- On August 10, 1971, the Medical Termination of Pregnancy Bill was passed by both houses of Parliament and signed by the then-President of India.
- In Justice K.S. Puttaswamy v. Union of India, it was held that it is a constitutional right of women to make reproductive choices as part of their liberty under Article 21 of the Indian Constitution.
- An amendment Bill was brought before the Lok Sabha on March 02, 2020, and was passed on March 16, 2021. The Bill extends the time frame in which abortion can be performed.
- The Kerala High Court said a mildly mentally challenged mother's right to abort her more than 22-week-old abnormal foetus cannot be taken away.
In a democratic country like India, everyone has rights and choices. A woman's right to abortion is one such choice. Abortion is defined as the termination of a pregnancy or the expulsion of an immature foetus. Our country's legislature recognised that abortion is a human right and that making it illegal would jeopardize women's health with unwanted pregnancies. Hence, the legislature drafted a law to protect women from unsafe abortions—the Medical Termination of Pregnancy Act, 1971. Certain conditions allow for pregnancy termination. Despite the law, women have been denied abortions. But the laws have evolved with time. In the Indian legal language, the term "termination of pregnancy" is used instead of "abortion."
The Medical Termination of Pregnancy Act, 1971
On August 10, 1971, the Medical Termination of Pregnancy Bill was passed by both houses of Parliament and signed by the then-President of India. The statue came to be known as the MTP Act, 1971.
The Termination of unwanted pregnancies was made legal under this law, but not all pregnancies were covered. According to the Act, a woman can only have her pregnancy terminated by a registered medical practitioner in government-regulated or approved hospitals. It's also worth noting that pregnancy can't be terminated without the consent of the expecting mother unless she's under the age of eighteen or insane. The approval of the guardian is required in such cases. Section 3 of the MTP Act of 1971 established conditions in which an unwanted pregnancy could be terminated. Those conditions are:
- When there is a threat to a woman's life or a risk to her health of any kind.
- When pregnancy is the result of a crime such as rape, etc.
- When there is a chance that the child will be born will have a physical or mental deformity.
Is termination of pregnancy a Fundamental Right in India
The Supreme Court of India specifically stated in Justice K.S. Puttaswamy v. Union of India that it is a constitutional right of women to make reproductive choices as part of their liberty under Article 21 of the Indian Constitution. Abortion is also fits right under the Medical Termination Act of 1971. In the case of Suchita Shrivastava v. Chandigarh Administration, it was also stated that each woman has reproductive rights, which include the right to carry a pregnancy to term, give birth to children, and raise them, and that these rights are part of a woman's privacy, dignity, and bodily integrity. Because abortion is an implied fundamental right, an aggrieved party can file a lawsuit if it is violated.
According to the law, a pregnancy cannot be terminated before the 24th week because it puts the mother's health at risk. However, in exceptional cases, judges must use their discretion, relying on the reports and recommendations of the Medical Board, to decide whether or not to allow abortion. The UN's International Conference on Population and Development recognises these reproductive rights. These rights include access to contraception, legal and safe abortion, making reproductive decisions free of discrimination, coercion, and violence, and equal access to sexual and reproductive health services for LGBTQ people.
The Medical Termination of Pregnancy (Amendment) Bill, 2020
An amendment Bill was brought before the Lok Sabha on March 02, 2020. The Lok Sabha passed it on March 17, 2020, and it received assent from Rajya Sabha on March 16, 2021. The Act governs the circumstances in which a pregnancy can be terminated. The Bill extends the time frame in which abortion can be performed.
Earlier, if the abortion was performed within 12 weeks of conception, one doctor's opinion was required. The bill allows abortion on one doctor's advice up to 20 weeks and two doctors between 20 and 24 weeks for certain categories of women. The Bill establishes state-level Medical Boards to determine whether a pregnancy can be terminated after 24 weeks, if there are significant foetal abnormalities.
In Dr. Nikhil Dattar & Others v/s Union of India & Another (WP(L)1816 / 2008), the petitioner's doctor discovered severe foetal abnormalities in her 22nd week of pregnancy. The doctor advised her to wait two weeks for a diagnosis. The foetus was diagnosed with congenital complete heart block in the 24th week of her pregnancy. The doctor then advised her to abort. To comply with the Medical Termination of Pregnancy Act, 1971, the doctor and his assistant sought judicial authorization from the Bombay High Court.
