This article has been authored by Trusha Yadavilli, a second-year student at Jindal Global Law School
Abortion has always been a very debated and taboo topic not only in India but around the world too. A study conducted by Guttmacher Institute and the World Health Organization estimated that around 25 million unsafe abortions were carried out worldwide between 2010 and 2014. According to UNICEF, India was accountable for 1/3rd of maternal deaths in the world in 2017 and government estimates show that 8.9% of maternal deaths in India are caused by unsafe abortions every year. These numbers show the chilling reality of abortions in India. Even though India’s abortion laws are liberal compared to other countries, the lack of accessible abortion services along with a lack of knowledge of the rights available to women further exacerbates the situation.
This article aims to shed light upon the various provisions of the Medical Termination of Pregnancy Act, its conflict with other important acts and its scope in the future.
The Medical Termination of Pregnancy Act 1971:
India was one of the few countries that legalized abortion by passing the Medical Termination of Pregnancy Act (MTP) in 1971. It provides specific exceptions to the prohibition of abortion as set out in the IPC, and aim to protect women and to improve accessibility in order to promote safe abortions. Under Section 3 of the MTP, a woman could terminate her pregnancy by a registered medical practitioner if
1) If the duration of the pregnancy does not exceed 12 weeks then the opinion of one medical practitioner is needed. If the length of the pregnancy exceeds 12 weeks but is less than 20 weeks then the opinion of two medical practitioners is needed.
2) Minors (under the age of 18) or women who are mentally ill cannot terminate their pregnancies without the consent of their guardians.
3) If there is a substantial possibility that the continuance of the pregnancy would cause either mental or physical harm to the woman. This includes cases of rape survivors, failure of contraceptives or cases where there is a chance of the child being born with mental or physical abnormalities as the continuance of the pregnancy may cause grave mental injuries.
Many landmark cases have shaped the MTP in order to ensure justice and provide safe and accessible abortion services. The MTP requires only the consent of the woman for abortion except in the cases of minors or those with mental disabilities. In Dr. Mangla Dogra & Others v. Anil Kumar Malhotra & Others the court ruled that spousal consent is not required for an abortion. Under Section 3(4)(b) only the woman’s consent is required to carry out an abortion, the husband cannot force his wife to continue the pregnancy In rape cases, the court has previously allowed termination of pregnancies after the 20th-week mark under certain circumstances, in Chandrakant Jayantilal Suthar & Another v. State of Gujarat, a minor girl was raped and wished to abort her unborn child in the 24th week of pregnancy. The court held if the continuance of the pregnancy would cause life-threatening harm to the girl, then the pregnancy can be terminated with her consent.
Suchita Srivastava & Anr vs Chandigarh Administration is a landmark case which states that Article 21 of the Constitution, which ensures a person’s rights to privacy, personal dignity and bodily integrity, also includes a woman’s reproductive rights. In this case, a woman who was suffering from a mental illness was raped and she became pregnant, the government filed a case to terminate the unborn child even though she wanted to keep it. The court denied the termination as they ruled that only the woman has full rights on her body and termination without her consent would lead to further mental distress. Similarly, in Laxmi Mandal v. Deen Dayal Hari Nagar Hospital, a pregnant woman died due to inadequate medical services provided to her. The court ruled that it violated Article 21 of the Constitution which ensures the right to healthcare and the case resulted in the government taking many steps to avoid preventable maternal deaths.
Conflict with Pre-Conception Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT) and the Protection of Children from Sexual Offences Act, 2012 (POCSO):
Due to the abysmal sex ratio in India with the cases of female foeticide or sex-selective abortions increasing every year, further widening the gap, the Pre-conception Pre-Natal Diagnostic Techniques Act was passed in 1994. This act makes disclosing the sex of a foetus by any methods illegal, it aims to improve the sex ratio and prohibit sex selection before birth under Section 6 of the PCPNDT. The PCPNDT prohibits any pre-natal diagnostic tests which include ultrasonography to identify the sex of the foetus. Only clinics or practitioners who have been registered under this act are allowed to carry out such tests in order to identify any abnormalities as specified in Section 4 of the PCPNDT. This act had led to many doctors and clinics being apprehensive or shutting their abortion services in fear of facing ramifications, leading to many women not having easy access to safe abortion services which undermines the MTP Act. In Voluntary Health Ass. Of Punjab vs Union Of India & Ors a writ petition was filed calling for effective execution of the PCPNDT Act as even after its implementation, sex-selective abortions were being carried out in various states.
