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  • Vanshika Singh , Khushi Jain, Abhilasha Rajpurohit and Pawan Sharm

ABORTION LAW IN INDIA

Written by : Vanshika Singh , Khushi Jain, Abhilasha Rajpurohit and Pawan Sharma

University: Vivekananda Global University Jaipur, LLB 

Abstract 

The abortion laws in India are governed by the Medical Termination of Pregnancy (MTP) Act, 1971. This legislation permits the termination of pregnancies under specified conditions, such as the risk to the mother's life or health, fetal abnormalities, or contraceptive failure. However, recent discussions have emerged around the need for amendments to address evolving societal perspectives and ensure women's reproductive rights. This research abstract highlights key aspects of India's abortion laws, examining their historical context and contemporary implications for women's healthcare and autonomy.

Research Methodology

Begin by reviewing existing literature on abortion laws in India. Explore academic journals, legal databases, and relevant government publications to understand the historical context and current status. Examine the Indian Penal Code, the Medical Termination of Pregnancy Act, and other relevant legislation. Analyze amendments and court decisions that may have impacted abortion laws. Investigate specific legal cases related to abortion in India. Understand the judgments, legal arguments, and implications of these cases on the interpretation and enforcement of abortion laws. Compare India's abortion laws with those of other countries.

 

Statement of Problem

The statement of the problem regarding abortion laws in India could address issues such as the need for comprehensive and uniform regulations, ensuring women's reproductive rights, addressing unsafe abortion practices, and considering the socio-cultural factors influencing women's access to safe and legal abortion services.

Research Aim and Objectives

AIM:- To analyze and understand the current state of abortion law in India, exploring its legal framework, historical context, and implications for women's reproductive rights.

OBJECTIVES:-

1 Examine the legal provisions surrounding abortion in India, including relevant statutes and regulations.

2. Investigate the historical evolution of abortion laws in the country and the factors influencing their development.

3. Assess the impact of abortion laws on women's access to safe and legal abortion services.

4. Explore societal attitudes and cultural influences that shape perceptions of abortion in India.

5. Identify challenges and barriers faced by women in accessing safe abortion services, including geographical and socioeconomic factors.

6. Evaluate the effectiveness of existing legal provisions in safeguarding women's reproductive rights.

7. Examine any recent amendments or proposed changes to abortion laws and their potential implications.

8. Provide recommendations for potential improvements or reforms in the abortion law to better align with women's reproductive health and rights.

HYPOTHESES 

The abortion laws in India significantly influence women's access to safe and legal abortion services, impacting their reproductive rights and healthcare outcomes.


INTRODUCTION

Abortion laws in India have undergone significant changes over the years, reflecting the evolving societal perspectives on reproductive rights and women's health. The legal framework surrounding abortion is crucial in determining the accessibility, safety, and equity of reproductive healthcare services. This research aims to explore the historical development of abortion laws in India, analyzing key legislative milestones and their impact on women's reproductive choices. By examining the current legal landscape, we seek to understand the complexities and challenges surrounding abortion rights, as well as the implications for women's autonomy and healthcare outcomes in the country.

Chapter 1:- Abortion law in India

India does not have a single, comprehensive abortion law. Abortion laws are primarily governed by the Medical Termination of Pregnancy (MTP) Act, 1971.

1.1:- Conditions for Abortion: Specifies the conditions under which a pregnancy can be terminated. Sets limits on the gestational age for legal abortions.

1.2:- Authorized Providers: Identifies who can perform abortions, such as registered medical practitioners.

1.3:- Places of Abortion: Designates approved facilities where abortions can take place.

1.4:- Consent Requirements: Outlines the consent requirements for women seeking abortion.

1.5:- Record-Keeping: Addresses the maintenance of records related to abortion procedures.

Chapter 2:- India, abortion laws are primarily governed by the Medical Termination of Pregnancy (MTP)

2.1:- Preliminary:- Defines the title, extent, and commencement of the Act.

2.2:- Conditions for the termination of pregnancy:- Outlines the circumstances under which a pregnancy may be terminated, including the length of the gestation period, risks to the physical or mental health of the mother, and the possibility of fetal abnormalities.

2.3:- Counseling:- Emphasizes the importance of counseling for women seeking an abortion and outlines the procedures for obtaining consent.

2.4:- Offenses and penalties:- Specifies penalties for contravening the provisions of the Act, including unauthorized termination of pregnancy.

2.5:- Miscellaneous:- Covers miscellaneous provisions, including the protection of the privacy of women seeking abortion.

Chapter 3:- Analyzing abortion laws in India

3.1:- Legal Framework:- Detailed examination of relevant laws, such as the Medical Termination of Pregnancy Act, 1971, and subsequent amendments.

3.2:- Grounds for Abortion:- Exploration of the specific circumstances under which abortion is legally permissible. Analysis of the role of gestational limits and health considerations.

