Right to Abortion

PREFACE

Abortion consists of a situation wherein a foetus inside a woman’s body is medically discarded.  As would be apparent by the description, the procedure is very contentious with various social groups equating it with ‘murder’ while others see it as a women’s rights issue. The logic for them is that no outer person can choose what a person (here, women) does to her body and hence also cannot choose what happens to ‘a thing’ inside her body. There also exists a dichotomy within this concept. Abortions done in case of a medical emergency or when there is harm possible to the mother are usually accepted in developed countries. However, abortions without medical reasons land on less solid ground and face a lot fiercer opposition.

Recently in the USA the landmark judgement of Roe v Wade was overturned by the Supreme Court, allowing states to choose whether to legalise abortion. The above-mentioned divergence was seen strongly in the following actions. Many progressive states were quick to announce full legalisation. However, other states like Florida and Texas, went as far as to ban any and all abortions, not even leaving a window for medical emergencies!

This sent shockwaves across the world. While some countries took this chance to follow in stead and disallow abortions, other, like France, chose to strengthen the right. This essay will look into the Indian stand point on abortions

EVOLUTION OF ABORTION LAWS IN INDIA 

Before 1971, abortion in India was heavily restricted under Section 312 of the Indian Penal Code, 1860. This law criminalized intentional miscarriage, allowing abortion only to save the woman’s life. Any other instance of abortion was considered a criminal offense. Providers faced up to three years in prison and/or a fine, while women seeking the procedure could be imprisoned for up to seven years and/or fined. During the 1960s, abortion laws were liberalized in many countries, similar to France, India began reconsidering its stance. In 1971, the same year as the Veil act the Medical Termination of Pregnancy act was passed.

This landmark Act established a legal framework for abortion in India, allowing the termination of pregnancy up to12 in all cases and 20 weeks separately under specific conditions. These conditions included situations where the pregnancy posed a risk to the woman’s life or could cause severe injury to her physical or mental health also including contraceptive failures and forced pregnancies. This act was similar in nature to the veil act with the major difference being the time. While France allowed termination till 24 weeks, India allowed 20 and that too with caveats. Such caveats were not present in Frances act.

The Act required the woman’s consent for the abortion. In cases involving minors or women with mental illness, the guardian’s consent was necessary. For pregnancies up to 12 weeks, the opinion of one RMP sufficed. For pregnancies between 12 and 20 weeks, the opinions of two RMPs were required.

India too had a 21^st century revitalization of the MTP act. Just like France, more liberalization and easier access was sought to be delivered. Another facet in India was that more women that earlier would not be allowed to terminate, were included in the act.

In 2002, the MTP Act was amended to improve implementation and increase accessibility, especially in the private health sector. The amendments decentralized the approval process for private facilities to the district level. The DLC was empowered to approve these facilities for MTP services. The term ‘lunatic’ was replaced with ‘mentally ill person’ to reflect a more sensitive understanding of mental health. Additionally, stricter penalties were introduced for non-compliance to ensure the safety and proper implementation of abortion services.

RECENT DEVELOPMENTS

The Indian government recognized the challenges women faced in accessing safe abortion services and initiated a review of the Medical Termination of Pregnancy (MTP) Act. Between 2006 and 2010, expert groups met to develop strategies for improving access. A national consultation in 2013 highlighted the need for amendments, and by 2014, the Ministry of Health and Family Welfare shared the Medical Termination of Pregnancy Amendment Bill 2014 with the public. The proposed changes aimed to make abortion services safer and more accessible for women. This is where India diverged from France. The culture in India has been much slower to accept abortions. It hence has not been given the status of a constitutional right and remains statutory. The problem of female foeticide is special to India. That has made introduction of more stringent conditions necessary.

One of the major recommendations was to expand the base of legal MTP providers. This included practitioners with degrees in Ayurveda, Siddha, Unani, or Homeopathy, as well as nurses and Auxiliary Nurse Midwives. This too is special to India as ayurveda and its sibling forms are not considered actual medicine elsewhere. The amendments also suggested increasing the gestational limit for abortions due to foetal abnormalities beyond 20 weeks. The changes sought to increase the acts reach.

The MTP Amendment Bill 2020, based on the proposal, was as the MTP Amendment Act 2021. This act brought significant changes: it allowed unmarried women to seek abortions on grounds of contraceptive failure, earlier only a right through pronouncement and it permitted terminations at any stage of pregnancy for severe foetal anomalies diagnosed by Medical Boards. This brought India on par to the French right on almost all facets.

Confidentiality provisions were also strengthened, allowing only authorized persons to access details of terminated pregnancies. This was done to lessen chances of female foeticide. The new MTP Rules announced in October 2021 extended the gestational period for terminating pregnancies with one doctor’s opinion from 12 weeks to 20 weeks, including for unmarried women, finally bringing India on the level of other developed countries like France. The period for termination with two doctors’ opinions was extended to 24 weeks for special categories, and state-level Medical Boards, present in every district were assigned to handle requests beyond 24 weeks for foetal anomalies. These developments mark a significant step towards ensuring safer and more accessible abortion services for women in India. However, many post 24-week cases still take long dues with cases in the supreme court causing distress to the women.