Protection of Children from Sexual Offenses Act passed in 2012, plays an important role in protecting minors from sexual offenses such as assault pornography, etc. It defines a minor or child as a person under the age of 18 under Section 2 (d) of POCSO. Under this act, all pregnant minors are considered as rape victims even if consent was given. Section 19 of POCSO mandates cases of child sexual abuse being reported failure of which could lead to penalties or even imprisonment up to 6 months under Section 21 of POCSO. This feature contradicts Section 5A (which is sought to be inserted by Medical Termination of Pregnancy (Amendment) Bill, 2020) of the MTP and violates Article 21 of the constitution under the Right to Privacy of the minors. The compulsory reporting dissuades minor girls, who participated in consensual sex or who were sexually abused by family members, from getting abortions. The contradictions among the acts lead to confusion among authorities, clinics and among those seeking abortions with many resorting to unsafe abortions. There is an urgent requirement of cooperation among the acts so that the rights of the women are not violated and they have easy access to abortion services.
Medical Termination of Pregnancy (Amendment) Bill, 2020:
The Medical Termination of Pregnancy (Amendment) Bill was passed by the Lok Sabha on 17th March 2020. It has increased the upper limit of gestation from 20 to 24 weeks, now under Section 3 of the MTP the opinion of one registered practitioner is needed for upto 20 weeks and the opinion of 2 registered practitioners if it exceeds 20 weeks but is less than 24 weeks. This amendment allows the detection of abnormalities which are detectable only after the 20th week, the increase of this period also gives rape survivors significantly more time to carry out abortions. In, Dr. Nikhil Datar v. Union of India & Others a petition was filed to abort a couple’s unborn child who was diagnosed with a severe heart defect past the 20-week mark. The court did not permit the abortion and the couples faced a miscarriage eventually. Such cases have led to the amendment in the MTP which now provides there would be no upper limit if there is a substantial abnormality diagnosed by a medical board. It states that there must a medical board in every state and union territory that deals with cases of foetus abnormalities after the 24-week mark.
The bill has added Section 5A to the MTP which aims to protect the identity and privacy by prohibiting disclosure of the name and other details of the women seeking an abortion under this act by the medical practitioner, except to those authorised by law. This amendment had been criticized as the reporting of such cases to authorities violates the right to privacy of the women and discourages practitioners and clinics from offering such services. The bill has also expanded to include unmarried women replacing the term ‘married women or her husband’ in the act with ‘any woman or her partner’. While this is a positive step, the MTP act must be more inclusive in order to accommodate all sorts of relationships, the new amendment fails to include transgender, cisgender, gay etc. persons who require such vital services too.
While India continues to adapt and evolve its abortion laws and the new amendment in MTP shows a move in the right direction, there are many changes that are yet to be made. Abortion laws in India must grant women more autonomy in their right to abortion as the final say of whether it would be conducted or not still lies with the doctors. There is a need to protect the privacy of minor girls who wish to terminate their pregnancies under this act and clear the inconsistencies between POCSO and MTP so that the rights of these girls are protected. There is also an urgent need to acknowledge the LGBTQIA community in this bill as they continue to be unrepresented which alienates them from their much-needed rights. The act must focus on increasing accessibility especially in such pressing times, The Foundation for Reproductive Health Services India estimated an additional 834,042 unsafe abortions and 1,743 maternal deaths during The Covid-19 Pandemic. The law must move towards prioritizing the choice of the woman, giving her the autonomy that is required in order to live a healthy life.