Need for Progressive Laws in the Matter of Abortion in India: Arushi Agarwal & Bulbul Kumari

NEED FOR PROGRESSIVE LAWS IN THE MATTER OF ABORTION IN INDIA

Author: Arushi Agarwal

Co-Author: Bulbul Kumari

Dharmashastra National Law University, Jabalpur

ISSN: 2582-3655

ABSTRACT

Abortion has always remained a very controversial topic. The laws on abortion in India have permitted the medical termination of pregnancy on broad legal grounds but still women faces the problem of unintended pregnancy. Abortion law was liberalized more than four decades ago, but still, the majority of women in India have limited access to safe abortion services.  The authors in this paper have tried to bring out the fallacies in 49 years old law. For the last few years, we have come across a lot of cases where abortion was allowed after 20th week, despite the restriction on termination of pregnancy. The restriction on abortion after twenty weeks into pregnancy is too early to recognise the foetal viability for which we need progressive abortion laws. The nationwide lockdown due to COVID-19 pandemic has resulted in many restrictions. India has protected abortion as an essential service but women are struggling to get medical help as there is no transport services, limited health care and movement restriction. This necessitated the legalisation of abortion for these groups of women who couldn’t travel due to the complete lockdown. The recent judgements in the paper showed victory for women’s reproductive rights and the proposed amendment in the cabinet to increase the time to 24 weeks further strengthens the right of the women. The paper also aims to prove that the right to abortion is a part of Article 21 guaranteed under the Indian Constitution. This paper synthesizes recent cases on abortion scenario in India. The researchers have tried to explore the factors of unsafe abortions, lack of awareness of the legality of abortion services, affordability and accessibility of safe abortion services in India. This paper aims to critically review the present scenario of abortion in India.

Keywords– Abortion, Affordability, Accessibility, Unsafe Abortions, COVID-19

INTRODUCTION

“There is no freedom, no equality, no full human dignity and personhood possible for women until they assert and demand control over their own bodies and reproductive process…The right to have an abortion is a matter of individual conscience and conscious choice for the women concerned.”   – Betty Friedan[1]

Abortion is an issue which often comes with the glaring questions of morality, infanticide, suicide, women’s right and autonomy. Abortion is said to occur when the life of the foetus or embryo is destroyed in the woman’s womb or the pregnant uterus empties prematurely. It is the most controversial ethical issue because it relates to taking of human life. There are various reasons as to why women seek abortions. Abortion remains the most sensitive matter in most of the countries. Lawful abortion is an important public health issue because of its negative association with the social, economic and health outcomes for both women and families.[2] The cases arising have been decided by courts only based on extreme emergency viz. of the likelihood of mental and physical damage to both the mother and the foetus/child.[3]

ABORTION AND THE LAW IN INDIA

Abortion in India is governed by the Medical Termination of Pregnancy Act, 1971(MTP Act) which provides the medical practitioners with a wide discretion for deciding whether an abortion is justified or not based on health and humanitarian reasons.[4]

The Indian Penal Code have made the act of causing the miscarriage of a woman with the child an offence under Section 312 when not done in good faith, which also prescribed the punishment between three years to seven years that increases with the increasing period of pregnancy.  The Act puts a bar on abortion after 20 weeks of pregnancy except in a situation avoiding which can cause a great risk to the life of the woman. One of the most striking and progressive points about this law is that it presumes that the anguish caused to a woman because of being raped constitutes a grave injury to the mental health of the pregnant woman.[5]

Even though the maximum limit within which the foetus can be aborted is 20 weeks according to the MTP Act, but still the courts in India are allowing the termination beyond the limit for the well-being of the mother or when the foetus develops serious ailments if born. There are various cases in recent where the courts have allowed the women to terminate the pregnancy.

Recently, Rajasthan High Court in the case of State of Rajasthan and Ors. vs. S & Anr.,[6] delivered a significant judgement in regards to the matter of supremacy of women’s autonomy in the abortion. In the present case, a minor girl was sexually assaulted whereby she was unfortunately conceived. She moved an application to the District Court through her mother seeking permission for termination of her pregnancy. The application was dismissed after she was medically examined by the Chief Medical Officer since her pregnancy exceeded 20 weeks.

The minor then approached the High Court. The single-judge bench of High Court held that the foetus in the womb had a right to life as guaranteed under Article 21 of the Constitution. The bench held its decision because according to the medical report on the termination of pregnancy, there was no serious threat to the life of the minor. The court gave the right to the life of the child more precedence over the victim’s right to undergo medical termination of pregnancy.

