Introduction
Abortion in particular has always raised ethical questions because it means taking away a human life. Those who support liberal abortion make the claim that it is purely a woman's decision, based on legal justification. While those opposed frequently answer the former with a moral or religious justification. India has come a long way from outright criminalising abortion to legalising it under certain circumstances to ultimately approaching abortion legislation more freely.
The Indian Penal Code of 1860 and the Code of Criminal Procedure 1898 classified abortion as a "criminal conduct" in British India, however, the relaxation in abortion laws in India began in 1964. The Government established the Shantilal Shah-led Shah Committee in the 1960s as a result of the high maternal death and morbidity rates brought on by unsafe abortion. The Committee was established to investigate maternal mortality as a result of septic abortions. The Committee advocated legalising abortion for both compassionate and medical reasons after thoroughly examining the sociolegal and medical aspects of the procedure which ultimately led to the “Medical Termination of Pregnancy Act of 1971” (MTP Act).
Current Status of Abortion Laws in India
Abortion in India was considered illegal in India, until the late 1960s and upon committing the offence of Abortion, a woman could face three-year imprisonment and/or a fine under Section 312 of IPC.
Following a spike in the incidence of induced abortions in the 1960s, the Union government mandated the formation of the Shantilal Shah Committee to consider the country's abortion legalisation.[1] The Medical Termination of Pregnancy (MTP) Act was put into effect in 1971 with the goal of lowering maternal mortality caused by unsafe abortions. This law establishes the guidelines for how and when a medical abortion ought to be performed. It is an exemption to the Indian Penal Code (IPC) provisions 312 and 313.
In accordance with Section 312 of IPC - A person who "voluntarily induces a woman with child to miscarry"[2] is punishable by up to three years in prison, a fine, or both, unless it was done with good intention and the goal was to preserve the pregnant woman's life. The section is also applicable to a woman who intentionally miscarries.[3] Furthermore, according to Section 313 of the IPC, a person who “induces a miscarriage without the pregnant woman's agreement, regardless of whether she is at an advanced stage of pregnancy”, shall be punished with life in prison or a period of imprisonment that may last up to 10 years, as well as a fine.[4]
Background and Evolution of the MTP Act from 1971 to 2021
The MTP Act underwent its most recent modification in 2021. Prior to that, new regulations were introduced in 2003 to permit the use of misoprostol, an abortion drug that was discovered back then, to end a pregnancy up to seven weeks into it.[5] The original Act was subject to broader modifications in 2020, and the revised Act took effect in September 2021.
Abortion is allowed following a medical opinion under certain conditions, according to the Medical Termination of Pregnancy (Amendment) Act of 2021. The 2021 Act expanded the maximum gestational period within which a woman may obtain a medical abortion from the 20 weeks allowed by the 1971 Act to 24 weeks. This updated upper limit, however, is only applicable in certain circumstances. The term ‘gestational age’ is medical terminology, used to calculate (in weeks) how far along a pregnancy is. It is based on the beginning day of the woman's most recent menstrual cycle.
Another significant change was that, up to 20 weeks of gestation, MTP could not be accessible based solely on the opinion of a single certified medical practitioner, rather it requires two licensed medical professionals' for such opinions. These opinions are requisite between 20 and 24 weeks. In contrast, under the previous version of the Act, a medical abortion up to 12 weeks of pregnancy required the approval of one registered doctor and abortions up to 20 weeks required the approval of two doctors.
The Medical Termination of Pregnancy (Amendment) Act, 2021
Medical termination of pregnancy is allowed under the 2021 Act if it is supported by a medical practitioner’s opinion and is undertaken for the following reasons:
Firstly, the pregnancy, if continued, could risk the life of the woman; Secondly, if it could harm the woman's bodily or mental health; or thirdly, if there is a significant chance that the baby will be born with a serious physical or mental defect.[6]
It is also possible to terminate the pregnancy up to 24 weeks of gestational age, supported by the opinion of two registered medical practitioners under the following conditions:[7]
(1) The woman is ?? either a survivor of sexual assault or rape or incest;
(2) The Woman is a minor;
(3) Her marital status has changed during the ongoing pregnancy i.e. she might have become a widow or has divorced her husband;
(4) The woman has major physical disabilities or mental illness;
(5) Due to a prenatal anomaly that makes the infant incapable of living or because, if the child were to be born, it would be severely handicapped;
(6) If the woman is in a humanitarian setting or disaster, or emergency situation as declared by the government.
