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Understanding Abortion Rights in India



The right to abortion is an important part of reproductive justice. Abortion in India is centered around stigma and cultural conflicts. The right of a woman to abortion is often viewed as an offence by the society. The irony is that abortion is still illegal in India, aggravating the existing disfigurement towards the right of abortion. Autonomy to one’s own body is recognized as an important fundamental right under the ambit of Article 21 by the renowned judgement in Justice KS Puttaswamy v Union of India (2017).


In the era of heated debate between pro-life and pro-choice, understanding the approaches towards abortion is necessary. There are mainly three views regarding abortion such as conservative, liberal and moderate. The conservative view is pro-life, emerging by recognizing a foetus as a human from very conception. So, they argue for the same rights for a foetus as an adult. Pro-choice or the liberal view, accepts the foetus as a potential human but gives more importance to the women’s right of choice. They give more importance to the rights of women, thereby aligning with feministic perspective. The third one is moderate, where there is recognition of foetus as a human/potential human in biological sense but refuses to accept it as full moral/legal person. This approach tries to balance the two extremist viewpoints: the liberal and the conservative there by creating a more harmonized approach towards abortion rights. The Indian laws adopted a modernist approach towards the abortion rights.


The Indian legislation dealing with abortion is the Medical Termination of Pregnancy (MTP) Act, 1971. As mentioned earlier abortion is illegal in India as per the Indian Penal Code and remain to be an offence in the Bhartiya Nyaya Sanhitha (BNS) also, for a reason only known to the drafters. Section 88 of BNS bars causing a woman a miscarriage. This section criminalizes the acts of doctors or women who cause themselves to miscarry, without the consent of the medical board. Drafted as per the recommendations of Shantilal Shah Committee of 1964, the MTP Act primarily made to deal with rapid growth of population and increasing rate of maternal mortality. The Act adopted an exception-approach towards the applicability of IPC/BNS on the abortion made under this Act.


 The MTP Act, which has undergone amendment twice (2002 & 2021) in its inception, among the bigger of the two is the 2021 amendment. Now, abortion is allowed up to 24 weeks of pregnancy with some restrictions. In the case of termination of pregnancy of up to 20 weeks the opinion of 1 medical practitioner is needed and from 20 to 24 weeks the opinion of 2 Medical Practitioners is necessary. Earlier, the upper limit of gestational period for abortion was 20 weeks. Now, from 20 to 24 weeks, special categories of women such as survivors of rape, incest victims, and other vulnerable groups such as minors and women with disabilities are allowed. In the case of abortion beyond 24 weeks there was no provision in MTP Act before the amendment of 2021. But now, if approved by the Medical Board there is no upper gestational period for foetal abnormalities. Again, one of the progressive steps taken by India by the amendment of MTP Act in 2021 is that, now the Act will provide provisions of abortion for every woman irrespective of their marital status.


As mentioned, the amendment introduced major changes in the reproductive landscape of India. As a result, more primary health care centres can provide abortion up to 20 weeks and this helped many women from vulnerable group to easily access abortion. The absence of upper gestational period in the case of foetal abnormalities if approved by the Medical Board led to reduction in court cases and increased access for late diagnosis. The amendment also added that confidential information regarding the women who terminated her pregnancy will not be disclosed except to persons authorized by any law in force at that time.


Even though India has more progressive approach to abortion, the MTP Act still faces certain challenges. The Act is doctor-centric, where a women can only access abortion only on the discretion of a doctor/medical practitioner on the ground of medical reasons. The MTP Act, uses the word “woman” instead of” persons with uterus” or “pregnant persons”. However, in the case of X v. Principal Secretary (2022), the court interpreted “woman” in MTP Act also includes persons other than cis women. There exists a conflict between MTP Act and Protection of Children from Sexual Offences (POCSO) Act. Under the POCSO, it is mandatory for a medical practitioner to inform the police officer whenever a minor related to sexual relation.  Here comes the problem of confidentiality. Most medical practitioners hesitate to take cases of abortion involving minors as it requires certain legal procedures and that subsequently will lead to a delay in termination of pregnancy. Again, clubbing disabled women with minors, reinforces a notion that disabled persons are incapable making reproductive decision. This shows the eugenic approach towards the differently abled, restricting them from making reproductive choices.


Disregarding the limitations and ambiguity among certain provisions of the MTP Act, still it stays as a foundation for the reproductive justice in India. Judicial Interpretation of MTP Act on many occasions was a humble attempt from the part of judiciary to enforce reproductive autonomy and equality in the country. In the case of Suchitra Srivastava & Another v. Chandigarh Administration (2009), the court held that, a woman’s reproductive choices are integral part of her personal liberty under Article 21 of the Indian Constitution. Another remarkable judgement was pronounced in the case of Dr. Mangla Dogra & Ors. V. Anil Kumar Malhothra & Ors. (2011), where the court held that a woman does not need the permission of her husband/spouse in termination of her pregnancy. The prisoners’ right to abortion without taking the consent of jail authorities was upheld in the case of Halo Bi v. State of Madhya Pradesh & Ors. (2013). All these cases show how judiciary goes beyond the mere applicability of law to broader societal implication upholding the dignity and essence of Indian Constitution.


Nationally and internationally, there are movements and attempts for promoting self-managed abortion and still India stands as a country with high maternal death owing to unsafe abortion. The MTP Act has failed to completely acquire the right to freedom of one's own body. A comprehensive legal framework promoting inclusiveness and diversity addressing scientific dogma and cultural untouchability are the need of the country. The legal framework should go beyond punitive approach to the reformative denominating the inequalities existing in society. India has great journey ahead for achieving the goal of reproductive autonomy and many more initiatives are needed from the part of government as well as people for the fulfilment of that goal.


References


This article is authored by Afitha Semeer. She was among the Top 40 performers in the Legal Drafting Quiz Competition organized by Lets Learn Law.

 
 
 

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