The court observed that the petition was filed by the victim’s mother who could not have perceived the feeling of a mother carrying a child in her womb. The court also held its decision on the fact that an NGO had volunteered to take care of the child after its birth and the child will thus get requisite care and attention.

The State Government filed an appeal against the said judgement, invoking the doctrine of parens patriae to protect the rights of future victims.[7] It is to be noted that by the time the appeal was filed, the victim would already have given birth to the child. The court in an appeal set aside the judgement of the Single Bench and held that a women’s right to privacy, dignity and bodily integrity is a fundamental right guaranteed by Article 21 of the Constitution. The court gave the precedence to the right of the pregnant women in the matters of abortion over the right of the foetus.

In the recent case of Mr X vs. State of Maharashtra,[8] a minor girl was raped by her father. The mother of the victim filed a petition seeking permission for medical termination of the pregnancy of her 24 -week old foetus. The Division Bench of Justice Nitin Jamdar and Justice NR Borkar directed the Medical Board to medically examine the victim and give the report as to whether it is advisable to permit the medical termination of pregnancy of minor rape survivor. The mother of the victim took her to the hospital for the termination of the pregnancy but she was denied medical termination of pregnancy as the foetus was over 20 weeks old and medical termination of pregnancy of over 20 weeks old foetus is not permissible under Medical Termination of Pregnancy Act, 1971.

The court held that “Having considered the opinion of the Medical Board that the continuation of the pregnancy will be physical and mental stress for the minor mother, the stand the Petitioner and the minor, and the circumstances leading to the pregnancy, it would be necessary to permit the medical termination of pregnancy.”

In the recent case of Komal Hiwale vs. State of Maharashtra[9], the petitioner who was 25 weeks pregnant filed a petition seeking permission for the foetal reduction in one foetus which is affected with down syndrome. She approached the court seeking permission to medically terminate the pregnancy.

The Bombay High Court declined to grant permission for the foetal reduction because-

  1. It may not be safe for the mother
  2. Foetal reduction of one foetus may affect the other normal foetus.

In appeal the Supreme Court directed the Medical Board to be reconstituted and give its report on the grounds stated by the Bombay High Court earlier. The Medical Report stated that the foetus suffered from incurable “chromosomal abnormality” and the termination of abnormal foetus carries negligible risks to the mother “and is proven extremely safe and large series with no maternal deaths”.[10] Given the Medical Board, the Supreme Court set aside the impugned order of the High Court and permitted to undergo the foetal reduction.

However, many courts, on the other hand, have applied the Act strictissimi juris like the Kerala High Court in the case of Cry for Society & Ors. vs. Union of India & Ors.[11] have recently rejected a women’s petition to terminate her pregnancy because the yet to be born is handicapped. The bench challenged the constitutional validity of Section 3(2) of the MTP Act which allowed medical termination of pregnancy under specified conditions.

There are various reasons as to why this 49- year- old Act has to amend according to the need of the hour and medical advancements.

  1. Disregard for the reproductive autonomy guaranteed under Article 21

Article 21 of the Constitution of India guarantees to every person the Right to Life and Personal Liberty.  The courts have interpreted Article 21 to include the right to reproductive choices. The Supreme Court in the case of Suchita Srivastava vs. Chandigarh Admn [12], has recognized the women’s right to reproductive choices as a part of ‘personal freedom’ guaranteed under Article 21 of the Constitution of India. The court said that to procreate or abstain from procreating is a women’s right to privacy, dignity and bodily integrity that should be respected.

In B.K. Parthasarathi vs. Govt. of A.P[13]., it is held that right to reproductive choices is a matter of one’s privacy, dignity, personal autonomy, bodily integrity, self-determination and right to health which is guaranteed by the Article 21 of the constitution of India.

The MTP Act does not allow women to choose abortion. Under Section 3 of the Act, it is the medical practitioners who decide whether abortion is justified or not. Also, women cannot choose to terminate her pregnancy on any ground except those mentioned in the Act. The Kerala High Court in the case of Cry for Life Society & Ors. v. Union of India & Ors. Challenged the constitutional validity of Section 3 (2) of the Act and held that all pregnancies are not allowed to be terminated, but only those who meet the exceptional circumstances that are referred to in Section 3(2) of the MTP Act. Even before the 20th week of pregnancy, the approval of the medical practitioner is required and this is a complete denial of women’s choice over their own body whereas there are countries except for Northern Ireland in the UK where women can freely obtain an abortion up to 24 weeks into their pregnancy.

