Need to overhaul India’s restrictive abortion law

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    Introduction to Abortion Laws in India

    While India has come a long way since the time it has gained its independence in 1947, yet even today we find that India still lags far-behind from other nation-states when it comes to the provisions pertaining to abortion laws in the country. The current laws continues to remain stringent and critical and an immediate need for it being overhauled still lingers.  An American birth control activist and sex educator Margaret Sanger had famously said:

    No woman can call herself free who does not own and control her body”.

    The Medical Termination of Pregnancy Act, 1971 while introduced by the then health minister S Chandrasekhar as a step in the direction of the manumission of women does not give women the right to make this important decision with regards to abortion but places the decision-making in the hands of healthcare providers. Though times have changed tremendously yet this right has not been granted to the women of our democracy.

    Abortion as being a part of Human Rights

    It forms a part of a woman’s individual rights, which includes rights such as-right to her life, to her liberty, and to the pursuit of her happiness, that sanctions her right to have an abortion. A women’s reproductive and sexual health and shape her reproductive choices. Reproductive rights are internationally renowned as critical both to advancing women’s human rights and to promoting development.

    In recent years, governments from all over the world have accredited and pledged to advance reproductive rights to an unprecedented degree. Ceremonial laws and policies of the country are crucial indicators of government commitment to promoting reproductive rights. Each and every women has an absolute right to have the control over her body, most often known as “bodily rights”.

    Recent role of the Judiciary in overhauling the abortion laws in India

    The Supreme Court of India has time and again tried its best to overhaul abortion laws and having said so it has reinterpreted the Medical Termination of Pregnancy Act, 1971, in some cases, allowing petitioners to terminate pregnancies beyond the legal limit of 20 weeks. Recently, the Supreme Court permitted a rape survivor to terminate her pregnancy at 24 weeks, which is beyond the permissible 20 weeks limit prescribed as under the Medical Termination of Pregnancy Act, 1971. Their grounds were that continuing the pregnancy could greatly jeopardize her physical as well as the mental health of the woman.

    In this instance, the Supreme Court directed the members of the appointed medical board to scrutinize the petitioner and the viability of the pregnancy. The board found that the foetus had multiple congenital anomalies and the sternness of these anomalies posed a momentous risk to the physical and mental health of the petitioner. Therefore, the medical board commended that the petitioner be allowed to not linger the pregnancy. Based on these valuable recommendations, the Supreme Court granted the petitioner approval to go ahead and terminate her pregnancy.

    Former cases where the judiciary played a key role in refurbishing the abortion laws

    This is not the first time that the Supreme Court has permitted a woman to abort a foetus older than 20 weeks. In 2015, the apex court reversed a decision by the Gujarat high court in a similar case. The Gujarat high court had denied permission to a 14-year-old rape survivor to abort her 25-week old foetus. However it is interesting to note that while delivering its verdict, the high court acknowledged the following grounds:

    • adverse physical
    • adverse  emotional and
    • psychological implications of the decision on the petitioner’s life

    However, ultimately the honourable court chose to subscribe to the law. The girl then approached the Supreme Court, which recommended that a medical panel ought to examine the girl and decide whether the termination of pregnancy was in her best interests; if the panel was in favour of the abortion, then the girl could go ahead with the termination. Thereby we find that though the law expressly does not permit termination of pregnancy beyond the legal limit of 20 weeks, the judiciary has however time and again tried its best to overhaul this demeanour and help the woman to make the decision pertaining to abortion.

    Instances where the judiciary declined the provision of abortion

    If we flip through the pages of judicial pronouncements we find that not always has the judiciary favoured woman when it came to abortion. In 2008, the Bombay high court denied a woman, whose foetus had been diagnosed with a congenital heart defect, permission to abort her 26-week foetus. The petitioners argued that it was against the constitutionality of section 5 of the MTP Act – which permits abortion beyond 20 weeks only if it is necessary to save the life of the pregnant woman.

    The petitioners argued that since the 20-week law includes a provision to terminate a pregnancy if a foetus has severe abnormalities, the same provision should apply if the foetus is over 20-weeks old. Nevertheless, the high court rejected this argument and held that it was not sanctioned to read down section 5 as it would virtually amount to usurping the power of the legislature, which was not the intent of the court. Therefore, on a plain and strict reading of the MTP Act, the court said that abortion on the ground of severe abnormalities of the foetus was only permissible within 20 weeks. As there was no risk to the life of the pregnant woman, the court denied the petitioners the right to abort the foetus.

    Similarly, in 2015, the Punjab and Haryana high court denied a 13-year-old rape survivor permission to terminate her 25-26 week old foetus. More recently in the case of  R v Haryana, the Punjab and Haryana high court did not grant the petitioner, also a rape survivor, permission to terminate her pregnancy as the commissioned medical report did not agree to an abortion. Nonetheless, by way of copious caution, the court requested doctors from AIIMS, the premier medical institution in the country, to re-evaluate the possibility of terminating the pregnancy. The doctors were initiated to take the decision in good faith and in the best interest of the petitioner.

    However, the petitioner delivered a healthy baby over the course of these lengthy proceedings. Captivatingly, the court also directed the Centre to make necessary amendments to the MTP Act –

    • to clearly lay down that doctors will not be unnecessarily prosecuted if they act in good faith to save a rape survivor’s life or to
    • avoid grave injury to the women’s physical and mental health.

