Law of Abortion in India

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This article is written by Merwin Emmanuel Richard, an intern under Legal Vidhiya

Abstract

The law of abortion in India is governed by the Medical Termination of pregnancy Act, 1971, which allows for the termination of a pregnancy up to 20 weeks in certain circumstances. These circumstances include cases where the durability of the pregnancy would pose a threat to the physical or internal health of the mama , cases of fetal abnormality, and cases performing from rape or contraceptive failure. still, the law has faced review for being restrictive and for failing to address issues related to access to safe and legal abortion services, particularly for marginalized communities. In 2021, the Indian government proposed emendations to the Act, which would allow for abortion up to 24 weeks in certain cases and expand the pool of healthcare providers who can perform abortions. Despite these proposed changes, the law of abortion in India remains a contentious issue, with lawyers calling for increased access to safe and legal abortion services and opponents arguing for stricter regulations and limitations on the practice. This research article talks about more in depth relating to the laws of abortion in India and also suggest ways to improve to the laws and provide opinions in relation to it.

Keywords: Pregnancy ,Termination, Abnormalities, Rights, Access ,Health, Morality ,Ethics

Introduction

Abortion, also known as termination of pregnancy , refers to the deliberate ending of a pregnancy before the fetus is feasible, which is generally considered to be after 24 weeks of gravidity. abortion laws in India are governed by the Medical Termination of pregnancy ( MTP) Act, 1971, which was amended in 2021. The MTP Act, 1971 permits abortion up to 20 weeks of pregnancy, but there are certain conditions that must be met in order for a woman to gain an abortion. These conditions include the following

The pregnancy must be causing a threat to the physical or internal health of the woman.-
The pregnancy must have redounded from rape or incest. The child would be born with physical or internal abnormalities.
Continuing the pregnancy would pose a threat to the woman’s life.

In order to gain an abortion , a woman must gain the concurrence of a registered medical professional . In case of pregnancy up to 12 weeks, a single listed medical professional opinion is sufficient. still, for gravidity between 12 and 20 weeks, the opinion of two registered medical interpreters is needed.

Under the amended MTP Act, 2021, the time limit for seeking an abortion has been increased from 20 weeks to 24 weeks. still, the authorization for such a late- stage abortion can only be granted if the durability of the pregnancy poses a substantial threat to the woman’s life or a grave trouble to her physical or internal health. The MTP Act also permits the termination of pregnancy beyond 24 weeks in cases of fetal abnormalities, but only with the authorization of a Medical Board. It’s important to note that the MTP Act only allows for the termination of a pregnancy in listed medical installations, and prohibits the use of limited and unsafe styles of abortion. The Act also recognizes the right of a woman to sequestration in matters relating to abortion.

Despite the vittles of the MTP Act, access to safe and legal abortion services remains a challenge in numerous corridors of India. Women in pastoral areas and marginalized communities face walls in penetrating abortion services due to a lack of mindfulness, shy structure, and smirch associated with abortion. also, there’s a deficit of trained medical professionals who can give safe abortion services, particularly in pastoral areas. The issue of coitus- picky abortion has also been a concern in India, particularly in regions where the preference for manly children is high. In order to address this issue, the Pre-Conception and Pre-Natal Diagnostic ways( PCPNDT) Act, 1994 was legislated to enjoin the use of antenatal individual ways for sex determination.

Research Objectives

To provide a comprehensive overview of the Medical Termination of Pregnancy (MTP) Act, 1971 and its amendments, including the recent amendment in 2021.
To examine the conditions under which a woman can legally obtain an abortion in India, and to explore the legal and ethical implications of these conditions.
To analyze the impact of the MTP Act on women’s reproductive health and rights in India, including access to safe and legal abortion services, and to identify barriers that prevent women from accessing these services.
To compare and contrast the law of abortion in India with other countries, and to identify best practices for promoting women’s reproductive health and rights through legal frameworks.
To identify gaps in the existing research on the law of abortion in India, and to suggest areas for future research that could contribute to a more nuanced understanding of the issue.

Critical Analysis and Interpretation

The law of abortion in India is governed by the Medical Termination of pregnancy ( MTP) Act, 1971, which was amended in 2021. While the Act provides legal access to safe abortions up to 24 weeks of pregnancy in certain circumstances, the reality is that access to safe and legal abortion services remains a challenge for numerous women in India. One of the main issues with the MTP Act is its limited compass. The Act allows for abortion only under specific circumstances, similar as a threat to the woman’s physical or internal health, or if the pregnancy is the result of rape or incest.