  1. Delays in filing application for termination of pregnancy

According to the study conducted by Ipas Development Foundation (IDF), abortion access to around 1.85 million women was compromised across the country due to the nationwide restrictions imposed in response to the COVID-19 outbreak.[14] And the present law sometimes compels the women to give birth to a compromised child despite the availability of legal redress which is followed by delays and uncertainty. This also causes rural and poor women who have no access to minimal medical standards to resort to illegal and unsafe abortions, even leading, in the worst of cases, to the death of the woman. A report by the Foundation for Reproductive Health Services India[15] estimates that the pandemic situation could lead to additional 834,042 unsafe abortions and 1,743 maternal deaths. Most of countries like Canada, China, the Netherland, North Korea, Singapore, the United States and Vietnam go with the recognition that foetal viability in certain conditions is identified only after the sixth or fifth month of pregnancy.[16]

  1. Unsafe Abortions

As per the BBC report[17], there are cases when the concerned women do realise that they are pregnant at a very later age which made it difficult for them to make choices on their pregnancy. More than 10 women die every day due to unsafe abortions in India.[18] The need is felt for years to amend the present laws. Globally, 74 million women living in low and middle-income countries have unintended pregnancies annually which leads to 25 million unsafe abortions and 47000 maternal death every year. [19]Due to the outbreak of coronavirus, the government has imposed total lockdown in the country.

India has protected abortion as an essential service but women are struggling to get medical help as there are no transport services, limited health care, and movement restriction. Experts say that the COVID-19 crisis could push women to take abortion drugs without supervision.[20] Equitable access to safe abortion services should be a first and foremost right for pregnant women. Safe abortion services in the mainstream and legal abortion up to a proper period during pregnancy will help to reduce the death rate of the women caused by unsafe abortions.

  1. Increase in the time period

The period of abortion should be increased from 20 to 24 weeks. It is therefore required to amend the MTPA, 1971 as a proposed bill in the cabinet by the Ministry of Health and Family Welfare on March 2, 2020, which increases the period from 20th week to 24th week for abortion benefitting the victims of rape and other vulnerable women. It may be misused but the stringent check can be put in place to ensure dignity, autonomy, and confidentiality and justice for women who need to terminate the pregnancy. Women must be granted this choice, and the MTP Act must be amended accordingly to give women decisional autonomy in this case.[21]

CONCLUSION AND THE WAY FORWARD

There is a pressing need for India to liberalise the abortion laws so that women’s right to health, dignity, liberty, and privacy is not violated. We must strive to provide all women with quality abortion care with easy accessibility and affordability to safe abortion services.   Due to the coronavirus outbreak, the whole world is at standstill. To curb the infection, the government has imposed the total lockdown in the nation. To reduce the number of unsafe abortions during this pandemic, the government needs to send an advisory to state drug controllers to ensure the availability of MA drugs at pharmacies as suggested in FRHS.

A helpline number should be established nationwide to ensure abortion access is extended. An adequate supply of contraceptives and medical abortion drugs should be ensured. The use of telemedicine can be explored in India to ensure improved access to medical abortion services. France has extended the time limit for at-home medical abortion to nine weeks using medicines which can be prescribed over the phone or by video consultation by doctors or midwives. Even the UK and Germany have attempted to use telemedicine to address the abortion needs of women.[22]

A proactive stance on increasing the qualified doctors and medical facilities in rural areas will probably help in improving the conditions of pregnant women, which will be a victory for women’s reproductive rights. Awareness regarding contraceptive methods to avoid pregnancy is also needed in rural areas to avoid unsafe abortions which may also have a bad influence on the future of public health in the country affecting their quality of life and well-being.

As per medical science, abortion is possible up to 32 weeks into pregnancy in case of severe abnormalities of the foetus and when it involves the risk of a woman’s life. A relaxation of such periods should be given to the women seeking an abortion who could not go for it due to complete lockdown in the nation as they crossed the 20th week into the pregnancy. A quick decision on the cases seeking abortions after the prescribed period given in law should be made in courts to protect the women facing physical and mental agony in demanding for justice.

Proper counseling should be given to a large population of women especially in a country like India which retains much of the essential structure of a developing country, including low median incomes and a substantial portion of people lives in poor conditions. The reproductive rights of women are the pressing need of human society both in the terms of human rights and concerns for human health.


[1] Betty Friedan, Abortion: A Women’s Civil Right, 39 (reprinted in Linda Greenhouse and Reva B. Siegal), 1st edn, 1999.

