a significant disparity between urban and rural access to approved abortion facilities in a country that is still primarily rural.

In the mid-1990s, the government reported less than 10% of the projected total number of abortions. Abortions that take place outside of certified institutions are rare and unreliable. Estimates ranging from the early 1990s to more recent years are primarily hypothetical, with estimates ranging from 2–11 illicit abortions for every legal abortion. So, while it's possible that not all abortions in unapproved facilities are dangerous, it's safe to conclude that safe abortion care isn't widely available. In most states, fewer than 20% of primary health care clinics offer abortion services. Women prefer to seek abortions in the private sector even when they are legally permitted to do so, resulting in under-utilization of public facilities.

Furthermore, both state and private abortion services are frequently of poor quality in terms of method, counselling, privacy, and anonymity. The majority of clinicians still favour dilatation and curettage (D&C) for early abortion, with vacuum aspiration being used by less than a quarter of providers. The legality of abortion is poorly understood, and there are many misconceptions about the law among women and practitioners.

Case Laws

The Medical Board's recommendations inform the Court's rulings. The Medical Board's findings on the continuation and termination of pregnancy, rather than the woman's reproductive rights, become the deciding element for the Court.

In the landmark judgement of Justice K.S.Puttaswamy (Retd.) v. the Union Of India & Others, it was held that reproductive choice is a personal liberty guaranteed under Article 21 of the Indian constitution, which, despite laying a robust jurisprudence on reproductive rights and the privacy of a woman, does not translate into a fundamental shift in power from the doctor to the woman seeking an abortion. As a result, abortion is still linked to state-sanctioned conditions, rather than to a woman's rights.

The Supreme Court of India allowed a 22-week-old pregnancy to be terminated in Mrs. X v. Union of India, 2016 14 SCC 382. Allowing the pregnancy to continue could threaten the woman's bodily and emotional wellbeing, according to a seven-member Medical Board. The Supreme Court ruled that under Article 21 of the Constitution, a woman's right to make reproductive choices is also a dimension of her "personal liberty," and that her right to bodily integrity permits her to terminate her pregnancy.

In Murugan Nayakkar v. Union of India & Ors., 2017 SCC OnLine SC 1902 the Supreme Court allowed the termination of a 13-year-old rape victim's 32-week-old pregnancy, stating that considering the petitioner's age, the trauma she has suffered as a result of the sexual abuse, the agony she is going through now, and above all the report of the Medical Board constituted by this Court, we think it appropriate that terminating the pregnancy.

The Court, however, in Savita Sachin Patil v. Union of India, refused to allow a 27-week pregnancy to be terminated. The Medical Board determined that the mother was not in any danger, but that the foetus had serious physical abnormalities.The Court then refused to allow termination based on the Medical Board Report.

The Court decided not authorise abortion in Alakh Alok Srivastava v. Union of India,(W.P.(C) No. 565/2017) where the petitioner was a 10-year-old pregnant rape victim with a 32-week pregnancy. The Medical Board determined that continuing the pregnancy was safer for the petitioner than terminating it at that point. The Court asked the Centre to direct the establishment of permanent medical boards in states to quickly consider requests for termination after 20 weeks of pregnancy, and the Centre issued directions to that effect.

MTP Amendment Act

The new Medical Termination of Pregnancy (Amendment) Act 2021 ensures universal access to comprehensive treatment by expanding access to safe and legal abortion services on therapeutic, eugenic, humanitarian, and social grounds. The new law, which took effect on March 25, 2021, will help to achieve the Sustainable Development Goals (SDGs) 3.1, 3.7, and 5.6 by reducing preventable maternal mortality.

The revisions take into account developments in medical technology, simplify provider requirements, raise the upper gestation limit for termination of pregnancy under certain circumstances, and abolish the gestation restriction for situations that potentially put a strain on the health system. The purpose is to provide access to complete abortion care for women who require safe and high-quality services without jeopardising their dignity, autonomy, confidentiality, or fairness.

