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Abortion Rights With Respect To The Medical Termination Of Pregnancy (Amendment) Act, 2021

Introduction

Abortion remains one of the most contentious issues in biomedical principles today. It’s a divisive issue across the world, with many different perspectives on whether it’s legitimate or not. The debate is if this is governed by the Constitutional Provisions or if it doesn’t really satisfy the requirements for acknowledgment as a basic human right. Another issue is whether the female has the right to end her pregnancy at any stage or whether the unborn child has a right to life. This article is an attempt to understand the laws regarding abortion in India and the stand of judicial authorities on it. The researcher has also tried to analyze the changes brought for the betterment of women through the MTP (Amendment) Act, 2021.

Abortion-Meaning

Abortion is the process of ending a pregnancy by medical or surgical means.[1] Abortion is the deliberate cessation of a pregnancy at any moment during the pregnancy, from fertilization to full term, by any method. It is a procedure that involves eliminating a growing foetus or embryo from the mother’s uterus in order to avoid its delivery.[2]

When an abortion is performed in good conscience to safeguard the mother’s life, like when the continuation of the pregnancy provokes a severe harm to the mother during pregnancy, it has become legitimate. Whenever an abortions is conducted with the aim of terminating the pregnancy, whether with or without the mother’s agreement, and without concern for the female’s safety, it becomes criminal.

Provisions regarding Abortion

In Section 312 of the Indian Penal Code, 1860, abortion is described as causing miscarriage. It refers to a woman who produces a miscarriage on purpose. This section, though does not contain the term abortion. Abortion would give miscarriage a semblance of importance. Miscarriage officially refers to a pregnancy loss, whereas creating a miscarriage willfully, as defined by Section 312, refers to an illegal abortion.[3] The freedom to an abortion should always be given due significance in comparison to the freedom to have a child and become a mother among the other rights provided to indian women.

The MTP Act of 1971 defines when a licensed medical professional may execute a surgical legal abortion. The law outlines the situations under which a pregnancy may be discontinued, the time restriction for such miscarriages, the site of such terminations, and who is licensed to perform them out. “The act also stipulates that a pregnancy can be terminated within first 12 weeks of pregnancy, and if an abortion is carried during 12 and 20 weeks for a variety of reasons, two or more healthcare experts have to provide their consent.[4]

Physical inability was allowed as a reason for abortion within the MTP Act 1971 only until the 20 week of pregnancy, which she had passed. According to the MTP Act of 1971, the only rationale for obtaining authorization to terminate is when the pregnant woman’s life is in danger.

The IPC and MTP Act encroach on a female’s privacy rights, health, and respect, as guaranteed by Art. 21. Females will pursue illegal abortions if termination on request (for rape or other reasons) is not authorised under controlled circumstances and is prohibited, intruding on their right to health and dignity.

Judicial Recognition

In K.S. Puttaswamy (Retd.) v. Union of India[5] the court observed: “There’s no doubt a woman’s right to make reproductive choices is also a dimension of personal liberty as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating.”

The Court in  Suchita Srivastava & Anr. v. Chandigarh administration[6], had reiterated the need for assent of the pregnant lady for termination or abstaining from it. “The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth- control methods such as undergoing sterilization procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.”

In Sarmishtha Chakraborty v. Union of India[7],the Supreme Court clearly acknowledged a female’s “sacrosanct right to her bodily integrity,” allowing the applicant to remove her 26-week-old foetus. The woman would undergo substantial emotional harm if the pregnancy was continued, according to the court. Over the last decade, the judicial emphasis has changed toward a greater pro-choice approach.

In Meera Santosh Pal v. Union of India[8], a lady in her 24th week of pregnancy submitted a request to the SC requesting a therapeutic abortion of her baby. The Supreme Court ordered the formation of a healthcare panel, which determined that continuing the childbirth would indeed harm the female’s overall health, but also that the unborn child will not be strong enough to survive “extra-uterine life” due to malformations, and thus the SC directed that the female perform a surgical pregnancy termination as per the MTP Act’s regulations.

Medical Termination of Pregnancy (Amendment) Act, 2021

The Abortion Act now covers women who are survivors of sexual assault, rape, or incest, minors, those whose spousal standing alters while pregnancy (widowhood and divorce), and those with bodily limitations, according to the revised guidelines, which were approved in Parliament in March 2021.