[2] Aakansha Saxena, Abortion Rights in India-What Could and Should Be, 4 May 2020, The SCC Online Blog, https://www.scconline.com/blog/post/2017/05/04/abortion-rights-in-india-what-could-and-should-be.

[3] X v. Union of India, 2016 SCC OnLine SC 745; Meera Santosh Pal v. Union of India, 2017 SCC OnLine SC 39.

[4] Vineet Chander, “It’s (Still) a Boy…” Making the Pre-Natal Diagnostic Techniques Act an Effective Weapon in India’s Struggle to Stamp out Female Feticide, 36 GEO. WASH. INT’L L. REV. 453, 453, 457 (2004). 

[5] Ramalinggam Rajamanickam, Termination of Pregnancy by Rape Victims: the Dilemma in Malaysian Criminal Law, International Journal of Engineering and Technology, Vol 7, No 3.30 (2018).

[6] State of Rajasthan and Ors. V. S & Anr., (W.P.1344/2019).

[7] Swapnil Tripathi, Rajasthan HC’s Judgement on Supremacy of Women’s Autonomy in Matters of Abortion, 21 June 2020, Live Law, https://www.livelaw.in/columns/rajasthan-hcs-judgment-on-supremacy-of-womans-autonomy-in-matters-of-abortion-158680.

[8] Mr X vs State of Maharashtra, WP No. LD/VC/10 of 2020.

[9] Komal Hiwale vs. State of Maharashtra, SLP (Civil) No.7379 of 2020.

[10] SC Allows woman with Twin Pregnancy to medically terminate one Foetus with Down Syndrome, 17 June 2020, Live Law, https://www.livelaw.in/top-stories/sc-allows-woman-with-twin-pregnancy-to-medically-terminate-one-foetus-with-down-syndrome-read-order-158449.

[11] Cry for Society & ors. V. Union of India & Ors., WP (C). No. 10130 of 2013 (s).

[12] Suchita Srivastava v. Chandigarh Admn ,(2009) 9 SCC 1.

[13] B.K. Parthasarathi v Govt. of A.P., AIR 2000 AP 156.

[14] IANS, COVID-19 Lockdown:1.85 million women in India seeking abortion could not aces timely help or service, National Herald, 8th June, 2020, https://www.nationalheraldindia.com/national/covid-19-lockdown-185-million-women-in-india-seeking-abortion-could-not-access-timely-help-or-service.

[15] Impact of COVID 19 on India’s family Planning Program, Foundation for Reproductive Health Services India Report, May 2020, https://pratigyacampaign.org/wp-content/uploads/2020/05/impact-of-covid-19-on-indias-family-planning-program-policy-brief.pdf.

[16] Shailaja Chandra, Amendments to abortion law are welcome, 10 Feb 2020, The Indian Express, https://indianexpress.com/article/opinion/columns/medical-termination-of-pregnancy-bill-abortion-law-india-6259658/lite/.

[17] Pregnancy:Is it Possible not to Know?, 20 Sept 2013, BBC News, https://www.bbc.com/news/health-19660845.

[18] Ayushi Agarwal, Seeking a more progressive abortion law, 10 Feb 2020, The Hindu, https://www.thehindu.com/opinion/op-ed/seeking-a-more-progressive-abortion-law/article30777394.ece/amp/.

[19] Bindu Shajan Perappadan, Unintended pregnancy puts mother, child at risk, WHO Study, 28 Oct 2019, the Hindu,https://www.thehindu.com/news/national/unintended-pregnancy-puts-mother-child-at-risk-who-study/article29816086.ece/amp/.

[20] Roli Srivastava, Abortion in a lockdown: India says ‘yes’ but women wonder how, 16 Apr 2020, Reuters,https://www.reuters.com/article/us-health-coronavirus-india-abortion-trf/abortion-in-a-lockdown-india-says-yes-but-women-wonder-how-idUSKCN21Y2HO.

[21] Prakhar raghuvanshi and Chaaru Gupta, Why do you care about my body?- An Analysis of Abortion Laws in USA and India, Vol. IX, https://thewire.in/health/covid-19-pandemic-women-reproductive-rights-abortion-accessNLIU Law Review, Issue 1.

[22] Rupavardhini B.R. and Vrinda Agarwal, The Pandemic can’t be an excuse to overlook Women’s Reproductive Rights, 18 May 2020, The Wire, https://thewire.in/health/covid-19-pandemic-women-reproductive-rights-abortion-access.

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