  • Increasing the upper gestation limit for particular categories of women, such as rape survivors, incest victims, and other vulnerable women, from 20 to 24 weeks (differently abled women, minors, among others).
  • For the termination of a pregnancy up to 20 weeks of gestation, one provider's opinion is required. For the termination of a pregnancy between 20 and 24 weeks of gestation, two physicians' opinions are required.
  • In cases of significant foetal anomalies diagnosed by a Medical Board, the upper gestation restriction will not apply.
  • Clause of non-disclosure. The identity and other personal information of a woman whose pregnancy has been terminated can only be given to a person who has been granted permission by the court.
  • MTP services were extended to unmarried women under the failure of contraceptive provision to give access to safe abortion based on a woman's choice, regardless of marital status.
  • Termination requires:

o One Registered Medical Practitioner's (RMP) opinion on pregnancy termination up to 20 weeks of gestation.

o Two RMPs' opinions on terminating a pregnancy that is 20-24 weeks gestation.

o If a pregnancy is terminated after 24 weeks due to significant foetal abnormalities, the opinion of a state-level medical board is required.

Human Rights and Abortion

The right to have an abortion is not a self-contained right. It is contingent on people having other human rights, such as the right to health, equality, privacy, and a life free of violence and discrimination. As a result, Ipas collaborates with a wide range of partners to help create a society where all human rights, including sexual and reproductive rights, are respected, protected, and realised.

Women's rights, such as the right to life, health, equality, privacy, and a life free of discrimination, are violated by restrictive abortion legislation. Everyone has a right to life, a right to health, and a right to be free of violence, discrimination, torture, and other cruel, inhumane, and degrading treatment under international human rights law. Bodily autonomy is defined by human rights legislation as the ability to make decisions about your body on your own.

Forcing someone to carry on an unwanted pregnancy or seek an unsafe abortion violates their human rights, especially their right to privacy and physical autonomy. Those who have no choice but to resort to unsafe abortions face prosecution and punishment, including incarceration, as well as harsh, inhuman, and humiliating treatment and discrimination in post-abortion health care, as well as exclusion from it. As a result, access to abortion is inextricably related to the protection and upholding of the human rights of women, girls, and those who may become pregnant, and hence to the achievement of social and gender justice.

International human rights norms have dramatically changed in the last two decades to regard the denial of safe abortion services as a human rights violation. The 1994 Worldwide Conference on Population and Development (ICPD) Programme of Action, which was the first international consensus text to acknowledge reproductive rights as human rights already incorporated in local and international law, substantially underlay these achievements.

Its call for governments to strengthen their commitment to women's health by addressing unsafe abortion, ensuring legal abortion access, and ensuring all women receive quality post-abortion care established an important starting point for addressing unsafe abortion and promoting abortion access as a human rights imperative. Despite substantial evidence that this is necessary for reducing unsafe abortion and the resulting maternal mortality and morbidity, the ICPD Programme of Action instructions on abortion are relatively restrictive and conflicting.

The Committee on the Elimination of Discrimination Against Women (CEDAW Committee) explicitly instructed a state party to decriminalise abortion in cases of rape in the landmark case of L.C. v. Peru, marking the first time a human rights body has explicitly directed a state party to liberalise its abortion law as a result of an individual communication. Furthermore, treaty monitoring agencies have pushed nations to broaden the scope of exceptions to restrictive abortion legislation to include mental health disorders as a threat to women's health, for example.

Abortion has been recognised as a human rights matter by the Special Procedures of the United Nations Human Rights Council, in addition to the treaty monitoring organisations. The development of strong international and regional human rights norms that recognise abortion as a human rights issue has had a considerable impact on state jurisprudence and legal reform. In deciding whether their countries' laws and practises effectively guarantee women's reproductive autonomy, high courts have increasingly relied on international human rights principles.

Abortion in United States of America

Along with numerous Western European countries, the United States was one of the first countries to liberalise its abortion laws in the 1970s. The Supreme Court of the United States ruled in Roe v. Wade in 1973 that the Constitution provides women the right to choose whether or not to have an abortion. Planned Parenthood v. Casey, which was decided in 1992, reaffirmed this right while allowing for controls such as waiting periods and parental consent requirements.

State regulations governing abortion in the United States have varied greatly since the ruling. A growing number of states have approved legislation prohibiting abortion beyond six weeks or regulating abortion providers, resulting in the closure of more than 160 clinics and the closure of only one abortion provider in six states. A law voted in Alabama in May would prohibit abortion in almost all circumstances, with no exceptions for rape or incest; if it were to become law, Alabama would have one of the strictest abortion regulations in the world.

Abortion in China

In the 1950s, China liberalised its abortion laws and pushed the practise under its one-child policy, which was implemented in 1979 to limit families to one child in order to reduce population growth. The strategy, which made abortion services widely available, came with harsh coercive methods to prevent unwanted births, like penalties, forced sterilisation and abortion. In 2016, China increased the two-child limit, as well as additional incentives, to encourage population growth in the face of a rapidly ageing population. Activists are concerned that, in order to regulate demography, the government may utilise coercive means to put limitations on women once more.

