Updated: Feb 20, 2022
Written by: Girija Rani Mullapudi
With the origins in the British Offences Against the Person Act 1861, the Indian Penal Code 1862, and the Code of Criminal Procedure 1898 made abortion a criminal offence for both the woman and the abortionist, unless the woman's life was in danger. In 1964, India's abortion laws were liberalized in response to high maternal mortality from unsafe abortions. Doctors regularly encountered seriously sick or dying women who had undergone unsafe abortions performed by untrained personnel. They realized that the majority of women seeking abortions were married and faced little social pressure to hide their pregnancies and that decriminalizing abortion would encourage women to seek abortions in legal and safe environments.
A complete review of the socio-cultural, legal, and medical side of abortion was done out by the shah committee constituted by the government of India and advocated the legalisation of abortion in 1966 to prevent the waste and loss of health and life for women on humanitarian as well as medical grounds. In order to diminish objections by socio-religious organizations to the liberalization of the abortion law, the term 'Medical Termination of Pregnancy' (MTP) was employed. The MTP Act passed in 1971 by Parliament legalized abortion in India, except the Jammu and Kashmir states.
THE INDIA PENAL CODE OF 1860
The Indian Penal Code of 1860 recognizes that induced abortion is unlawful across the country, taking into account the social, emotional, and medical aspects of abortion. The Indian Penal Code, 1860, Section 312[i], describes abortion as a miscarrying factor. This applies intentionally to a lady who makes a miscarriage. In this passage, however, the word abortion is not used. Abortion would give error a core purpose. Technically, abortion would include spot-with-abortion, whereas it would include illegal abortion willingly resulting in error criminalized under Section 312.
Induced abortions considered criminal offences under Sections 312 to 316[ii] of IPC 1860, save in circumstances that were intended to preserve the mater's lives. It used the term miscarriage as a reference to abortion. Therefore, any individual volunteering to miscarry is punished by three years imprisonment and/or payment of a penalty according to these rules. In circumstances where the lady was quick with the kid (motion from the fetus felt by a mother) the sentence may even extend to 7 years with fine payment.
THE MEDICAL TERMINATION OF PREGNANCY ACT 1971
The Medical Termination of Pregnancy Act 1971[iii] also discusses cases in which a registered medical practitioner may perform a therapeutic abortion. The action shows on what scenarios the pregnancy can end, when the end of that pregnancy was defined and where this ends and who is authorised to perform the end.
Abortion and sex determination: many problems
The PNDT Act 1994[iv], which subsequently modified the Preconception and Pre-Natal Sex Selection and Determination Act 2002[v], forbids the abuse of pre-natal diagnostic tests to determine sex that may result in the abortion of female fetuses. The Federal Nation foresees the misuse of preventive diagnosis and pre-natal sex selection. These laws further ban the promotion of such usage; demand registration of all installations that utilize them; prevent anybody carrying out such testing from revealing the sex of the fetus.
The Constitution of India also deals with the concept of abortion, but unclear and vague. As aforementioned, Article 21[vi] may apply to the right to an abortion if interpreted. The right to life and personal freedom is dictated by Article 21. It can also be understood that a woman with such a privilege might enjoy her freedom and in any manner modify her body. She might do everything to suit her body, abortion laws outside India. For several reasons, the constitutionality of the MTP Act has been repeatedly questioned. The Petitioners submitted a PIL contesting the constitutionality of Sections 3(2), 3(4) and 5[vii] of the MTP Act in the present case before the Supreme Court, Swati Agarwal & Ors v Union of India[viii] as infringing Article 14[ix] and 21 of the Indian Constitution. The contested violations of Article 21 were Section 3(2), 3(4) (a) and section 5.
NEW AMENDMENT IN 2020
The Union Cabinet reformed the MTP Act of 1971, in which women can seek abortion in reproductive rights and gender justice, in late January 2020. This law is now being revised by the Union Cabinet. The amendment also positions India within the top ranks of women's countries that want to make autonomous choices from their viewpoints and problems.
ü Increasing the upper edge gestation limit for particular classes of women from 20 to 24 weeks, including rape survivors, incest victims and other vulnerable women Key changes (differently able women, minors, among others).
ü One provider's perspective required 20 weeks gestation for terminating the pregnancy. The two suppliers' views on termination of 20-24 weeks of pregnancy should be required.
