Author- Manas Nigam, student of National Law School of India University, Bengaluru
Abstract
When a woman is denied abortion services by her doctor, it is extremely likely that she will perform the abortion any way, using unsafe methods
The world’s largest democracy is showing a progressive Trend towards the issue of abortion laws. In a world where developed countries like US have declared abortion laws as unconstitutional, India has amended its medical termination of pregnancy act of 1971 and widened its scope to accommodate largest section of women like unmarried females who are pregnant to get the right of abortion and has increased the upper ceiling of the time limit to get abortion to 24 weeks. But the controversial topic of whether a woman’s decision to terminate her pregnancy without the consent of her husband can be labelled cruel Under the Hindu marriage act was also reviewed by the bench of Bombay High Court comprising Justice Atul Chandurkar and Justice Urmila Joshi Phalke.In this article we will discuss about the different Laws and regulations in India Like medical termination of pregnancy act 1971, medical termination of pregnancy regulations act,2003 and medical termination of pregnancy act, 2021 that govern the Practice of abortion in India.
Keywords – abortion laws, medical termination of pregnancy act,
INTRODUCTION
Abortion is the process of terminating a pregnancy by using surgical or medical methods. Abortion is considered as a human right which should balance the right of the pregnant woman with rights of the unborn child. Reproductive rights are critical to both advancing women’s human rights and promote development. So if abortion is the path to a
woman’s individual right, right to life ,right to liberty and way to happiness then does the unborn child has no rights? A person’s opinion on abortion depends on their personal beliefs, religious teaching and their upbringing. Roe versus wade, 1973 was a landmark decision of the US Supreme Court in which the Court ruled that the Constitution of United States protects a pregnant woman’s right to abortion before the 24–28 week mark. But in 2022 the US Supreme Court overturned the Roe vs wade decision in Dobbs versus Jackson women’s health Organization(2022) in which the court held that the constitution of the United States does not confer a right to abortion. Abortion is illegal in 24 countries where about 90 million women of reproductive age reside.
Types of abortion
Induced abortion– Termination of the pregnancy with the consent of the women
Spontaneous abortion – Loss for which pregnancy before the 20th week, in common language it is known as miscarriage
unsafe abortion- Termination of pregnancy done by a person who is not a train medical practitioner or is conducting the abortion in an unsafe environmenttioner and is conducting the abortion in a safe environment according to the guidelines of WHO
History of abortion laws of India
Abortion in Indian penal code, 1860
Abortion was a punishable offence under section 312 the Indian penal code,1860 with whoever helping the women get abortion was punished with 3 years in prison and/or a fine and the woman who got the abortion done got 7 years of prison and/or a fine. During the decade of the 1960’s, the problem of the back street abortion increased at an exponential rate and this alarmed the government. To tackle this issue, the Government of India instated a committee that was headed by Shantilal Shah and hence this committee came to be known as the Shantilal Shah committee. The task of this committee was to provide suggestions and a basic framework for the abortion law of India. Shantilal Shah committee submitted the report in December 1966 and a medical termination of pregnancy bill was introduced in both Lok sabha and Rajya sabha. This bill was known as medical termination of pregnancy act got passed in August of 1971. This act help the pregnant women to get there pregnancy legally terminated by certified medical practitioners if certain conditions were met. The medical termination of pregnancy act of 1971 was applicable to all of India except for the state of Jammu and Kashmir.
The Medical termination of pregnancy act, 1971
The main objective of this act was to put an end to the practice of unregulated backstreet abortions and to avail the facility of legalised abortion by certified medical practitioners to pregnant women with unwanted pregnancies. Some of the features of the medical termination of pregnancy act of 1971 are
Conditions under which pregnancy can be terminated by a registered medical practitioner under section 3 of the medical termination of pregnancy act, 1971
1. A certified medical practitioner who terminates the pregnancy in accordance with the law should not be held guilty oh any offence in the Indian penal code, 1860 or under any other law for the time being in force.
2. If the length of the pregnancy does not exceed 12 weeks
3. Where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, assessment of two medical practitioners is required.
4. If the continuation of a pregnancy would involve a risk to the life of the pregnant woman or of grave injury to physical or mental health.
5. If there is a substantial risk that if the child were born it would suffer from serious physical or mental abnormalities.
Safe abortion- Abortion services that is provided by A trained Medical practi
Place where pregnancy may be terminated
No termination of pregnancy with this act at any other place than
a) hospital established by government or aided by government
b) a place approved by the government for the purpose of this act
Some limitations of the medical termination of pregnancy act, 1971
Medical termination of pregnancy act 1971 allows abortion only up to 20 weeks, but the foetal abnormalities show only after 18 weeks of pregnancy and hence provide only a two weeks of time period to recognise the anomaly and get the foetus aborted.
