Context: Abortion rights remain a contentious issue globally, often caught between ethical concerns and legal frameworks. India has a progressive abortion law compared to some nations but still presents challenges beyond 24 weeks of pregnancy.
Relevance of the Topic: Mains: Abortion rights in India- Issues, Case Study, etc.
Abortion Laws in India
- The law on abortion in India is primarily governed by Sections 312-316 of the Indian Penal Code and the provisions of the Medical Termination of Pregnancy Act, 1971.
- The MTP (Amendment) Act, 2021 has expanded the access to safe and legal abortion services on therapeutic, eugenic, humanitarian and social grounds to ensure universal access to comprehensive care.
Major Provisions of the MTP (Amendment) Act, 2021:
- Increase in Gestation Periods:
- The Amendment Act increases the maximum gestational limit for pregnancies that may be aborted on the advice of one 'registered medical practitioner' from 12 weeks to 20 weeks.
- For pregnancies that may be aborted on the advice of two medical practitioners, the limit has been raised to 24 weeks.
- Earlier, if the length of the pregnancy was over 20 weeks and a woman wished to undergo a termination, she would have to file a writ petition before the High Court concerned or the Supreme Court.
- Recognition of Pregnancies outside of Traditional Marriages:
- The Amendment reflects the change in definition from "pregnant married woman" to "pregnant woman" and from "her husband" to "her partner".
- Termination due to Failure of Contraceptive Method/Device:
- Another laudable amendment is the inclusion of unwanted pregnancies due to the failure of contraceptives, as a ground for abortion.
- Under the original MTP Act, abortions could take place only by proving that there was grave risk to the pregnant woman or grave risk of serious physical or mental abnormality.
- Setting up of Medical Boards:
- All state and union territory governments will constitute a Medical Board. The Board will decide if a pregnancy may be terminated after 24 weeks due to substantial foetal abnormalities.
- Earlier, the medical boards were created by various High Courts and Supreme Court after entertaining writs filed by women, and were not in any way statutorily mandated.
- Privacy: A registered medical practitioner may only reveal the details of a woman whose pregnancy has been terminated to a person authorised by law.
Also Read: Medical Termination of Pregnancy (Amendment) Act, 2021
Important Judgement(s) by the Supreme Court w.r.t. Abortion
- 2023 Supreme Court Judgment on Late-Term Abortions:
- The Supreme Court ruled that a woman's bodily autonomy must be respected, even in late-term pregnancies.
- However, it also emphasised the role of medical boards in determining whether abortion can be granted beyond 24 weeks.
- This judgment highlighted the conflict between individual reproductive rights and state-mandated medical scrutiny.
- This case has shown that women can be compelled to carry pregnancies, even if they vouch that the pregnancy is unwanted and dangerous to their well-being.
- X v/s NCT of Delhi (2022):
- In this judgement, the Supreme Court held that termination of pregnancies between 20 and 24 weeks is available to all women who are undergoing any change in their material circumstances.
- The Court said that ‘it is the woman alone who has the right over her body’ and is the ‘ultimate decision-maker’ in deciding if she wants an abortion.
Key Considerations on ‘Abortion Rights’ in evolving Medico-legal landscape:
1. Rights of a Foetus Under Indian Law: The rights of a foetus under the Indian Constitution are unclear as there has been no upfront articulation of it. A 2016 Bombay High Court decision relied on international human rights law to hold that the foetus does not have rights till birth. Hence, there is an urgent need to articulate the rights of a foetus under the Indian Laws.
2. Challenges in Accessing Late-Term Abortions (Medico-legal Barriers): Medical boards follow strict guidelines, allowing abortion only in extreme cases. Even severe congenital conditions may not guarantee approval for termination. Women seeking abortions post-24 weeks face lengthy legal battles, delaying decisions. E.g., A woman with postpartum depression was denied abortion at 26 weeks despite medical complications.
3. Implications of Advancements in Neonatal Medicine: With medical advancements, premature babies as early as 24-26 weeks can survive with intensive care. This raises concerns that should abortion rights be reduced as neonatal care improves? However, there is a risk of legal precedence restricting abortion rights based on medical developments rather than reproductive autonomy.
4. Privacy Concerns (Case study: Haryana’s Pregnancy registration mandate): Haryana state government aims at curbing female foeticide by ensuring early pregnancy registration. It mandates ultrasound centers to register pregnant women. Critics argue it violates privacy rights and deters women from seeking legal abortions. Could push women towards unsafe abortions outside formal healthcare systems. The mandate is in conflict with the MTP Act, which ensures confidentiality in abortion cases.