ABORTION LAW IN INDIA

• Recently, a 25-year-old pregnant woman moved to the Supreme Court seeking an abortion after the Delhi High Court declined her plea. But the Supreme Court of India allowed an unmarried woman to end her pregnancy at 24 weeks.
• 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.
• The case has raised very important questions about the framework of reproductive rights and recognizing female autonomy and agency in India.

What was the Delhi High Court ruling?

• It had taken the view that she was unmarried and since the Medical Termination of Pregnancy Act allowed only married women to terminate the pregnancy after 20 weeks, she would not be eligible to get an abortion under the act
• It mentioned Rule 3B of the Medical Termination of Pregnancy Rules, 2003, as it speaks of change in the marital status of a woman, as the woman was in a live-in relationship and was not married.

Supreme Court's Ruling

• The Supreme Court allowed an unmarried woman whose relationship status changed during the pregnancy to terminate her 24-week foetus, underlining that a distinction in law between a married and an unmarried woman should have no bearing on the right to terminate a pregnancy.
• A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution.
• She has a sacrosanct right to bodily integrity and she can make her own choice
• There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty.
• Further, the bench directed the director of the All-India Institute of Medical Science to set up a Medical Board with two doctors to examine the woman, to determine if it was safe and if the life of the mother should not be in danger while terminating the pregnancy.

What is India’s abortion law?

• Shantilal Shah Committee: In the 1960s, in the wake of a high number of induced abortions taking place, the Union government ordered the constitution of the Shantilal Shah Committee to frame the legislation on abortion in the country.
• Until the 1960s, abortion was mainly illegal in India and a woman could face the 3 years of imprisonment and a fine under Section 312 of the Indian Penal Code (IPC).
• Based on the report of the Shantilal Shah Committee, a Medical Termination Bill was introduced in the Lok Sabha and the Rajya Sabha and was passed by Parliament in August 1971.

Medical Termination of Pregnancy Act 1971

In order to reduce maternal mortality owing to unsafe abortions, the Medical Termination of Pregnancy (MTP) Act was brought into force in the year 1971.

• A single doctor's opinion was a must for abortions up to 12 weeks after conception.
• This law is an exception to the Indian Penal Code (IPC) provisions 312 and 313 and sets the rules of how and when a medical abortion can be carried out.
• Under Section 312 of the IPC, a person who “voluntarily causes a woman with child to miscarry” is liable for punishment, attracting a jail term of up to three years or fine or both, unless it was done in good faith where the objective was to save the life of the pregnant woman.
• This section effectively makes unconditional abortion illegal in India.
• Section 313 of the IPC states that a person who causes the miscarriage without the consent of the pregnant woman, whether or not she is in the advanced stages of her pregnancy, shall be punished with life imprisonment or a jail term that could extend to 10 years, as well as a fine.

Recent amendment

• In 2021, Parliament change the law to allow for abortions based on the advice of one doctor for pregnancies up to 20 weeks.
• The modified law needs the opinion of mostly two doctors for pregnancies between 20 and 24 weeks.
• Further, for pregnancies between 20 and 24 weeks, rules specified seven categories of women who would be eligible for seeking termination under section 3B of rules prescribed under the MTP Act:
• Survivors of sexual assault or rape or incest,
• Minors,
• Change of marital status during the ongoing pregnancy
• Women with physical disabilities
• Mentally ill women including mental retardation,
• The foetal malformation that has a 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 disasters or emergencies may be declared by the Government.

What are the challenges of the MTP act?

• While the law recognizes changes in a pregnant woman's marital status with her spouses — such as divorce and widowhood — it does not address the situation for unmarried women.
• It is a highly regulated procedure whereby the law transfers the decision-making power from the pregnant woman to the Recognized Medical Practitioner and even provides great discretion to the RMP to determine whether abortion should be provided or not.

Judicial interventions in cases of abortions

• Despite the fact that existing laws do not permit unconditional abortion in the country, in the landmark 2017 Right to Privacy judgment in Justice K.S. Puttaswamy v. Union of India and others, the Supreme Court had said that the decision by a pregnant person on whether to continue a pregnancy or not is part of such a person’s right to privacy as well and, therefore, the right to life and personal liberty under the Article 21 of the Indian Constitution.
• In February 2022, the Calcutta High Court allowed a 37-year-old woman, who was 34 weeks into her pregnancy, to get a medical abortion as the foetus was diagnosed with an incurable spinal condition.
• The Court permitted this after the State Medical Board rejected the woman’s application to get MTP.
• This judgment allowed abortion for the furthest gestational age in the country so far.

Way forward

There is a need for a serious rethink in policy-making as well as accommodating all the stakeholders to focus on women and their reproductive rights, rather than drawing red lines those medical practitioners cannot cross while performing abortions.