Additionally, if pregnancy must be terminated beyond 24 weeks of gestation, only a four-member Medical Board, established in each State under the Act, may do so on the basis of foetal abnormalities. Despite any of the aforementioned restrictions, the legislation also stipulates that an abortion may be performed whenever necessary by a single licenced medical professional in order to preserve the pregnant woman's life.[8] In the case of ‘Unmarried women’, due to the absence of the spousal consent barrier, such unmarried women may also seek an abortion under the aforementioned conditions. However, a guardian's approval is necessary if the woman is a minor.[9]
Judicial Decisions in Abortion cases
Landmark Supreme Court Judgment- X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, C.A 5802/2022
Bench - Justice D.Y. Chandrachud, Justice J.B. Pardiwala, Justice A.S. Bopanna
Facts: The case arose when a 25-year-old unmarried woman approached the Delhi High Court seeking termination of her pregnancy of 23 weeks and 5 days stating that her pregnancy arose out of a consensual relationship, however, she would be unable to give birth to the child as she was an unmarried woman and that her partner had refused to marry her. Unfortunately, a division Bench of the Delhi High Court refused interim relief to her, following which she approached the Supreme Court.
In its latest landmark judgment, the Supreme Court on September 29, 2022, offered a more progressive interpretation of Rule 3(B), which extends the right to abortion to 24 weeks for only certain categories of women in certain circumstances :
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The court has dismissed the distinction between married and unmarried women as criteria for terminating a pregnancy as it is ‘artificial and constitutionally unsustainable’- Furthermore, the Supreme Court was of the opinion that such distinction further encourages baseless stereotypes such as only married women are sexually active. Therefore, married/unmarried women are entitled to seek abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship. The court also held that ‘the rights of reproductive autonomy give unmarried women similar rights as married women.
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The court has also noted that the meaning of the term ‘rape’ under the Medical Termination Of Pregnancy Act has to include marital rape, as ‘any other interpretation (of rape) would have the effect of compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her.
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In this case, the apex court has made a “purposive interpretation” that makes the common thread in Rule 3B “a change in a woman’s material circumstance”. While the ruling recognises the right of unmarried women, it leaves the enforcement of the right to be decided on a case-to-case basis.
The key takeaways from this landmark Supreme Court judgement were:
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The artificial distinction between married and unmarried/single women is not constitutionally sustainable.
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Martial rape falls within the definition of rape for purpose of MTP Act.
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Doctors or registered medical practitioners must refrain from imposing extra-legal conditions on women seeking to terminate their pregnancy in accordance with the law.
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Woman’s opinions should be given importance while evaluating ‘injury to mental health under the MTP Act. Consent from husband/partner or parents is not required. If the woman is a minor or mentally ill then her guardian’s consent shall be taken into consideration.
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The state must take steps to ensure the right to reproductive autonomy and dignity for all citizens.
Older Cases:
- K.S. Puttaswamy v. Union of India and others:[10]
The decision by a pregnant person to continue a pregnancy or not is part of that person's right to privacy as well as their right to life and personal liberty under Article 21 of the Constitution was held by the Supreme Court held in this landmark Right to Privacy judgment in 2017. Despite the fact that the country's current laws do not permit unconditional abortions, the judgment propagated a progressive view of women’s rights.
- D. Rajeswari vs State Of Tamil Nadu And Others:[11]
The case involves an unmarried 18-year-old woman who is requesting the issuance of a directive to end the pregnancy in her womb on the grounds that carrying the unintended child for three months caused her to become mentally ill and the continuation of the pregnancy has caused great mental anguish, which would seriously harm her mental health given that the pregnancy was the result of rape. The request to end the pregnancy was approved by the court.
- Nisha Malviya and Anr. Vs. State of M.P:[12]
The accused raped a young girl, who was around 12 years old and caused her to become pregnant. Two further co-accused are accused of taking this girl and aborting her unborn child. The first accusation against them is that they caused a miscarriage without the girl's consent. The Court found all three defendants guilty of terminating a pregnancy without the mother's or the girl's consent.
Several women annually resort to assistance from the apex court and High Courts, when medical boards reject their application to access MTP beyond the gestational upper limit (now 24 weeks), seeking permission to abort a pregnancy, mostly in cases where it is a result of sexual assault or when there is a foetal abnormality. Furthermore, according to a report by attorney Anubha Rastogi for the Pratiya Campaign, 243 abortion-related petitions were heard by High Courts nationwide in the 15 months before August 2020.[13] The Calcutta High Court authorised a medical abortion in February of this year for a 37-year-old lady who was 34 weeks along in her pregnancy and had been diagnosed with an incurable spine disorder in the foetus.[14] This ruling authorised abortion for the country's longest gestational period to date.
