India’s Law On Abortion

Context:

Recently, A 25-year-old pregnant woman moved the Supreme Court seeking an abortion after the Delhi High Court declined her plea last week.

• The woman has also challenged Rule 3B of the Medical Termination of Pregnancy Rules, 2003, which allows only some categories of women to seek termination of pregnancy between 20 and 24 weeks.

Relevance:

GS II- Polity and Governance

Dimensions of the Article:

1. What is the case about?
2. The Medical Termination of Pregnancy Act, 1971
3. Medical Termination of Pregnancy Amendment Act, 2021

What is the case about?

• Recently, a 25-year-old woman sought the Delhi High Court’s permission for termination of a pregnancy of 23 weeks and 5 days.
• The woman, a permanent resident of Manipur who currently resides in Delhi, told the court that the pregnancy was a result of a consensual relationship, and that she wanted to terminate the pregnancy because her partner had refused to marry her.
• She also told the court that she feared stigmatisation as a single, unmarried woman.

Delhi HC’s decision:

• A two-judge Bench of the Delhi High Court refused to allow the termination of the pregnancy.
• In oral observations, the judges coaxed the woman to carry her pregnancy to term, and to give up the newborn for adoption — even offering to personally pay for the process.

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 Act increases the gestation period of women seeking abortion up from 20 weeks to 24 weeks – It allows abortion to be done on the advice of one doctor up to 20 weeks, and two doctors in the case of certain special categories of women between 20 and 24 weeks.
• The “special categories of women” include rape survivors, victims of incest, the differently-abled and minors.
• In case of the gestational period beyond 24 weeks, pregnancy may be terminated only in cases of substantial foetal abnormalities diagnosed by the Medical Board or if there is a threat to the life of the mother.
• Opinion of only one provider will be required up to 20 weeks of gestation and two providers for termination of pregnancy of 20-24 weeks of gestation. (Opinion of only one doctor will be required up to 20 weeks of gestation and two doctors for termination of pregnancy of 20-24 weeks of gestation.)
• Under the Act, a pregnancy may be terminated up to 20 weeks by a married woman in the case of failure of contraceptive method or device. It allows unmarried women to also terminate a pregnancy for this reason.
• All state and union territory governments will constitute a Medical Board. The Board will decide if pregnancy may be terminated after 24 weeks due to substantial foetal abnormalities. 

Significance of the amendment

• It will provide greater reproductive rights and dignity to women as abortion is considered an important aspect of the reproductive health of women.
• Deaths and injuries from unsafe abortions are largely preventable provided services are performed legally by trained practitioners.
• The rape victims and vulnerable victims will also be benefitted from Privacy Clause.
• Many cases which were filed in High Courts to seek permission for abortion beyond 20 weeks will be reduced. Also, often 20 weeks were spent in completing the legal procedures and formalities – hence, there was a need to increase the upper limit of time.

Criticisms of the 2021 amendment to the MTP act

• One opinion is that terminating a pregnancy is the choice of the pregnant woman and a part of her reproductive rights. Another is that the state should protect life and hence should provide for the protection of the foetus.
• It enhances the gestational limit for legal abortion from 20 to 24 weeks only for specific categories of women. A woman who does not fall into these categories would not be able to seek an abortion beyond 20 weeks.
• The Act does not provide a time frame within which the Board must make its decision. Also, the shortage of specialised doctors will further delay the case.
• There may be cases where persons who identify as transgender (and not women) can become pregnant even after receiving hormone therapy to transition from female to male, and may require termination services. The Act is silent over this.
• The boards are unnecessary and an invasion of privacy of the pregnant women which pushes the laborious process a woman had to undergo in order to get an abortion.
• Many are still not aware of their reproductive rights and the amendment does not show concerns towards the need for awareness.

–Source: Indian Express