All About Abortion In India And Beyond

INTRODUCTION

The Indian Penal Code which was enacted based on British laws more than a century ago which contained provisions regarding termination of pregnancy. Back then, abortion was a crime for which the mother as well as the doctor could be penalized except in cases where abortion was required to save the life of the mother.

This regressive law many-a-times amounted to breach of law which went unseen, was one of the major reasons for the untimely deaths of pregnant women due to unsafe abortions. In order to save the pregnant women's health and life, the Medical Termination of Pregnancy Bill was introduced in the Parliament.

LAWS GOVERNING ABORTION IN INDIA

Recently, the abortion laws in India underwent a change. The laws relating to abortion are governed by the Medical Termination of Pregnancy Act, 1971 which was later altered by certain amendments in 2021. The Rajya Sabha gave its nod to the amendments and a bill was passed by the parliament called the Medical Termination of Pregnancy (Amendment) Act, 2021. While many welcomed the recent changes but some criticised pointing out the loopholes still in the newly passed amendment act, 2021.

The Medical Termination of Pregnancy (MTP) Act, 1971

  • When pregnancies could be terminated?

According to section 3 of the MTP Act, 1971 a pregnancy could be terminated by a medical practitioner if the length of the pregnancy

Does not exceed 12 weeks; or

Exceeds 12 weeks but not more than 20 weeks

  • For which reasons termination of pregnancy can take place?

The pregnancy could cause serious health risks to the life of the pregnant lady or cause grave injury to her mental or physical health.

Contraceptive failure but only for married woman.

Pregnancy due to rape or incest.

It poses serious risks to the child if born. The child born could suffer mental or physical anomalies.

  • Consent

Consent will be required in cases where the pregnant lady is below 18 years of age or is mentally ill with the written consent from her guardian for abortion. No consent is required in the case of pregnant women above 18 years of age.

  • Where termination of pregnancy I.e. abortion can take place?

As per section 4 of the MTP Act, 1971 termination of pregnancy is allowed only in a government hospital or a place approved by the government.

  • Which registered medical practitioners are allowed to terminate a pregnancy?

As per the 1971 act, a gynaecologist, MBBS Doctor and obstetrician are the types of doctor allowed to terminate the pregnancy.

The Medical Termination of Pregnancy (Amendment) Act, 2021

There are certain changes made to the Medical Termination of Pregnancy Act, 1971 which are discussed below.

  • When pregnancies could be terminated?

The gestation period has been increased and now abortion is allowed if the length of the pregnancy

Up to 20 weeks; or

Exceeds 20 weeks but up to 24 weeks; or

Exceeds 24 weeks (Allowed only in special cases)

In case the length of pregnancy is up to 20 weeks acknowledgement of 1 registered medical practitioner (RMP) is required.

In case the length of pregnancy exceeds 20 weeks but not more than 24 weeks then acknowledgement of 2 registered medical practitioners is required.

The gestation period will not apply in cases where the foetus suffers from substantial foetal abnormalities.

  • For which reasons termination of pregnancy can take place?

Usually, termination of pregnancy can take place with the reasons mentioned in the MTP Act, 1971, if the gestation period is above 20 weeks or between 20 to 24 weeks. However, when it comes to termination of pregnancy beyond 24 weeks then only in special cases a woman can abort her baby. The reasons are as follows:

The pregnancy could cause serious health risks to the life of the pregnant lady or cause grave injury to her mental or physical health.

Contraceptive failure but only for married woman.

Failure of medical procedure for birth control.

Pregnancy due to rape or incest.

If the child is born it poses serious risks. The child born could suffer mental or physical anomalies.

  • Opinion of Medical Board

Opinion of the medical board is required as per the new amendment act, 2021 in cases of abortion. The medical board shall consist of the following:

Gynaecologist

Paediatrician

Radiologist/ Sonologist

The point which is debated is that in reality in many parts of our country especially rural areas it is hard to find a specialist when the hospitals itself lack proper management, staff, facilities, etc.

  • Privacy of Patient

According to section 5A of the Amendment Act, 2021 the privacy of the patient i.e. the pregnant woman should be protected. The medical staff is not allowed to reveal any details about the patient except to a person authorized by law. In contravention of the section, a person can be punished for up to 1 year or with a fine or both.

CASE LAWS RELATING TO ABORTION

Discussed below, are some of the judgements passed by the Supreme Court and various High Courts in India.