Issues with MTP acts and the Abortion laws
The issue for unmarried women is unaddressed, despite the fact that the law recognises changes in a pregnant woman's marital status with her spouse, such as divorce and widowhood.[15] It is a highly regulated process in which the pregnant woman's decision-making authority is transferred to the Recognized Medical Practitioner (RMP), who then has broad discretion to decide whether or not to perform the abortion.[16]
A 2018 report published in the Lancet estimates that as of 2015, India saw 15.6 million abortions annually. According to the MTP Act, only gynaecologists or obstetricians are permitted to perform abortions. However, a 70% shortfall of obstetrician-gynaecologists is reported in the Ministry of Health and Family Welfare's 2019–20 report on Rural Health Statistics. Critics claim that because the law prohibits abortions performed at any time, it forces women to acquire unsafe, illegal abortions. According to statistics, 8,00,000 unsafe and illegal abortions are carried out annually in India, many of which result in maternal death.
Analysis of the landmark ruling - Roe v. Wade
The Supreme Court took a huge step backwards for women's rights in the U.S by overturning the landmark ‘Roe v. Wade’ [17]decision from 1973, which granted women in America the constitutional right to have an abortion before the foetus is viable outside the womb or before the 24-28 week period. The step incited public outrage and has raised questions on access to healthcare for women.
The U.S. Supreme Court while addressing the pertinent issues decided that the fourteenth amendment's due process provision acknowledged women's rights to privacy. Despite the right to privacy not being specifically mentioned in the due process clause, the Hon'ble Supreme Court acknowledged the right by examining the circumstances leading up to the case.
The Supreme Court declared that "under a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed "[18] prior to Roe v. Wade decision.
In light of all the circumstances, the Court decided that the woman's right to regulate her pregnancy is also protected by her right to privacy. The fourteenth amendment of the United States Constitution safeguarded women's basic right to choose abortion. The honourable Justices recognised that there is a significant risk to a woman's bodily and mental health if she is forced to carry on with an unwanted pregnancy.
The State argued that constitutional protection starts at conception, but the Court disagreed. Instead, it said that the U.S. Constitution does not define the word "person". Only those who are born or naturalised are protected by it. After reviewing related cases, the Court concluded that as unborn infants have never been recognised by the Constitution as "persons," they are not entitled to legal protection. The legal definition of an unborn child's status as a person was determined by considering many points of view on the onset of life.
The second question, whether a woman has an unalienable right to an abortion, was rejected by the court. The right to privacy is not acknowledged as a fundamental right by the Constitution. To ensure the proper operation of society, the State has the necessary authority to impose restrictions on rights.
The most important result of this verdict was the creation of a framework for balancing women's rights and state interests. The right of the State to safeguard human life may collide with a pregnant woman's rights, as the Court rightly noted. The Supreme Court divided the pregnancy into three 12-week trimesters while keeping in mind the interests of both parties.
Recommendations And Conclusion For India
However, despite India's abortion law being generally progressive, it is flawed in that it does not grant a woman the sole authority to make this choice about her body. A doctor, or a group of doctors, and in some cases judges, who may be biased and have preconceived beliefs of what is good and wrong, must approve her choice. This is obviously unfair. Expert advice is valuable, of course, but a woman should be allowed to use it however she sees fit after consulting with her doctor.[19] Because it is her body and her future that is at issue, the woman's voice must be crucial when making reproductive decisions, such as whether to have a baby or not.
The goal of all abortion legislation worldwide should be to ensure that women may access safe abortion services at any stage of pregnancy rather than placing obstacles in the way of their access to abortion. According to the State of the World Population Report 2022 by the United Nations Population Fund (UNFPA), unsafe abortions are the third greatest cause of maternal mortality in India,[20] and every day, close to eight women pass away from complications associated with unsafe abortions.[21] In India, 67% of abortions between 2007 and 2011 were deemed unsafe[22]. It goes without saying that restricting access to safe abortion practices encourages more women to engage in potentially risky abortion methods.