The law is based on outdated medical concepts from 1970s, the law should keep up with the current trends in medical science.
The medical termination of pregnancy act in one of its main goals of providing safe abortion facilities and empowering them with the right terminate pregnancy as per their need and situation and not according to some conditions specified by the Medical termination of pregnancy act, 1971.
Some case laws of medical termination of pregnancy act 1971
1. Poornima Devu Mandavkar vs Union of India (2019)
2. Jankiben Ronakbhai Patel vs State (2013)
3. Cry for Life Society vs Union of India (2020)
4. Sundarlal vs vs State of Madhya Pradesh (20
Medical termination of pregnancy act, Amendments, 2002
Following changes were made in the Medical termination of pregnancy act, amendments, 2002 –
Substitution of the word “lunatic” by the words “mentally ill person”
Amendment of section 4 with the goal of giving authority to the government to sanction places for legal abortion of pregnancies and constituting district level committees to be headed by Chief medical officer/ district health officer.
Amendment of section 5 to prescribe punishment of rigorous imprisonment of not less than two years and extending up to seven years to clinics which are not authorised to conduct abortions and to persons who are not registered medical practitioners with required training and expertise.
The National commission for women suggested certain amendments in the act to remove provisions which were discrimatory to women. Taking into consideration the suggestion of the National commission for women and experience gained in the implementation of this act ,the expert group recommended certain ammendments to this act.
Some case laws
1. Dr Sudhir Kumar Brahma vs State of Orissa (2007)
2. Chandigarh administration vs unknown (2009)
3. Snehal Ravikant Mohite vs Union of India (2019)
Medical Termination of Pregnancy Rules, 2003
Some of the features of the medical termination of pregnancy rules, 2003 are –
Defines the formation and composition of the district level committee. States that one member of the committee must be a gynecologist/ surgeon/ anaesthetist and other members from the local medical profession, non-governmental organization and panchayati Raj body of the district given that one member of the committee shall be a woman.
Tenure of this committee shall be for 2 years.
The medical practitioner In the committee must have experience of at least 3 years in his field of expertise.
These rules also specify the conditions under which approval of a place where the medical termination of pregnancy will take place.
According to these rules a place that is approved by the government for the termination of pregnancy, can we inspected by a chief medical officer to confirm that medical termination of pregnancy is being done under the required conditions.
If the Chief medical officer finds the approved place not complying with the guidelines, then the committee has the power to suspend or cancel the approval of the said place.
Medical Termination of Pregnancy (amendment) Act, 2021
Medical termination of pregnancy act of 2021 made certain amendments to keep up with the new developments in the field of Medical termination of pregnancy. This act made some changes to give more rights to women and to make abortions safer. With its vision to provide safe legal abortion services to all women this act also allowed abortions to unmarried women. Some of the features of the medical termination of pregnancy act, 2021 are –
Under this act a pregnancy maybe terminated upto 20 weeks by a married or an unmarried woman provided that opinion of 1 medical practitioner is needed.
That 2021 amendment has included the word “partner” to address the issue of unmarried pregnant women Opinion of two registered medical professional is needed for the pregnancy between 20 to 24 weeks. The duration of the pregnancy shall not apply to the termination of the pregnancy by the medical
practitioner if a medical board has diagnosed some foetal abnormalities. The members of the medical board will have following members –
1. Gynecologist
2. Paediatrician
3. Radiologist or sonologist
4. Such other number of members as maybe notified by the state government
The details of the woman whose pregnancy has been terminated shall not be disclosed except to the person authorised by the law
Case laws
1. Unknown vs State of Manipur & 4 others (2022)
2. Shakya nursing Home vs km Priyanka (2022)
3. Xyz vs state of Madhya Pradesh (2021)
4. Pratibha Gaur vs government of Nct of Delhi & others (2021)
Conclusion
The medical termination of pregnancy act (amendment), 2021 is a big step forward towards achieving the goal of completely eliminating the problem of illegal and backstreet abortions. This act empowers the women to easily avail the facility of legalised abortions. But India still has a long way to go to achieve the goal of empowering women and eliminating illegal and unsafe abortions. A proper mechanism and execution by the authorities is required to make this act truly effective. Government should organize awareness campaigns to make people understand the importance of safe abortions and should help people understand that women as well as the unborn child both have rights and the rights of both should be balanced. There is a long road to our goal as government has to be up to date with the current breakthrough in the field of medical termination of pregnancy and simultaneously, the government has to respect the citizens cultural and ethical beliefs. But, still we can still see that our country is making progress at an exponential race and the goal while still is far yet achievable.
