IS ABORTION LEGAL IN INDIA?

INTRODUCTION

Abortion, or the chemical, surgical, or other methods of terminating a pregnancy, became legal
in India in 1971.Any woman terminating her pregnancy would be permitted to abort her
pregnancy as per the “Medical Termination of Pregnancy (MTP) Act,” which was approved in
1971, as long as her claims are legal. Even after the legalization of abortion in India, many
women are unaware of their rights toabortions and choose the abortions which are unsafe aside
from the proper well-being care system being the stigma attached to the process. The goal of this
paper is to look at the legal position of abortion in India, the gaps in that status, and potential
solutions for closing those gaps.

DETERMINATION OF LEGALITY OF ABORTION: “MEDICAL TERMINATION OF
PREGNANCY (AMENDMENT) ACT, 2021”

“The Medical Termination of Pregnancy (Amendment) Act” received Presidential Assent on
March 25, 2021. The Act modifies a legislation passed in 1971 to increase the count of weeks a
woman can retain her pregnancy and clarifying the definite circumstances under which a
pregnant woman can abort her pregnancy any time. While the access to abortion has been
increased by the amendment to a particular degree, it flops to focus on a crucial loophole in the
“Medical Termination of Pregnancy Act of 1971 (MTP Act),” which states that a woman has no
right to abort her child but may be permitted to terminate the pregnancy under specific
conditions and if a medical specialist (or, in cases, a medical council) finds that such conditions
are addressed.

The MTP Act was inspired by the United Kingdom's 1967 Abortion Act. The legislative purpose
was to provide a competent 'right to abortion' to pregnant women, but abortion has never been universally seen as a viable option. As a result, the lawmakers had no intention of making
abortion legal.

Despite its long life, the structure endures to suffer implementation problems, process
uncertainty, and interpretive conflicts, all of which are assisted by a flimsy legislative basis that
approaches the problem from a medico-legal instead of a rights-based viewpoint. In addition,
other laws have had a significant influence on the legislation, and it has not stored rapidity with
significant advancement in medical technology.

WAS IT QUESTIONABLE TO LIBERALIZE“ABORTION IN INDIA?”

Unfortunately, rather than focusing on women's rights, the strategy taken to develop a legal
structure for medical termination of pregnancy was more focused dealing with issues like
planned parenthood and possible criminal charges against medical practitioners. In truth, the Act
and its predecessors were more concerned with framing abortion as a public health issue than
with womens rights. Legislators and doctors worried about India;s fast growing population
pushed for a more liberalized abortion law, not because of any feminist movement. Moreover,
the MTP Act has ingrained a holding that onlyauthorized Medical specialistwill direct MTPs,
despite knowing that non-allopathic specialist was effectively conducting MTPs.

According to the Preamble of the MTP Act, it is an Act to provide for the termination of certain
pregnancies by registered medical practitioners and for matters linked with or incidental thereto."
While obtaining approval from a woman who is pregnant is required by law, it does not
emphasize on the right of the women to decide whether she is willing to carry on the pregnancy
further or not. Due to which, the MTP Act's argument that it "is limited to the liberalization of
conditions under which women may have access to abortion services supplied by licensed
medical practitioners" is correct.

ABORTION RECOGNISED AS A“HUMAN RIGHT”

Human rights are the rights that everyone must have access to, regardless of race or gender. The
right to life is the essential human right, to which no exceptions are there and which cannot be
questioned.“The International Covenant on Civil and Political Rights, Article 6(1),” bans
arbitrary death. However, this privilege presents a number of contentious concerns. The right to
abortion is one of these problems.

Because society was vehemently opposed to abortion, it was not previously declared as a right.
Terminating a pregnancy has been referred to as "foetal murder" on occasion. Most of the
nation’s now addresses the medical termination of pregnancy as a human right, according to the
historic Roe v. Wade (1971) judgment of the United States Apex Court in 1971. Many others,
however, are opposed to it, and some are of the opinion that it should be made illegal.
Individual rights to life, liberty, and happiness favors the freedom of a woman to decide whether
or not to abort her child. The procreative health of a woman has a great influence her procreative
choices. Procreative rights are addressed as crucial for women's human rights and development.
Every woman has complete authority over and regulation of her body, commonly known as
physical rights. As a result, abortion is frequently seen as a crucial human right for women.

LEGALIZING ABORTION IN INDIA: A GOOD IDEA.

Surprisingly, the Ministry of Health's Committee created in 1964 to investigate the subject of
abortion legalization recommended that it be permitted on eugenic reasons. "Both parties should
undergo a health examination before being permitted to marry," said Dr. H.N. Shivapuri, another
Committee member. The ones who are unsuited to be fitter parents to fitter children should be
sterilized before to getting married. The matter of “Fundamental Rights” should not be allowed
to be in the way since the nation's right to live and flourish overrides the right of an individual to
decrease “living and health standards." Thankfully, this Orwellian opinion did not make it into
the final law, but it sheds light on the circumstances around the MTP Act's passage and
reasoning.

With the aspect of the greater clash to control the increasing populace, it becomes obvious that
the MTP Act had nothing to do with a woman's ability to select her own procreative options. The
Supreme Court ruled in the matter of Suchita Srivastava v. Chandigarh Administration
(2009) that such restrictions are anti-democratic and violates Article 14 of the Constitution of
India, which ensures equal protection under the law.

