ABORTION LAWS

1. Background

2. Illegal Abortions 

2.1 Abortion of under 4 to 5 months of pregnancy 

• The punishment for getting an illegal abortion is jail time of up to 3 years and/or a fine. 
• Both patients and doctors are considered to have committed a crime unless it fulfils the above condition. 

2.2 Abortion of over 5-month pregnancy 

• If abortion takes place when movements of the foetus can be sensed, the punishment is jail time of up to 7 years and a fine unless it was done in good faith to save the life of the patient. 

2.3 Abortion without consent 

• If anyone else forces the pregnant woman to have an abortion or performs one without her agreeing to it, the punishment is jail time of up to 10 years and a fine. 

• If the patient dies because of a botched abortion or an abortion carried out by an unskilled person, the doctor who conducted the operation can be punished with jail time of up to 10 years and a fine. 
• If the abortion was conducted without the patient’s permission, the punishment is jail for life. 

4. Steps Taken by the Government in India for Safe Abortions 

• To reduce maternal mortality owing to unsafe abortions, the Medical Termination of Pregnancy (MTP) Act was brought into force in 1971. This law is an exception to the Indian Penal Code (IPC) provisions 312 and 313 and sets out the rules of how and when a medical abortion can be carried out. 
• Training of ASHAs to equip them with skills to create awareness on Comprehensive abortion care issues in women in the community and facilitate women in accessing services. 
• Provision of funds to States/ UTs for the operationalization of safe abortion services at health facilities. 
• Supply of Nischay Pregnancy detection kits to sub-centres for early detection of pregnancy. 

5. Medical Termination of Pregnancy (Amendment) Bill, 2020 in India 

• The Bill proposes the requirement of the opinion of one registered medical practitioner (instead of two or more) for termination of pregnancy up to 20 weeks of gestation (foetal development period from the time of conception until birth). 
• It introduces the requirement of the opinion of two registered medical practitioners for termination of pregnancy at 20-24 weeks of gestation. 
• It has also enhanced the gestation limit for ‘special categories’ of women which includes survivors of rape, victims of incest and other vulnerable women like differently-abled women and minors. 
• It also states that the “name and other particulars of a woman whose pregnancy has been terminated shall not be revealed”, except to a person authorised in any law that is currently in force.

6. Medical Termination Of Pregnancy (Amendment) Act, 2021

• Under the Medical Termination of Pregnancy (Amendment) Act, 2021, abortion is permitted after medical opinion under stipulated circumstances. The 2021 Act increased the upper limit of the gestation period to which a woman can seek a medical abortion to 24 weeks from 20 weeks permitted in the 1971 Act. But this renewed upper limit can only be exercised in specific cases. 
• Under the 2021 Act, medical termination of pregnancy is permitted if it is backed by medical opinion and is being sought for at least one of the following reasons —
• If the continuation of the pregnancy would involve a risk to the life of the pregnant woman
• If its continuation would result in grave injury to the woman’s physical or mental health (if the pregnancy is a result of rape or failure of contraceptive used by the pregnant woman or her partner to limit the number of children or to prevent pregnancy, the anguish caused by its continuation would be considered to be a grave injury to the mental health of the pregnant woman)
• In the case of a substantial risk that if the child was born, it would suffer from a serious physical or mental abnormality
• Under the 2021 Act, Unmarried women can also access abortion under the above-mentioned conditions, because it does not mention the requirement of spousal consent. If the woman is a minor, however, the consent of a guardian is required.

• The pregnancy can be terminated up to 24 weeks of gestational age after the opinion of two registered medical practitioners under these conditions 

• If the woman is ​​either a survivor of sexual assault or rape or incest
• If she is a minor
• If her marital status has changed during the ongoing pregnancy (i.e. either widowhood or divorce)
• If she has major physical disabilities or is mentally ill
• On the grounds of foetal malformation incompatible with life or if the child is born, it would be seriously handicapped
• If the woman is in humanitarian setting or disaster, or emergency situation as declared by the government

7.Judicial Interventions

• In the landmark 2017 Right to Privacy judgement in the Justice K.S. Puttaswamy v. Union of India and others, the Supreme Court held that the decision by a pregnant person on whether to continue a pregnancy or not is part of such a person’s right to privacy as well and, therefore, the right to life and personal liberty under Article 21 of the Constitution.
• Several women annually approach 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.
• In February 2022, the Calcutta High Court allowed a 37-year-old woman, who was 34 weeks into her pregnancy, to get a medical abortion as the foetus was diagnosed with an incurable spinal condition

9. Conclusion

• India’s abortion laws are indeed meant to help emancipate its women-folk, but its application and substantive elements suffer from some serious follies. There is a need to update MTP Act to bring it in consonance with modern-day technology and medical methods. India’s medical and legal infrastructure needs improvement. Therefore, the need of the hour is for the government and elements of civil society to come together and improve the substantive and implementational elements of India’s abortion laws and policy.