ABORTION AND PREVALENT LAWS IN INDIA: CHANGE IS THE NEED OF THE HOUR

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This article is written by Aaryaki Rana of Chanakya National Law University, Patna, and curated by Naman Jain, Bennett University, Greater Noida.

If men could get pregnant, abortion would be a sacrament.” – Florynce Kennedy

The women of our country have always faced the tyranny of our long-standing patriarchal society. It is for impediments and concerns such as gender inequality, health care, income gap, and social disparities that women have to pull through and struggle for their rights every day of their existence. Despite the era of globalization and more than 30 years of liberal legislation, our country faces the predicament of women safety and access to safe abortion care.

According to Oxford Dictionaries, abortion means “The deliberate termination of a human pregnancy, most often performed during the first 28 weeks. According to Oxford Dictionaries, abortion means “The deliberate termination of a human pregnancy, most often performed during the first 28 weeks. According to Oxford Dictionaries, abortion means “The deliberate termination of a human pregnancy, most often performed during the first 28 weeks”

According to Oxford Dictionaries, abortion means “the deliberate termination of a human pregnancy, most often performed during the first 28 weeks.”According to the Medical Termination of Pregnancy Act 1971, abortion means an untimely termination of the foetus. In India, the pregnancy of a woman can be terminated until 20 weeks under the MTP Act, 1971. If after the prescribed legal period for an abortion in India, an abortion takes place, then it is called foeticide. Abortion can be carried out in two ways-

  • Medical abortion- when a woman is 7 weeks or less pregnant, she can undergo a medical abortion process. This process involves the administering of pills and medications to terminate the pregnancy. This is usually carried out under the prescription and supervision of a physician.
  • Surgical Abortion- this method is practiced when a woman wishes to undergo an abortion after 7 weeks of her gestation period.

Earlier, abortion of any kind, whether voluntary or involuntary was forbidden and considered immoral, until the landmark judgment of the US Supreme Court Roe v. Wade. After this judgment, abortion was made legal and was considered as one of the essential rights under the fundamental rights. In India, the issues regarding abortion have been subjected to several debates and discussions, but abortion is still considered as an inhumane and criminal act. The Indian Penal Code1860 deals with the laws of abortion under S. 312 to S. 316.

  1. 312 defines abortion as ‘Whoever voluntarily causes a woman with child to miscarry shall, if miscarriage be not carried in good faith for the purposes of saving life of the woman, be punished with imprisonment’. The provisions mentioned above states that an abortion conducted with or without the consent of a woman is a punishable offence, except if it is done for the protection of the mother’s life, and in no other circumstances abortion would be allowed as a matter of right. Any person if in bad faith, voluntarily causes a woman to miscarriage shall face punishment of imprisonment for up to 3 years and a fine. Under the Indian laws, abortion is illegalwhen- a woman carries a child i.e. the gestation period has begun; and a woman is quick with child, which means the mother can feel the child’s motion.

The Medical Termination of Pregnancy Act 1971has allowed a little more relaxation for a pregnant woman. This Act is formulated by the Shah Committee appointed by the Government of India in 1966 that carried out a comprehensive review of socio-cultural, legal, and medical aspects of abortion. Interestingly, the Medical Termination Act uses the term ‘medical termination of pregnancy’ to reduce the opposition form various religious groups. The objective of this Act is to improve the mental health of Indian women keeping the therapeutic grounds valid andkeepinga check on the mortality rate of the women due to the prevalent illegal abortion of the unfavored sex.

There are certain conditions under which a woman can terminate her pregnancy. These conditions have been specified under S.3 of the Act-

  • When the continuance of pregnancy is resulting in a risk to the life of a woman or of a grave injury, affecting both physical and mental health.
  • When there is a substantial risk that if the child is born, it would suffer from physical and mental abnormalities (handicap).
  • When the pregnancy is said to be the alleged outcome of rape.
  • When the pregnancy occurs due to the failure of any device or method used by a married woman or her husband for the purpose of limiting their family planning.
  • When the length of the pregnancy has not exceeded twelve weeks.
  • When the length of the pregnancy has exceeded twelve weeks but has not exceeded twenty weeks.

As an extending hand to reduce the bureaucracy for obtaining the approval of facilities, the Act has decentralized the regulation of abortion facilities fromthe state level committees to district level committees that are empowered to approve and regulate the abortion facilities.

However, there are still several hindrances with respect to the smooth functioning of this Act. The MTP (Amendment) Bill, 2020 has been successful in bringing about these changes. This bill was approved by the Union Cabinet and has raised the legally permissible limit for an abortion to 24 weeks which was earlier 20 weeks. During the period between 20-24 weeks, the opinion of minimum two doctors will be required to proceed with an abortion. Further, it has also allowed the failure of contraceptives as a valid reason of abortion for both married and unmarried women.

The plight of women in this society is never ending. Relief is evident due to such legislations, where the reproductive rights of women are considered to be an essential right of humans recognized under several international conventions (The Universal Declaration of Human Rights 1948). The increase in the gestational period during a woman’s pregnancy under the new amended Bill ensures dignity, autonomy, confidentiality, and justice for womenwishing to terminate their pregnancy. This bill strengthens the reproductive rights of women and prevents young girls from falling prey to unsafe abortion practices.

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