FOR COMMITTING AN ILLEGAL ABORTION, THERE IS A PUNISHMENT

It is vital to say that in India, the medical termination of pregnancy that does not fit the
mentioned conditions is regarded as a crime under Indian law. The grounds for doing so are as
follows:

1. Abortion of a pregnancy that is between 4 to 5 months: Having an illegal abortion can
result in imprisonment for a period of three years or fine. Both the mother and her doctor
are considered criminals unless they acted bona fide to save the life of a mother.

2. Abortion after 5 months of pregnancy: If the termination of pregnancy is done while the
foetus is moving, the punishment increases. Quickening is a term for when this happens
between 17 and 20 weeks of pregnancy. Unless they acted bona fide to save the life of a
mother, then the mother as well as the medical practitioner may face imprisonment for a
period of seven years and fine.

3. Forced abortion or abortion with no permission of a mother: The culprit might face a ten-
year prison sentence and a fine if they compel the woman to have an abortion or conduct
one without her consent.

4. Death due to the of a blundered or unskilled termination of pregnancy: If a patient dies
due to a blundered or unskilled termination of pregnancy, the medical practitioner who
carried out the procedure may face imprisonment for a period of ten years and a fine. Life
in jail is the penalty for conducting an abortion without the consent of the patient.

5. Intentionally murdering a foetus: The intentional death of a foetus is punishable under
numerous sections of the “Indian Penal Code, 1860,” with an imprisonment for a period
of ten years in.

IN INDIA, IS IT LAWFUL FOR AN UNMARRIED WOMEN TO GET AN ABORTION?

In India, all women have the choice to decide whether to terminate her pregnancy or not, but
women who have not been married suffer the brunt of this act. Medical termination of pregnancy
up to 9 weeks and surgical abortions up to 20 weeks of pregnancy were permitted under the
“Medical Termination of Pregnancy Act (MTP) of 1971.”The Medical Termination of Pregnancy
(Amendment) Bill of 2020”extended the time in which a woman can terminate her pregnancy
while also limiting the situations under which it can be carried out. While the MTP Act of 1971
requires the opinion of one doctor for abortions occurring within a period of 12 weeks of
pregnancy and the opinion of 2 doctors for the termination of pregnancy occurring between 12
and 20 weeks of pregnancy, the amended Act of 2021 allows for the advice of one doctor for
abortions occurring within 20 weeks of pregnancy and the advice of two doctors in some cases
occurring between 20 and 24 weeks of pregnancy.”

According to a survey performed in the states of Bihar and Jharkhand in 2007-2008, 549
unmarried women aged 15 to 24 had abortions. According to a Guttmacher report, India has
around 15.6 million abortions every year. In a second survey of unmarried female college
students done at the same time, it was shown that 9% of women had an unwanted pregnancy
with no clear symptoms. Under the 2021 Act, the women who are not married have the choice of
legally terminating of pregnancy.

The increased rate of abortion among the women who are married and those who are not in India
focuses on the compelling requirement educational programmes related to sex knowledge,
bettered conversation between children and their parents, and male partner education in order to
cultivate a healthy and more responsible mindset towards female reproductive health.

ABORTION IS LEGAL UNDER CERTAIN SITUATIONS

Indian women who are not married have the legal choice of medical termination of pregnancy.
The doctor just needs the woman's written agreement if she is single and above the age of 18. If
the woman who is not married is below 18 years of age, written agreement from a guardian is
necessary carry out the termination of pregnancy. In the following circumstances, unmarried
women can seek legal pregnancy termination:

 If the pregnancy was caused by rape or from types of sexual assault.
 If the pregnancy poses a danger to the physical or mental health of mother or baby.
 If there's a danger the baby may be born with physical deformities.
 If the pregnancy is the result of unsuccessful contraception.
As per the recent survey, 15% of men and 4% of women claimed to having had extramarital
affairs. Another cause for concern is the rising rate of sexual abuse. As per the 2007 study by
India's Ministry of Women and Child Development, 150 million girls and 73 million boys”
below the age of 18 have been compelled to engage in sexual coition or have been exposed to
various types of sexual abuse. Pre marriage sexual interactions results in unexpected conception,
which are almost invariably aborted due to the considerable communal and financial load on the
family.

CONCLUSION

Though the Indian judicial system has supported post-20-week termination of pregnancy among
women, the lack of a system that prioritizes the choice of women and a strong statute that spells
out specific abortion processes may be felt strongly. Regulations that support women's
procreative choices must be created in an independent India. If the standards described in this
article are satisfied, abortion is undoubtedly legal in India. Even India's upgraded laws regarding
the medical termination of pregnancy gives medical practitioners, and not the women, the final
say in whether or not to abort her child. As a result, India will adopt a progressive stance toward
abortion.

REFERENCES

1. https://www.dw.com/en/abortion-in-india-bridging-the-gap-between-progressive
legislation-and-implementation/a-59853929.
2. https://www.who.int/india/news/detail/13-04-2021-india-s-amended-law-makes-abortion-
safer-and-more-accessible.
3. https://reproductiverights.org/parliament-india-passes-abortion-reform-entrenches-
barriers-access/.
4. https://constitutioncenter.org/interactive-constitution/blog/landmark-cases-roe-v-wade
5. https://uniteforreprorights.org/resources/suchita-srivastava-anr-v-chandigarh-
administration/

AUTHOR- ISHANI