According to the Global Gender Gap Index 2022, India comes in at a pitiful 135th place out of 146 nations.[23] It performs the worst—146th—on the gender parity parameter of "health and survival". This serves as yet another reminder that the nation must do everything possible to "ease living" for women in order for them to lead healthy and economically independent lives. A key component of the campaign to provide women with the ability to determine the course of their own lives is to ensure that they have access to safe abortion services without restrictions or outside veto powers.[24] With the recent landmark, SC judgement on The MTP (Amendment) Act 2021, one can expect progressive times in the future.
[1]Diksha Munjal, Explained | Indian laws on abortions, THE HINDU (Jun 28, 2022, 09:05 PM), https://www.thehindu.com/news/national/explained-what-are-indias-laws-abortions-amid-roe-v-wade/article65567494.ece.
[2]Indian Penal Code, 1860, § 312, No. 45, Acts of Parliament, 1860 (India).
[3]Ibid.
[4]Indian Penal Code, 1860, § 313, No. 45, Acts of Parliament, 1860 (India).
[5]Diksha Munjal, Explained | Indian laws on abortions, THE HINDU (Jun 28, 2022, 09:05 PM), https://www.thehindu.com/news/national/explained-what-are-indias-laws-abortions-amid-roe-v-wade/article65567494.ece.
[6]INDIA CODE, https://www.indiacode.nic.in/bitstream/123456789/1593/1/A1971-34.pdf (last visited on Sep. 19, 2022).
[7]Sohini Chowdhury, Supreme Court Explores Ways To Interpret MTP Rules To Recognize Unmarried Woman's Right To Abortion; Reserves Judgment, LIVELAW (Aug. 23, 2022 10:26 PM) https://www.livelaw.in/top-stories/supreme-court-explores-ways-to-interpret-mtp-rules-to-recognize-unmarried-womans-right-to-abortion-207301.
[8] Medical Termination of Pregnancy Act, 1971, § 3, No. 34, Acts of Parliament, 1971 (India).
[9] Medical Termination of Pregnancy Act, 1971, § 3(4)(a), No. 34, Acts of Parliament, 1971 (India).
[10]K.S. Puttaswamy v. Union of India and others (2017) 10 SCC 1.
[11] D. Rajeswari vs State Of Tamil Nadu And Others 1996 CriLJ 3795.
[12] Nisha Malviya and Anr. Vs. State of M.P 2000 CriLJ 671.
[13] PRATIGYA, https://pratigyacampaign.org/ (last visited on Sep. 19, 2022, 12:49 PM); Akshi Chawla, Why 243 Indian women had to ask a court for permission to abort, BUSINESS STANDARD (Sep. 5, 2020, 11:05 AM), https://www.business-standard.com/article/health/why-243-women-had-to-ask-a-court-for-permission-to-abort-says-report-120090500257_1.html
[14]Prithvijit Mitra, Calcutta high court allows abortion at 34 weeks over birth defect concern, THE TIMES OF INDIA (Feb. 18, 2022, 07:15 AM), https://timesofindia.indiatimes.com/city/kolkata/cal-hc-allows-abortion-at-34-wks-over-birth-defectconcern/articleshow/89650996.cms#:~:text=KOLKATA%3A%20A%2037%2Dyear%2D,foetus%20had%20an%20incurable%20disorder.
[15] DRISHTI IAS, https://www.drishtiias.com/daily-updates/daily-news-analysis/abortion-law-in-india (last visited on Sep. 19, 2022, 06:06 PM).
[16] Ibid.
[17]Roe v. Wade, 410 U.S. 113 (1973).
[18] Ibid.
[19] State of the Word Population Report 2022, SEEING THE UNSEEN: The Case for Action in the Neglected Crisis of Unintended Pregnancy, UNFPA INDIA, https://india.unfpa.org/en/seeing-unseen (last visited on Sep. 17, 2022, 08:56 PM).
[20] State of the Word Population Report 2022, SEEING THE UNSEEN: The Case for Action in the Neglected Crisis of Unintended Pregnancy, UNFPA INDIA, https://india.unfpa.org/en/seeing-unseen (last visited on Sep. 17, 2022, 08:56 PM).
[21] Ibid.
[22]Esha Roy, Report: 67% abortions in India unsafe, cause nearly 8 deaths every day, INDIAN EXPRESS (Mar. 31, 2022 11:43 AM), https://indianexpress.com/article/india/india-unintended-pregnancy-abortion-7845655/.
[23]WORLD ECONOMIC FORUM, Global Gender Gap Report (2022): Insights, http://reports.weforum.org/globalgender-gap-report-2022 (last visited on Sep. 17, 2022, 11:34 PM).
[24]Supra, note 20.