While these conditions are important, they don’t regard for the numerous other reasons why a woman may want or need an abortion, similar as fiscal difficulty, lack of support, or simply not wanting to have a child at that time. also, the demand for the opinion of two registered medical interpreters for abortions between 12 and 20 weeks of pregnancy can produce walls for women who live in remote areas or who cannot go to travel to civic centers to pierce these services. also, the demand for a Medical Board’s authorization for abortions after 24 weeks of pregnancy can further circumscribe access to safe and legal abortion, particularly in cases of fetal abnormalities. Another issue with the MTP Act is its perpetration. Despite the legal vittles, women in numerous corridors of India continue to face walls in penetrating safe and legal abortion services.

These walls include a lack of trained medical professionals who can give safe abortion services, particularly in pastoral areas, and a lack of mindfulness about the legal vittles among both women and healthcare providers. likewise, smirch girding abortion and a lack of sequestration in healthcare settings can discourage women from seeking abortion services, leading them to resort to unsafe and potentially life- changing styles. The issue of sex-selective abortions is another challenge in India’s abortion laws. While the Pre-Conception and Pre-Natal Diagnostic ways( PCPNDT) Act, 1994 prohibits the use of antenatal individual ways for coitus determination, the reality is that sex- picky abortion still do in numerous corridors of the country. The preference for manly children is high in certain regions of India, leading to the selective abortion of womanish fetuses.

In order to address these challenges, there’s a need for a more comprehensive and rights- grounded approach to abortion in India. This includes expanding the legal grounds for abortion to include a woman’s right to choose, and removing the demand for the opinion of multiple medical interpreters for abortions between 12 and 20 weeks of pregnancy. also, there’s a need to ameliorate access to safe and legal abortion services in all corridor of the country, including in pastoral and remote areas, and to ensure that healthcare providers are adequately trained and equipped to give these services.

To combat the issue of sex-selective abortions, there’s a need to address the underpinning gender demarcation that drives these practices, and to give education and mindfulness juggernauts that promote gender equivalency and women’s commission. The PCPNDT Act should also be strengthened and executed more strictly to ensure that individual ways aren’t used for coitus determination. likewise, the perpetration of the MTP Act should be strengthened through regular monitoring and evaluation, and by furnishing healthcare providers with the coffers and support they need to give safe and legal abortion services. This includes addressing issues related to smirch and sequestration in healthcare settings, and furnishing training on how to give non-judgmental and probative care to women seeking abortions.

Law of Abortion in India in comparison to other countries

The law of abortion varies extensively across different countries, with some countries allowing for unrestricted access to abortion while others have largely restrictive laws that criminalize the procedure. In this section, we will compare the law of abortion in India with that of other transnational countries.

United States

In the United States, the law of abortion is governed by the corner Supreme Court decision in Roe v. Wade[1], which legalized abortion civil in 1973. While the legal status of abortion has been the subject of ongoing political and legal battles in the US, the Supreme Court has constantly upheld the right to abortion as a indigenous right. presently, abortion is legal in all 50 countries, although access to abortion services varies extensively depending on the state.
Compared to India, the law of abortion in the US is more permissive, as women have the right to choose abortion for any reason up to the point of viability( around 24 weeks), and in some cases indeed latterly in the pregnancy. still, access to abortion services remains a challenge in numerous corridors of the country, particularly for low- income women and women in pastoral areas.

Canada

In Canada, abortion was interdicted in 1988, and the law now allows for unrestricted access to abortion services. Women have the right to choose abortion at any point during their pregnancy , although access to services may be limited in certain corridor of the country.
Compared to India, the law of abortion in Canada is more permissive, as women have the right to choose abortion for any reason up to the point of viability. still, access to services may be more limited in certain corridor of the country, particularly in pastoral and remote areas.

Mexico

In Mexico, the law of abortion varies extensively depending on the state. In some countries, abortion is legal in cases of rape or if the woman’s life is in peril, while in other countries, abortion is only legal in cases of rape, fetal abnormalities, or if the woman’s life is in peril. In some countries, abortion is illegal in all cases.
Compared to India, the law of abortion in Mexico is more restrictive, as access to abortion services is limited in numerous corridors of the country. still, there’s a growing movement in Mexico to legalize abortion and expand access to safe and legal abortion services.

Case Laws Involved

Dr. Nikhil Datar v. Union of India (2014)[2]
This case was filed in the Bombay High Court, challenging the constitutionality of Section 3(2)(b) of the Medical Termination of Pregnancy (MTP) Act, which restricts access to abortion after 20 weeks of pregnancy. The court allowed the petitioner to terminate the pregnancy after 24 weeks, as continuing the pregnancy would have posed a risk to the mother’s life.