A petition was filed and heard in the Bombay High Court on July 29, 2008. An expert committee of gynecologists and pediatricians in cardiology was formed to examine the petitioner on the issue of pregnancy termination. The Hon'ble High Court of Bombay dismissed the petitioners' request to terminate the 24-week pregnancy due to the discovery that if the child is born, it would be incapable or handicapped. This pregnancy could not be terminated because the gynecologist, cardiologists, and pediatricians said there was a low risk of the child being born disabled.
The doctor's report submitted on behalf of the petitioners did not mention any serious physical or mental illness endangering the child's life. Affirming that the Medical Termination of Pregnancy Act, 1971, Section 3(2)(b)(ii) does not permit terminations after the 24th week of pregnancy, the Court ruled. Suppose a doctor or a member of the pregnant lady's family takes such action. In that case, they are subject to punishment under Section 313 of the Indian Penal Code, 1850.
In the case of Surjibhai Badaji Kalasva v. State of Gujarat (2018), Surjibhai Badaji Kalasva filed a writ petition on behalf of her 13-year-old daughter. The latter was sexually assaulted by the accused. The accused was an 8th grader from Vadari village's Ashram Shala. The victim didn't tell her parents about the incident earlier. The petitioner and his wife later noticed the victim's stomach growing abnormally. The victim also complained of stomach pain. The petitioner took the victim to the Government Hospital, where she was found to be pregnant. After the report clarified the pregnancy, the victim's parents inquired. She said the accused sexually assaulted her.
The petitioner and the victim filed a case for abortion in the Sessions Court. The case was heard by the POCSO and the 2nd Additional Sessions Judge. On the court's order, a team of three doctors examined the victim, and they found that the victim was 30 weeks and one day pregnant. They also stated that terminating the pregnancy violated the Medical Termination of Pregnancy Act of 1971. If the termination is done anyway, there may be risks to the foetus or mother.
The victim's father filed a writ petition under Article 226 of the Indian Constitution, citing a delay in the Sessions Court's decision. The Court ordered the doctors who presented the report during the Session's Court proceedings to appear. They stated in the report that abortion should be completely ruled out. The foetus weighed 1.7 kg, so its chances of survival are high. Doctors advised that due to the victim's age (13-14), she would be unable to deliver the baby normally. So, the caesarean procedure should be performed. The Hon'ble High Court denied the termination of the pregnancy because it would have been against the law. Also, the foetus was 31 weeks old at the time and couldn't be terminated. The Court's judgement included specific guidelines for the victim's and the child's care and protection.
In a recent case of August 2021, a woman and her husband moved a plea seeking medical termination of over a 22-week pregnancy because continuing it would endanger the mother's life and cause physical and mental defects in the child. The woman was mildly mentally challenged. The foetus had Klinefelter syndrome, a genetic condition in which a male is born with an extra copy of the X chromosome. The syndrome is a chromosomal anomaly linked to mental retardation, endocrine issues, and later-life psychological issues. Aside from mild mental disabilities, the woman has visual disturbances, seizures, and weakness in her left lower limb, with a 55% permanent disability. The report said that while Klinefelter syndrome was not life-threatening, the mother's mild mental disability and impaired adaptive skills made childbearing "difficult." The report also recommended medical termination.
The Kerala High Court said a mildly mentally challenged mother's right to abort her more than 22-week-old abnormal foetus cannot be taken away. Courts have recognised a mother's right to terminate a pregnancy if there is a substantial risk that the child will be born with severe disabilities. Consequently, the writ petition was granted, allowing the first petitioner (mother) to abort. The Court added that the respondents could go through the procedure at the risk of the first petitioner.
Every woman must decide whether or not she is ready to take on the responsibility of childbearing. Even in this age of technology and development, there are numerous cases of women suffering from inadequate abortion facilities. There have been multiple instances where a woman has been subjected to external and emotional pressure to either bear or terminate a pregnancy. Laws, on the other hand, are progressing in a progressive society. The Kerala High Court's recent decision, in which a woman was given the option of bearing a child or not, can be considered a new era decision.