3.3:- Healthcare Providers and Facilities:- Examination of the responsibilities and roles of healthcare professionals in performing abortions. Assessment of the accessibility and quality of abortion services across different regions.

3.4:- Challenges and Controversies:- Identification and discussion of key challenges in the implementation of abortion laws. Analysis of controversies surrounding issues like sex-selective abortions and conscientious objection.

3.5:- Public Awareness and Education:- Assessment of the awareness levels among the public regarding abortion laws. Exploration of the role of education in promoting understanding and compliance with the legal framework.

3.6:- Comparative Analysis:-Comparative study of abortion laws in India with international norms and standards. Identification of areas where India's laws may differ or align with global practices.

3.7:- Impact on Reproductive Rights:- Evaluation of how the existing abortion laws contribute to or hinder women's reproductive rights. Analysis of the socio-economic factors influencing access to safe and legal abortion.

3.8:- Recent Developments:- Examination of any recent changes, amendments, or judicial decisions impacting abortion laws in India. Consideration of the implications of these developments on women's healthcare.

Chapter 4:- Critical evaluation on Abortion law

The Act allows for the termination of pregnancies under certain conditions, such as risk to the mother's life or physical or mental health, fetal abnormalities, or pregnancies resulting from rape.

4.1:- Limited Autonomy: The MTP Act places restrictions on the gestational age at which abortions can be performed, limiting women's autonomy over their reproductive choices.

4.2:- Marital Status Bias: The Act places different conditions based on a woman's marital status, which some view as discriminatory. Unmarried women face more stringent requirements for abortion compared to married women.

4.3:- Doctor-Centric Approach: The law relies heavily on the opinion of medical practitioners, potentially leading to subjective interpretations and varying standards of care.

4.4:- Stigma and Access Issues: Despite legal provisions, social stigma around abortion persists, hindering women's access to safe and legal procedures.

4.5:- Inadequate Implementation: Implementation of the MTP Act varies across states, leading to disparities in access to safe abortion services. A critical evaluation should address issues of enforcement, awareness, and standardization.

while the MTP Act in India provides a legal framework for abortion, a critical evaluation calls for a more woman-centric, rights-based approach that addresses issues of autonomy, discrimination, and access to ensure the comprehensive well-being of women.

Chapter 5:- Current issues

the Medical Termination of Pregnancy (Amendment) Act of 2021 came into force, extending the upper gestational limit for abortion from 20 to 24 weeks. Although the amendment did not recognise abortion on demand as a pregnant person’s right, it was heralded as the next step in making Indian abortion laws more progressive. The amendment was a response to the Indian courts receiving requests to access safe medical support from many women with unwanted pregnancies beyond the permissible gestation period.

Two contradictory decisions

In September 2022, the Supreme Court granted a petitioner permission to terminate her 22-week pregnancy in a X v Principal Secretary. In a decision that was celebrated among reproductive rights advocates, the Court found that any distinction made between the rights enjoyed by a person based solely on marital status is unconstitutional. Additionally, it recognised the unmet needs of marital rape survivors in situations of unwanted pregnancies.

The judgement held that the decision to carry a pregnancy to term or terminate it is firmly rooted in a woman’s right to her bodily autonomy and her ability to choose her path in life. It also recognised that an unwanted pregnancy can have serious negative effects on a woman’s life, such as disrupting her education, career, and mental well-being.

Despite fulfilling the legal requirements of mental health concerns, her reproductive rights were measured against a checklist for eligibility for termination beyond 24 weeks, and were found wanting. The Court noted that she did not attract Section 3(2B) protections which covered sexual assault survivors, minors, widowed or divorced persons, disabled persons, mentally ill persons, foetal abnormality or pregnancy during humanitarian crises. She also did not attract Section 5 protections which allow termination of pregnancy in cases where it is necessary to save the life of the woman.

But in 2023, the positive developments of 2021 and 2022 appear to have been overshadowed by anti-reproductive rights sentiments. A year after the judgement in X v Principal Secretary, this pro-rights agenda received a major setback and revealed how much more there is to be done for India to transition into a truly liberal and right-based jurisdiction for medical termination of pregnancies.

Chapter 6:- Judgements on abortion laws in India

The Supreme Court while delivering a landmark judgment emphasized that in a gender-equal society, it is imperative that interpretation of the MTP Act and Rules consider current social realities. Speaking for the bench, Justice Chandrachud noted, “A changed social context demands a readjustment of our laws. Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice”. This judgment and the recent Amendment Act together significantly expanded the scope of abortion rights in India.