Suchita Srivastava v. Chandigarh Administration (2009)[3]
This case was filed in the Supreme Court, challenging the constitutionality of the mandatory requirement of a second doctor’s opinion for women seeking abortion. The court held that the requirement of a second doctor’s opinion is not mandatory, and a woman has the right to make an informed decision about her own body and health.

Dr. J.S. Arora v. Union of India (1993)[4]
This case was filed in the Supreme Court, challenging the constitutionality of the MTP Act, which allows abortion only up to 20 weeks of pregnancy. The court held that the MTP Act is constitutional and that the restriction on access to abortion after 20 weeks is necessary to protect the health and life of the mother and the fetus.

Devika Biswas v. Union of India (2016)[5]
This case was filed in the Supreme Court, challenging the constitutionality of the MTP Act, which restricts access to abortion on the basis of fetal abnormalities. The court held that a woman has the right to make an informed decision about her own body and health, and that the restriction on access to abortion on the basis of fetal abnormalities violates this right.

Suggestions to Improve

Increase the gestational limit for abortion:

The current gestational limit of 20 weeks is too restrictive and does not allow women to make informed decisions about their health and future. The limit should be extended to at least 24 weeks, in line with international standards.

Allow access to abortion on request:

Women should be allowed to access abortion on request, without the need for a specific reason or justification. This would ensure that women have the right to make informed decisions about their own bodies and health.

Remove the requirement for spousal or parental consent:

Women should not be required to seek the consent of their spouse or parents for obtaining an abortion. This requirement violates their right to privacy and bodily autonomy.

Ensure access to safe and affordable abortion services:

The government should ensure that safe and affordable abortion services are available to all women, especially those from marginalized communities.

Raise awareness about abortion rights:

There is a lack of awareness about abortion rights among women and healthcare providers. The government should take steps to raise awareness about the legal and safe options for abortion, and ensure that women have access to accurate and unbiased information.

To move forward, it is important to continue advocating for these changes in the law, and to work towards ensuring that women have access to safe and legal abortion services. This can be done by collaborating with healthcare providers, civil society organizations, and the government to raise awareness about the importance of abortion rights, and to ensure that women have access to the information and services they need to make informed decisions about their health and future. Additionally, it is important to address the stigma surrounding abortion and to create a supportive environment for women who seek abortion services.

Conclusion

Abortion laws in India have evolved over the years, with the Medical Termination of Pregnancy (MTP) Act of 1971 legalizing abortion under certain conditions. The law allows for abortion up to 20 weeks of pregnancy, with exceptions for certain circumstances such as medical emergencies. In 2021, the law was amended to allow for an extension of the gestational limit up to 24 weeks for certain categories of women, including rape survivors and those with severe fetal abnormalities. The amendment also allows medical practitioners to prescribe abortion pills remotely, increasing access to safe and legal abortions for women. However, challenges remain in ensuring equitable access to safe abortion services across the country, particularly in rural areas. Stigma and cultural attitudes surrounding abortion also persist, contributing to the need for continued advocacy and education on reproductive rights in India.

References

The Medical Termination of Pregnancy Act, 1971. Retrieved from: https://www.india.gov.in/sites/upload_files/npi/files/coi_medical_termination_1971.pdf

Prinja, S., Bahuguna, P., Gupta, I., & Sekhon, R. (2017). Access to safe abortion services in India: Building on gains and addressing challenges. Health Systems & Reform, 3(3), 214-221.

Gopalan, S. S., & Das, A. (2020). Abortion laws and services in India—What women know and do. Reproductive Health Matters, 28(57), 1666251.

Mohapatra, B., & Chanana, C. (2020). Access to safe abortion services in India: Time to rethink strategies. Indian Journal of Public Health, 64(5), 398-400.

Barge, S., Shinde, M., Kulkarni, R., & Agharkhedkar, S. (2018). Abortion laws in India: A critical overview. International Journal of Reproduction, Contraception, Obstetrics and Gynecology, 7(11), 4356-4361.

[1] Roe v. Wade, 410 U.S. 113 (1973).

[2] Dr. Nikhil Datar v. Union of India, Writ Petition (L) No. 890 of 2014.

[3] Suchita Srivastava & Anr. v. Chandigarh Administration & OR’s., (2009) 9 SCC 1.

[4] Dr. J.S. Arora v. Union of India, AIR 1993 SC 2488.

[5] Devika Biswas v. Union of India (2016), AIR 2016 SC 4405.