Abortion Law In India

Context:

The Supreme Court on May 15 refused to entertain a plea of a 20-year-old unmarried woman seeking termination of her over 27-week pregnancy, saying the foetus in the womb also has a fundamental right to live.

Relevance:

GS II: Polity and Governance

Dimensions of the Article:

1. The Medical Termination of Pregnancy Act, 1971
2. Medical Termination of Pregnancy Amendment Act, 2021
3. Who falls in the category of women allowed to terminate pregnancy between 20-24 weeks?

News Summary:

• The Supreme Court declined to entertain a plea from a 20-year-old unmarried woman seeking termination of her over 27-week pregnancy.
• The decision was made by a bench led by Justice B R Gavai, upholding the Delhi High Court’s ruling from May 3 denying termination of the pregnancy.

Key Observations by the Court:

• The Supreme Court questioned the right of the child to survive, considering the advanced stage of pregnancy.
• The petitioner argued that the focus of the Medical Termination of Pregnancy (MTP) Act is primarily on the rights of the mother, highlighting her delicate state.
• The Delhi High Court had constituted a panel of AIIMS doctors to assess the situation, which concluded that there were no congenital abnormalities or dangers to the mother that necessitated termination.

Important Judgements by the Supreme Court regarding Abortion:

X v/s NCT of Delhi (2022):

• The Supreme Court ruled that women have the right to terminate pregnancies between 20 and 24 weeks due to any “change in their material circumstances.”
• It emphasized that women have sole authority over their bodies and are the ultimate decision-makers regarding abortion.

Rights of a Foetus Under Indian Law:

• The rights of a foetus under the Indian Constitution remain unclear, with no explicit articulation.
• The distinction between whether a foetus possesses rights or mere “interests” is ambiguous, as seen in a 2009 Supreme Court decision.
• A 2016 Bombay High Court decision referenced international human rights law to conclude that a foetus lacks rights until birth, highlighting the need for clarity in Indian laws.

The Medical Termination of Pregnancy Act, 1971

• The Medical Termination of Pregnancy (MTP) Act, 1971 provides the legal framework for making CAC services available in India.
• Termination of pregnancy is permitted for a broad range of conditions up to 20 weeks of gestation as detailed below:
  • When continuation of pregnancy is a risk to the life of a pregnant woman or could cause grave injury to her physical or mental health;
  • When there is substantial risk that the child, if born, would be seriously handicapped due to physical or mental abnormalities;
  • When pregnancy is caused due to rape (presumed to cause grave injury to the mental health of the woman);
  • When pregnancy is caused due to failure of contraceptives used by a married woman or her husband (presumed to constitute grave injury to mental health of the woman).

The MTP Act specifies

• who can terminate a pregnancy;
• till when a pregnancy can be terminated; and
• where can a pregnancy be terminated.

Medical Termination of Pregnancy Amendment Act, 2021

• The Medical Termination of Pregnancy Act allows termination of pregnancy by a medical practitioner in two stages.
• After a crucial amendment in 2021, for pregnancies up to 20 weeks, termination is allowed under the opinion of one registered medical practitioner.
• For pregnancies between 20-24 weeks, the Rules attached to the law prescribe certain criteria in terms of who can avail termination. It also requires the opinion of two registered medical practitioners in this case.
• For pregnancies within 20 weeks, termination can be allowed if:
  • the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
  • there is a substantial risk that if the child was born, it would suffer from any serious physical or mental abnormality.
• The explanation to the provision states that termination within 20 weeks is allowed “where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman”.
  • The phrase “any woman or her partner” was also introduced in 2021 in place of the earlier “married woman or her husband”. By eliminating the word “married woman or her husband” from the scheme of the MTP Act, the legislature intended to clarify the scope of Section 3 and bring pregnancies which occur outside the institution of marriage within the protective umbrella of the law.
• For both stages — within 20 weeks and between 20-24 weeks — termination is allowed “where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman”.

Who falls in the category of women allowed to terminate pregnancy between 20-24 weeks?

• For pregnancies between 20-24 weeks, Section 3B of the Rules under the MTP Act lists seven categories of women:
  • Survivors of sexual assault or rape or incest;
  • Minors;
  • Change of marital status during the ongoing pregnancy (widowhood and divorce);
  • Women with physical disabilities (major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016);
  • Mentally ill women including mental retardation;
  • The foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped;
  • Women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

-Source: The Hindu