1. Mahima Yadav v. NCT of Delhi & Others (Delhi High Court)

Case:- This week recently a case came up before a single judge bench of Delhi High Court wherein the petitioner’s length of pregnancy was beyond 24 weeks. She contended that the foetus had a rare condition called ‘Warfarin Embryopathy.’ The medical board in its report stated that though it is risky to terminate the risk is within permissible limit and so it can be terminated.
Judgement:- The court allowed the medical termination of pregnancy beyond 24 weeks as per the provisions of the new amendment act and stated in its order that as the foetus carried health risks due to a rare condition and even if the child would be given birth still many surgeries would be required even after birth and could have a physical abnormality.

2. Akhila Kurain @ Akhila Ann Baby v. U.O.I & Others (Kerela High Court)

Case:- In this case, the petitioners were a married couple and wanted to abort the foetus. The petitioners in their petition stated that the length of the pregnancy was 35 weeks and the foetus suffered from serious brain development abnormalities.
Judgement:- The court observed that the petitioners are willing to take the risk although as per the medical report submitted by the medical board it states that there are chances of survival of the baby simultaneously there are chances of excessive bleeding during delivery. Further, the report stated that the foetus has mental abnormalities but nowhere it was mentioned in the report that the petitioner can abort the baby. So the court dismissed the petition for abortion of a 35-week foetus.

3. Minor Rape victim's Right outweighs Foetus's Right (Rajasthan High Court)

Case:- In this case, the petitioner was a 17-year-old rape victim who wanted to abort the foetus but the gestation period went beyond 20 weeks. Earlier when the girl approached the POSCO court her plea for abortion was rejected. She later approached the single judge bench of Rajasthan high court which also rejected her petition citing the foetus has a fundamental right under Article 21 to remain alive.
Judgement:- However, the 2 judge bench of Rajasthan High Court clarified that the right of the victim under Article 21 outweighs the right of the foetus. And it set aside the order passed by a single judge bench of Rajasthan High Court and allowed the rape victim to undergo an abortion.

  • Recently, in a survey conducted by the Times of India, people were asked regarding their views on abortion and the statistics shows as follows:

80% - Women should be given the right to decide regarding abortion.

8% - Believed women should not be given absolute right.

8.6% - Against the idea of abortion.

ABORTION IN DIFFERENT COUNTRIES

A Study by Guttmacher Institute reveals that in countries, where abortion laws are made easier and legalized the abortion rates have declined in such countries in the past 25 years. While countries with more regressive and strict laws relating to abortion have high rates of abortion.

As per the reports published by the Institute, it was revealed that about 56 million abortions occur worldwide and nearly 50 million abortions take place in developing countries.

Abortion In Japan

Japan is a developed country that has not legalized abortion. However, the penal code of Japan Chapter XXIX reveals that in exceptional cases abortion would be allowed. In cases of rape or incest also when the health of the pregnant lady is at risk. In Japan approval of the spouse is needed along with the mother and approved doctors can only perform an abortion.

Abortion In The USA

In the U.S not all states have legalized abortion. Though it is a developed country each state in the U.S has its set of laws. The landmark judgement which legalized abortions in America was the case of Roe v. Wade.
As there are some states in America which do not allow abortion for example the state of Alabama punishes doctors for abortion. This makes it difficult for women who want to opt for abortion and thus have to travel to other states.
In America, the medical procedure of abortion is said to be considered the safest. But a report by Amnesty shows a different reality, it was published that in 6 states where abortion is legal there is barely 1 abortion clinic in the whole state.

Abortion In Germany

In Germany, the system of abortion is quite different than in other countries. Abortion is allowed only within the 1st trimester but in cases of health risks or medical necessities, abortion can be allowed beyond 1st trimester. But before going for abortion a compulsory counselling session of 3 days is required. Such counselling takes place only at centres approved by the state.

▪︎ The survey reveals abortion rates in 5 different countries of women opting for abortion.

Switzerland has the lowest abortion rates while Pakistan is the highest, whereas the U.S.A and Britain have the same abortion rates.

Switzerland – 5 per 1000 women
Pakistan – 50 per 1000 women
U.S & Britain – 13 per 1000 women
Mexico – 34 per 1000 women

Pie Chart

CONCLUSION

Studies reveal that to bring down the rates of Abortion it is necessary to bring awareness and meet the demands of contraceptive use. Women usually opt for abortions as they do not intend to be pregnant. Countries having strict laws with regards to abortion compel women to abort the baby illegally and which can lead to unsafe abortions and risks the life of the women.

Religiously abortion is considered a sin. But even some religious texts reveal that abortion is allowed only if it risks the life of the mother. But the scenario and thinking with regards to abortion has changed over time. Now in many countries, abortion laws have been changed making it legal while still some countries have chosen to keep it illegal.

 

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JINALI SHAH Online
on 12 April 2021
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