    Progression of the Medical Termination of Pregnancy Act and the recognition of abortion laws

    To understand the issues surrounding abortion in India, it is obligatory to contextualise the evolution of the Medical Termination of Pregnancy Act, which liberalised abortion laws in India. The MTP was enacted two years before the landmark judgement of the US Supreme Court in the case of Roe v Wade – which held that laws which criminalise all abortions, except those required to save a mother’s life, were unconstitutional and violated the right to privacy of a pregnant woman. But this right should be poised against the right of the state’s legitimate interest in protecting both the pregnant woman’s health and the potentiality of human life at various stages of the pregnancy. Before the advent of the Medical Termination of Pregnancy Act in 1971, abortion under any circumstances, except in the circumstances of danger to a pregnant woman’s life, was considered to be illegal in India.

    Section 312 of the Indian Penal Code (IPC) provides that:

    Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

    The Medical Termination of Pregnancy Act overrides the IPC by allowing a woman to get an abortion within the first 12 weeks of pregnancy, provided that a registered medical practitioner diagnoses grave danger to the pregnant woman’s physical and mental health, only then can she be allowed to go for the abortion. If the foetus is between 12 and 20 weeks old, then the procedure requires permission from two medical practitioners. The Act also allows abortion if the foetus will be born with severe abnormalities. Thus room for overhauling continues to exist.

    To determine the risk of physical and mental harm to a pregnant woman seeking abortion, the Act takes into account the woman’s actual as well as reasonably foreseeable environment into its consideration. It also defines circumstances which can constitute grave injury to the mental health of a woman. The mentally grievous situations include pregnancy resulting from rape as well as contraceptive failure

    – Of any contraception used by a married woman or her husband

    – If a married couple is attempting to limit their number of children.

    Abortion beyond 20 weeks is also considered to be legal if a registered medical practitioner, in good faith, thinks that emergency termination is necessary to save a pregnant woman’s life. The Act does not mention anything about a woman’s right to terminate a pregnancy beyond 20 weeks if there are foetal abnormalities. Furthermore, the Medical Termination of Pregnancy Act as it currently stands also does not licence abortion solely on the request of a woman, which it should as it is a gross violation of her human rights. One important reason for this is to prevent and reduce the instances of female foeticide in the country, however in this aim many woman who genuinely require to get an abortion done for valid grounds get penalised and undergo immense pain and agony.

    Proposed amendments to the present Medical Termination of Pregnancy Act to overhaul the abortion laws in India

    Laws are created for the betterment of the society, and as the society is dynamic in nature and continues to change, therefore often need for amending our archaic laws are also felt on a regular basis. Palpably, there are divergent and conflicting case laws when it comes to the issue aborting a foetus beyond the stipulated 20-week period. There is also the important issue of a woman’s right to her body, as it is limited under the current laws of the nation.

    The Ministry of Health and Family Welfare proposed some amendments to the Medical Termination of Pregnancy Act in October 2014 which addressed these issues to a limited extent only. One of the draft amendments proposed to increase the time period within which abortion may be carried out from 20 weeks to 24 weeks.

    Recognising a woman’s agency over her body, the draft amendments have proposed that within the first 12 weeks, an abortion may be carried out by a registered doctor at the request of a pregnant woman, without the opinion of a registered doctor, this is something that might be a sigh of relief for the aggrieved women in our country.

    Another amendment stated that aborting a foetus between 12 and 24 weeks, if a medical practitioner deems it necessary, should be conducted on the same grounds as provided under the current Medical Termination of Pregnancy Act which is in force at the moment.  The draft amendment also permitted abortion beyond the stipulated 24 weeks, in case the foetus suffers from substantial foetal abnormalities.

    Remarkably, the amendment also recognises the growing reality of sexually active single unmarried women and provides that single woman can also seek an abortion within the stipulated time period if it can be established that the pregnancy was unplanned and a result of contraceptive failure. This is again a path breaking amendment which if implemented would empower the victimised women of the nation. The current Medical Termination of Pregnancy Act on the contrary only accounts for sexually active married women.

    If the draft amendments had been incorporated into the Act, then the petitioner in the recent Supreme Court case as well as many other women could have been saved the mental and physical anguish of knocking on different courts’ doors. This clearly shows the lack of human rights that women still continue to be denied in our country even years after our independence.

    The decision to terminate a pregnancy is never an easy or mechanical decision and it takes a severe toll on the affected parties, especially the woman. It is only under terrible circumstances that a mother wishes to get her child aborted. There is a need to strike an equilibrium between the rights of women to control their bodies and the legitimate interests of the state to prevent selective sex determination as well as at the same time protect the interests of the woman and the unborn foetus. The draft amendments offers a sort of a definitive step in the right direction and its effective implementation can save a number of women from going through the physical and mental agony which they currently need to undergo when they opt to go for abortions in our country.

    Source:

    http://thewire.in/57111/how-indias-abortion-laws-fail-its-women/

    http://www.hrln.org/hrln/reproductive-rights/pils-a-cases/1646-government-of-india-announces-proposed-amendments-to-the-mtp-act.html

    http://www.legalserviceindia.com/articles/adp_tion.htm

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