First, the Court held that every pregnant person in India has a right to reproductive decisional autonomy, including transgender and gender-variant persons. Everyone is entitled to reproductive health, including access to safe, effective, and affordable methods of family planning, access to contraception, and sex education. Further, the Court acknowledged that the MTP Act is a provider-centric law that does not focus on the rights of pregnant persons. Since the right to access abortion depends on approval from a RMP, denial of services compels women to approach courts or seek abortion in unsafe conditions. RMPs are reluctant to provide abortion services due to fear of prosecution under the IPC, which has a chilling effect on the behaviour of healthcare service providers. Therefore, the Court held that the decision to terminate a pregnancy vests solely with the pregnant person.

Second, the Court expanded the scope of access to abortion services from 20 to 24 weeks, taking note of the factors and circumstances changing the material realities of women and how individuals’ unique circumstances cannot be exhaustively accounted for by the law.

Third, the Court clarified that rape as grounds for abortion includes marital rape. The Court noted, “It is not inconceivable that married women become pregnant as a result of their husbands having ‘raped’ them.” It is important to clarify that the Court noted that rape should include marital rape for the purpose of the MTP Act, and that reading the provisions of the MTP Act in a manner that excludes married women who may be pregnant as a result of forced or abusive sexual conduct of their husbands would compel them to have children with abusive partners.

Fourth, the Court empathetically noted that the MTP is a beneficial legislation meant to enable access to abortion services for all pregnant persons. Therefore, the RMPs should offer abortion services without any extra-legal conditions like spousal or family consent, documentation requirement or judicial authorisation.

Chapter 7:- Different Acts on Abortion law

●       Pre-1960s: Illegal Status of Abortion

Abortion was illegal and punishable under Section 312 of the Indian Penal Code (IPC) before the 1960s.

●       1964: Formation of Shantilal Shah Committee

It was set up to examine abortion-related matters and the necessity of laws around abortion in India.

The Committee recommended liberalization of abortion laws to reduce unsafe abortions and maternal mortality.

●       1971: Introduction and Passage of MTP Act

MTP Act was introduced and passed by Parliament in August 1971, based on the recommendations of the Shantilal Shah Committee.

The MTP Act allowed abortion up to 20 weeks of pregnancy and granted immunity to doctors performing abortions in line with its provisions.

The MTP Act allowed termination of pregnancy by a medical practitioner in two stages.

For termination of pregnancy up to 12 weeks from conception, the opinion of one doctor was required.

For pregnancies between 12 and 20 weeks old, the opinion of two doctors was required

●       2002: Brief Amendment for Medical Abortion Pills

The MTP Act was briefly amended in 2002 to allow the use of medical abortion pills, mifepristone and misoprostol.

●       2021: Amendment to Extend Abortion Limit

The MTP Act was amended in 2021, extending the abortion limit from 20 to 24 weeks.

The amended MTP Act allowed the termination under the opinion of one doctor for pregnancies up to 20 weeks.

For pregnancies between 20 and 24 weeks, the amended law requires the opinion of two doctors.

The MTP Act (amendment) specified seven categories of women eligible for termination between 20 and 24 weeks of pregnancy:

Survivors of sexual assault or rape or incest;

Minors;

Change of marital status during the ongoing pregnancy (widowhood and divorce);

Women with physical disabilities

Mentally ill women including mental retardation

The foetal malformation

Women with pregnancy in humanitarian settings or disaster or emergency situations.

Conclusion:-

The abortion law in India, governed by the Medical Termination of Pregnancy Act, allows for safe and legal termination of pregnancies under specified conditions. It reflects a balance between reproductive rights and maternal health, promoting women's autonomy while ensuring medical supervision. However, ongoing discussions and potential amendments aim to address evolving societal needs and ensure comprehensive reproductive healthcare. Abortion in India was made legal after the enactment of the MTP Act, 1971. Before this, it was a punishable offence under Sections 312-316 of the IPC. The 1971 Act allowed termination of pregnancy under certain specific conditions specified under the Act. Recognizing a woman’s right to reproductive choices is an essential part of a free country, and thus, providing laws and regulations in favour of the same is very important. A woman’s right to safe abortion is desirable, and it is of utmost importance that the state must not interfere in the same, except in exceptional cases. The progressive approach taken by India in issues relating to abortion is commendable since we have much more liberal laws than most countries, yet we have miles to go. It is seen that in several incidents, easy access to abortion has just been a privilege that women in urban areas enjoy. Women in rural areas still do not have access to better facilities for the termination of unwanted pregnancies. Even the new amendment fails to consider certain important aspects of the laws that must be inserted or amended, as discussed in the article. Making safe abortion easily accessible to every woman, irrespective of any factor like her marital status, background, etc., is of paramount necessity. 

Bibliography (Refrences)

  1. TIMES OF INDIA by

2.   PWONYLASIS

3.   IPLEADERS

4.   LAWBOTPRO

5.   MANUPATRA

7.   LAWSTUDIES

8.    WIKIPEDIA

 

 

 

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