ü Upper gestation limit not applicable in circumstances where a Medical Board diagnoses significant fetal abnormalities.
ü Confidentiality clause. The name and other particulars of a woman whose pregnancy has been terminated cannot be revealed except to a person authorized by law.
ü Extended MTP services under the failure of a contraceptive clause to unmarried women to provide access to safe abortion based on a woman’s choice, irrespective of marital status[x].
Lack of choice in current legislation for women
Contrary to the Comprehensive Abortion Care Proposal made by the Shantillal Shah Committee for women[xi], the MTP Act provides little protection for women and more measures to safeguard physicians who terminate their medical work. Furthermore, it points to the lack of choice of women in the framework of Section 3[xii] of the MTP Act, which relies only on the opinion of a doctor for the determination to undertake a medical termination.
The Supreme Court determined that reproductive autonomy of women is a basic right for privacy insignificant decisions, such as Suchita Srivastava v Chandigarh Admin and Devika Biswas v Union of India,[xiii] and said that the decision to have a child or not should be their own and not State intrusion. However, no evident amendment has been made to these rulings thus yet in the MTP Act.
However, the Court denied the termination of 27-week pregnancy in Savita Sachin Patil v Union of India[xiv]. There was no health danger to mothers, but the fetus had serious physical defects, the Medical Board said. According to the Medical Board Report, the Court then did not allow the termination on the ground.
The court also allowed the dismissal in Alakh Alok Srivastava v Union of India[xv], where the petitioner was a pregnant rape victim of a 10-year old age, with 32 weeks of pregnancy. The Medical Board considered it to be less dangerous for a petitioner to continue the pregnancy than it was to stop at that time. The Court urged the Center in the course of the proceedings to establish permanent medical boards in states to consider petitions for an end of the pregnancy for 20 weeks swiftly, and the Center provided directions for this.
Because the age of the petitioner and of her trauma caused by sexual abuse and the agony she is experiencing at now, and above all the report of a medical board constituted by this court, we believe that the termination is appropriate for the Apex Court of Murugan Nayakkar v Union of India and Ors[xvi].
The publication of this article will make women aware of their pregnant rights and choices. Every woman has to choose whether she is willing to have a kid or not. There are many occasions in which women are suffering from suitable abortion facilities even within the era of technology and advancement. Abortion legislation in India is not entirely liberal. Development is essential to comply with the present standards for protecting women's rights in the country. The unconstitutional measures violating the rights of women in the country protected by the Constitution must be abolished. The MTP Bill 2020 (amendment) is a step in the right way. In many circumstances, a mother must either bear or end a child under various external and mental strain. This article covers the circumstances through which a woman can or cannot terminate the child with various case laws.
REFERENCES [i]Indian Penal Code, 1860 (Act 45 of 1860) § 312. [ii] Indian Penal Code, 1860 (Act 45 of 1860) § 312 to 316. [iii] Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971). [iv] The Pre-Natal Diagnostic Techniques (Regulation and Prevention Of Misuse) Act, 1994 (Act 57 of 1994). [v] Preconception and Pre-Natal Sex Selection and Determination Act 2002. [vi] The constitution of India, 1949, Art 21. [vii] Medical Termination of Pregnancy Act, 1971(Act 34 of 1971) §3(2), 3(4) & 5. [viii] Swati Agarwal & Ors. V. UIO (1-7-19) W.P. (C)825/2019 Supreme Court. [ix] The constitution of India, 1949, Art 14. [x] Ministry Of Law And Justice (Legislative Department), The Medical Termination Of Pregnancy (Amendment) Act, 2021 NO. 8 OF 2021 [25th March 2021.] https://egazette.nic.in/WriteReadData/2021/226130.pdf. [xi] Government of India (1966), Report of the Committee to Study the Question of Legalisation of Abortion (Shantilal Shah Committee Report), Ministry of Health and Family Planning, Government of India, New Delhi. [xii] Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971) §3. [xiii] (2009) 11 S.C.C. 409. [xiv] Savita Sachin Patil And Anr v Union Of India And Ors, MANU/SCOR/09805/2017. [xv] Alakh Alok Srivastava v Union of India ,MANU/SCOR/27996/2020. [xvi] Murugan Nayakkar v Union of India and Ors , 2017 SCC OnLine SC 1902.