ABORTION LAWS IN INDIA. IS ABORTION LEGAL IN INDIA?

Abortion means the termination of pregnancy by removal of an embryo or fetus from the uterus in order to end a pregnancy.

Currently abortion laws are very much in news especially after the US Supreme Court overruling the landmark 1973 Roe v Wade decision which gave women the right to abortion. But after the overruling of this precedent now abortion is banned in many states in the US.

This judgement created a stir of controversies around the world. It snatched away the right of a women of her personal rights over her body, her decision over her body is now a states decision and not a constitutional right anymore.

So now comes the questions that what are the Abortion laws in India? Is it legal? Can a women get an abortion in India?

The abortion law mainly comes under the Medical termination of pregnancy [MTP) Act 1971. It gave the women the right to abortion up to 20 weeks of pregnancy if-

If the pregnancy imposes a substantial threat to a woman’s life and cause physical and mental damage.
If the expected child will face a threat to life or will be physically or mentally handicapped.
If pregnancy is due to rape
If pregnancy is a result of failed contraceptive.

An abortion is to be performed only by doctors with specialisation in gynaecology or obstetrics.

According to medical termination rules (2003) abortion can be done with the help of abortion medicine misoprostal to medically terminate the pregnancy upto seven weeks.

Medical Termination Amendment Act (2021)-

Under the medical termination of pregnancy act 1971 abortion was permitted if it is based on medical opinion and fulfil at least one of the following categories-

If the pregnancy would involve the risk to the life of the pregnant women.
If pregnancy results in injury to a women physical or mental health.
If unborn child suffers from a serious mental or physical deformity.

This amendment increased the upper gestational limit for abortion from 20 weeks to 24 weeks for pregnant women.

Earlier a registered practitioner was allowed to perform an abortion on fetus till 12 weeks. If it was from 12 to 20 weeks, the opinion of two medical practitioners was a must.

But now after the amendment it has been changed- upto 20 weeks only opinion of one medical practitioner is enough and for 20 to 24 weeks opinion of two medical practitioners is required.

But the upper gestational limit to avail abortion between 20 to 24 weeks is granted only on certain conditions like-

Survivors of sexual assault, rape or incest.
Women’s whose martial status has been changed during the pregnancy (divorced, widowed)
While the MTP Act 1971 allowed only married women to undergo abortion but under this amendment even unmarried women can undergo abortion in case of failure of contraceptive method or device upto 20 weeks of pregnancy.
Differently abled women physically or mentally.
Women with pregnancy in disaster and emergency situations as may be declared by the government.
Minors

Confidentiality clause-

The confidentiality clause was inserted by the amendment which stated that- The names and particulars of the women whose pregnancy is terminated shall not be revealed except to the person authorised in any law that was in force that time. This clause ensures right to privacy of a women.

According to section 5A of the Medical Termination Pregnancy Act 1971,If a medical practitioner reveals the name and details of the women whose pregnancy has been terminated shall be punished with imprisonment of one year or with one year and fine both.

Abortion in cases after 24 weeks-

The opinion of medical termination of pregnancy beyond 24 weeks gestation period will be given by a medical board duly constituted by the state government or UT administration at approved facilities.On the basis of the decision, two medical practitioners will be allowed to perform the termination of pregnancy.

The decision is solely on the basis keeping in mind that whether it would be safe for the women at this gestation age and whether the foetal malformation has substantial risk of it being incompatible with life or if the child is born it may suffer from serious mental or physical abnormalities.

Consent-

Consent to abortion differs in case of a minor and and adult.

According to section 4 of Medical termination Act the pregnancy of a women who has not attained the age of eighteen years or having attained the age of eighteen years is mentally ill, shall be terminated except with the consent in writing of her guardian.

In case of adult women, an adult women of a sound mind does not need consent from anyone to terminate the pregnancy under this act.

Who can perform an abortion in India?

A medical institution which has the licence to perform medically assisted abortions in India by government must display the certificate issued by the government to the institution.

One of the most frequently asked questions regarding abortion in India is-

Is abortion legal for unmarried girls in India?

The answer to this is yes, in India, if the unmarried girl is above 18 years of age can undergo abortion with her own constant.

But if the girl is minor that is below 18 years then a consent from the guardian is necessary with stating the reasons of why they want to get an abortion . The 2021 amendment allows unmarried women to get an abortion in case of failure of any type of contraception. This was not in the 1971 bill.

Abortion laws under Indian Penal Code-

Under section 312 of the IPC ‘a person who voluntarily causes a women with child to miscarry is liable for punishment for 3 years imprisonment, fine or both. Unless it was done in good faith in order to save the life of a pregnant women.
Under section 313 of the IPC it states that ‘if a person who causes miscarriage without the consent of the pregnant women, whether or not she is in the advanced state of pregnancy shall be punished with imprisonment of 10 years with or without fine.

This states that nobody can force a women to get an abortion. It is her consent which is important. In this case, even the partners consent is not required.

Recent update regarding abortion laws-

Recently Supreme Court gave a landmark judgment regarding the abortion laws in India. An appeal was put by a 25 year pregnant women who was in her 23 week of pregnancy. Her status had changed regarding her relationship with partner who had refused to marry her. Her abortion appeal was rejected by the high court after which she had appealed to the Supreme Court. She stated that giving birth out of wedlock will cause her mental agony and social stigma.

She challenged the rule 3B of the medical termination rules (2003) which allowed only some categories of women who are allowed to undergo abortion from 20 weeks to 24 weeks.

The 2021 amendment does not include unmarried women and contains only few categories.

The Supreme Court ordered that amendment to

the 2021 had substituted the term husband with partner which is a clear sign that the law covered unmarried women within its ambit. Thus allowing the abortion.

In Justice K.S Puttaswamy vs The Union of India and others (2017) the court recognised the constitutional right of a women to make reproductive choices as a part of personal liberty under Article 21 of the Indian Constitution.

But still there are some issues regarding the act.

Issues yet to be addressed-

The law does not allow abortion at will, which leads to unsafe abortions putting the life of the pregnant women at risk.
The act uses the word women which leaves out scope for pregnant transgender’s.
Issues like affordability and social stigma. In private hospitals getting a safe abortion is expensive and can be availed by only the ones who can afford.
While the act permits only gynaecologist and an obstetrician to perform an abortion. There is 75% shortage of doctors in rural areas, women don’t find access to safe abortions in rural areas.

It is important to keep in mind that in India still there are unsafe abortions performed which puts the life of pregnant women at great risk. With it comes the social stigma and pressure of society that needs immediate attention and women be given access to safe abortions at affordable rates.