Abortion in Russia

During the Soviet era, induced abortion was a common method of birth control used by Soviet families for decades. Russia was the first country in the world to legalise abortion as a woman's right to choose in 1920. Abortion was illegal from 1936 to 1955, and backstreet abortions became prevalent, causing serious health problems and a high increase in maternal fatalities. Because Soviet women lacked access to dependable and secure contraception, they were forced to resort to abortion to end undesired pregnancies.

Abortion in Germany

Abortion is illegal in Germany under Section 218 of the Criminal Code. However, if the following conditions are met, abortion can be obtained without fear of being prosecuted:

  • If the abortion is conducted within the first trimester (12 weeks) of the pregnancy and the pregnant woman has received mandatory counselling prior to the procedure. A three-day wait time is also required between counselling and intervention.
  • If the pregnancy is the result of a sexual assault or if the expectant woman's bodily or mental health is in jeopardy.

Institutions and individuals performing abortions are forbidden from giving vital abortion information to anybody, according to Section 219a. Doctors can indicate that they perform abortions, but they can't say how or under what circumstances.

Abortion in France

Abortion has been allowed in France since 1975, and a woman can undergo an abortion up to 12 weeks after conception on request.

Two medical consultations are required before to the abortion, and there is a one-week mandatory "reflection" time prior to the termination, unless it is an emergency, in which case it might be reduced to two days. If the woman's life is in danger, an abortion can only be performed after the 12th week of pregnancy. Single women are not need to obtain their partner's consent. A non-resident traveller to France can lawfully abort a pregnancy while in the country.

Minors must meet with a counsellor in the week before up to the procedure as well as in the days after it. Adults can choose whether or not to participate. Minors do not require parental consent, but they must be attended by an adult at all times during the process. France is currently changing the law to set the consent age at 15 years old. If an adult has sex with a child under the age of 15, it will be considered rape.

Abortion in United Kingdom

The debate for abortion rights in England has been as fierce as it has been in the United States; however, rather than the courts, Parliament has been the battleground. The fundamental reason for this is the Parliament's Sovereignty, which makes English courts weaker than American courts, which can really overturn legislation. Foetal rights were once thought to be unalienable. Women's rights to manage their own bodies are currently being balanced against foetal rights. Women can now seek abortions with some restrictions and government oversight. There are still a lot of unsolved questions when it comes to abortion.

Abortion in Ireland

In 2018, the Irish parliament made it lawful to terminate a pregnancy before twelve weeks, as well as in circumstances where the mother's health is in jeopardy. Previously, Ireland had one of Europe's strictest abortion laws, which was formalised in a 1983 constitutional amendment that virtually prohibited the procedure. The death of Savita Halappanavar in 2012, when she was denied an emergency abortion, sparked popular outrage and spurred a nationwide referendum to repeal the amendment, which received 66 percent of the vote. In Northern Ireland, abortion became legal in 2019. Following a vote by the UK Parliament, the 1967 Abortion Act, which authorises doctors in England, Scotland, and Wales to perform abortions, was extended to Northern Ireland.

Abortion in Kenya

Postcolonial Kenya's abortion law was influenced by the British penal code, which made abortion illegal. When Kenya approved a new constitution in 2010, it broadened the grounds for women to have abortions to include emergency situations or situations in which the mother's health is in jeopardy. A Court in June 2019 expanded the exceptions to include rape cases. Many former European colonies are extending the grounds for abortion as they rethink their abortion laws. All countries with severe abortion laws inherited from France's 1810 Napoleonic Code have made abortion permissible in circumstances of rape, incest, and foetal abnormalities.

Conclusion

It is critical that recent modifications, rules, and laws are appropriately conveyed and broadly disseminated to all stakeholders, including service providers, programme administrators, NGOs, and the general public. While it is admirable that the Central Government has taken such a bold stance while balancing our country's many cultures, traditions, and schools of thought, the amendment still leaves women with various conditions, which in many circumstances pose a hindrance to safe abortion access. All regulations and standardised protocols in clinical practise to facilitate abortions must be followed in health care institutions across the country, according to the government. MTP Amendment is no doubt a step towards a better future of the mothers of the country; but to what level it would be beneficial is yet to be seen.

The issue of abortion must be decided in accordance with human rights, sound scientific principles, and technological improvements.


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