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Recent issues related to India’s law on abortion

GS Paper 2

Syllabus: Government policies and interventions

 

Source: Indian Express

Context: A 25-year-old pregnant woman challenged Rule 3B of the Medical Termination of Pregnancy Rules, 2003, (in Supreme court) which allows only some categories of women to seek termination of pregnancy between 20 and 24 weeks.

Background of the case:

An unmarried 25-year-old woman sought Delhi High Court’s permission for termination of a pregnancy of 23 weeks and 5 days, as her partner had refused to marry her. However, Delhi HC refused to grant her permission. So, she moved to SC.

What is India’s law on abortion?

  • Section 312 of the Indian Penal Code, 1860, criminalises voluntarily “causing miscarriage”.
  • As per the amended law (2021), termination under the opinion of one doctor for pregnancies up to 20 weeks is allowed. For pregnancies between 20 and 24 weeks, the amended law requires the opinion of two doctors.
  • Section 3B of Rules prescribed under the MTP Act: It allows seven categories of women who shall be considered eligible for termination of pregnancy up to twenty-four weeks, e.g. rape survivors, minors, change of marital status (from married to divorced), etc.
    • However, the law doesn’t recognize the situation of unmarried women.

Supreme court order:

  • Law covered ‘unmarried’ women: An amendment to the Act in 2021 had substituted the term ‘husband’ with ‘partner’, a clear signal that the law covered unmarried women within its ambit. Thus, SC allowed women to have an abortion.
    • The court ordered a medical board to be formed by the AIIMS to check whether it was safe to conduct an abortion on the woman and submit a report in a week.
  • Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom. 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.
  • Live-in relationships had already been recognised by the Supreme Court.
Features MTP Act 1971 MTP Amendment Act 2021
Medical practitioner’s opinions required -One Doctor’s opinion if termination is within 12 weeks of conception

-Two Doctor’s opinions for 20 weeks

-One doctor’s opinion till 20 weeks

-Two for 20-24 weeks

-Medical board permission for beyond 24 weeks

Gestation limit 20 weeks for all -20-24 weeks for vulnerable women e.g. rape victim

-beyond 24 weeks for ‘substantial foetal abnormalities

Privacy Not mentioned  protects the confidentiality of data related to termination and privacy of women and the case

 

Medical Termination of Pregnancy (amendment ) Act 2021

Progressive features of MTP Act 2021

    • Abortions beyond 20 weeks allowed: It allows abortion to be done on the advice of one doctor up to 20 weeks, and two doctors in the case of certain categories of women between 20 and 24 weeks.
    • Inclusive: Enhances the upper gestation limit from 20 to 24 weeks for special categories of women including survivors of rape- thus preventing the socio-economic and psychological impact of unwanted pregnancies.
    • Lowers burden on courts: Removes the limit of 24 weeks for termination of pregnancy in case of substantial foetal abnormalities, diagnosed by the newly established Medical Board– thus easing the burden on courts of writ petition for seeking abortion beyond the permitted period.
    • Maintains confidentiality: Names of the woman whose pregnancy has been terminated will be kept confidential– thus ensuring dignity and confidentiality of women.
    • De-stigmatizes relations outside marriage: Relaxes  termination of pregnancy due to contraceptive-failure condition for ”any woman or her partner’‘ – thus de-stigmatizes pregnancies outside marriage

 

However, there are serious concerns with its provisions:

    • No right to abortion at will: It has various conditions for the termination of pregnancies.
    • No recourse for rape victims: For the termination of pregnancies beyond 24 weeks, rape victims cannot approach the Medical Board (can approach in case of substantial foetal abnormalities’ only). so, the only recourse remains is through a Writ Petition.
    • No time frame for the medical board: Bill doesn’t provide the time frame within which the Medical board must make its decision – any delays may lead to further complications for women.
    • Transgender and unmarried, if they require abortion beyond 20 weeks, are not considered in the bill
    • Potential for executive overreach: Special categories of women whose gestation limit will be increased from 20 to 24 will be decided by the central government –  and not by a sovereign body like parliament
    • Doesn’t considers institutional lacunae: According to the bill only Registered medical practitioners having  experience or training in gynecology or obstetrics can perform the abortion, but according to NH&FS (2015-16) data only 53% of abortions are performed by a registered medical doctor, the rest are conducted by a nurse, midwives, family members, etc
      • Expecting the presence of two gynecologists in rural areas to ascertain the need for abortion is irrational.

India can follow the examples of the UK where pregnancy can be terminated anytime.  Importantly, the WHO does not specify any maximum time limit after which pregnancy should not be terminated. Transgender and other vulnerable communities must also come under the ambit of the bill. Also, India needs to create a cadre of certified medical practitioners including ASHA, ANM workers in its health system.

 

Insta Links

Legal status of abortion in India

 

Practice Questions:

Q. In the context of The Medical Termination of Pregnancy (Amendment) Act 2021, critically examine various issues in India’s law on abortion.

 

Democracy’s superior virtue lies in the fact that it calls into activity

(a) the intelligence and character of ordinary men and women.

(b) the methods for strengthening executive leadership.

(c) a superior individual with dynamism and vision.

(d) a band of dedicated party workers.

Answer: A

In a democracy, people elect their representatives. Democracy is successful if it has good leaders, which again depends on the intelligence and character of ordinary men and women who elects them.