It also includes expectant mothers who are psychologically unstable, as well as cases of prenatal deformity with a high risk of being life-threatening. This Act would also allow for the end of pregnancy in circumstances when the newborn, if born, will be severely handicapped due to physical or mental defects.

Under this Act, women who are pregnant in humanistic conditions, disasters, or crisis situations proclaimed by the government shall be able to abort their pregnancy. [9]

As per the new regulations, a state-level medical committee will be established to determine whether a pregnancy may be ended after 24 weeks in situations of foetal deformity and if the foetal deformity poses a significant danger of becoming life threatening, or if the child is born with such physical or mental irregularities that it will be severely impaired.

The Health care Board’s duty is to investigate the lady and her data if she seeks surgical legal abortion, and to render a conclusion on the pregnancy termination or denial of a proposal for abortion within 3 days after receiving the demand. The Board has also been entrusted with ensuring that, where indicated, the abortion operation is handled safely and with adequate psychotherapy within five days of receiving the application for surgical legal abortion.[10]

Protection of privacy of a woman

A licensed healthcare professional may not reveal the identity or other details of a female whose pregnancy has been cancelled within this Act to anyone other than a competent authority by any current legislation. Whoever violates the terms of sub-section (1) is subject to prison for up to one year, a fine, or both. as may be provided by rules.[11]

Conclusion

The MTP Act is a reformist law that has provided females in India a notion of abortion choice and independence, and the Supreme Court has reinforced this attitude in other decisions. At a time when several countries are striving to abolish medical abortion regulations, India has continued to hold and improve the law around medical abortion. The Act is an attempt to change and incorporate some provisions that could be beneficial for pregnant ladies.

Amidst several restrictions and gaps, which it is anticipated would be filled by judicial decisions, the Act can be considered as an endeavour to reform and enhance preexisting medical termination of pregnancy regulations. Furthermore, local organisers must conduct door-to-door awareness drives to enlighten remote women and men, which must be strictly implemented with the assistance of local law enforcement. To eradicate the stigma connected with abortion, post-abortion treatment must be strengthened, and members of the family and Panchayat level authorities must be counselled on a frequent basis. When abortion is not an option owing to a variety of factors, the authorities should create options in which the parents or rape survivors can place the child for adoption promptly after delivery.[12]

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[1] Law on Abortion, VIKASPEDIA (Oct. 20, 2021), https://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/policies-and-acts-1/law-on-abortion.

[2] Sannaya, Abortions Laws in India, LEGAL SERVICE INDIA (Oct 17, 2021), https://www.legalserviceindia.com/legal/article-724-abortion-laws-in-india.html.

[3] Sneha Mohanty, Abortion Laws in India, LEGAL SERVICE INDIA (Oct 16, 2021), https://www.legalserviceindia.com/legal/article-1121-abortion-laws-in-india-.html.

[4] Section 3, MTP ACt

[5] (2017) 10 SCC 1.

[6] (2009) 9 SCC 1.

[7] (2018) 13 SCC 339.

[8] (2017) 3 SCC 462.

[9] Shruti Niraj, New Abortion rules in India: Abortion limit increased, INDIA TODAY (Oct 18, 2021), https://www.indiatoday.in/information/story/new-abortion-rules-in-india-limit-increased-to-24-weeks-of-pregnancy-in-special-cases-check-who-all-are-eligible-1864695-2021-10-14.

[10] Centre notifies new rules that allow abortion till 24 weeks of pregnancy for certain categories of women, THE HINDU (Oct 13, 2021), https://www.thehindu.com/news/national/new-rules-allow-abortion-till-24-weeks-of-pregnancy-for-certain-categories-of-women/article36982316.ece#:~:text=Photo%20Credit%3A%20Reuters-,The%20new%20rules%20are%20under%20the%20Medical%20Termination%20of%20Pregnancy,for%20certain%20categories%20of%20women.

[11] Law on Abortion, VIKASPEDIA (Oct. 20, 2021), https://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/policies-and-acts-1/law-on-abortion.

[12] Pyali Chatterjee, A comparative Study of termination of pregnancy Act, 1971 with recent Medical Termination of Pregnancy Act, 1971 with Recent Medical Termination of Pregnancy (Amendment) Bill, 2020 Through Judicial Pronouncement, 20 MLU 284, 288, (2020).

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Prakhar Singh
Prakhar Singh
Prakhar is a graduate from R.M.L.N.L.U. and is currently pursuing his masters from the Tata Institute of Social Sciences.
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