Abortion Rights and legislation in India
- January 9, 2023
- Posted by: OptimizeIAS Team
- Category: DPN Topics
Abortion Rights and legislation in India
Context: Recently, the Supreme Court of India stated that differentiating between married and unmarried women for allowing termination of pregnancy on certain exceptional grounds is unconstitutional.
- According to many activists, the court’s judgment is progressive. However, the ground reality has not changed much; as the Court verdict lacked any clear indication or order for the government to amend the Medical Termination of Pregnancy Act to include unmarried women under the extended 24-week ambit.
- Unless the provisions under the Act are changed, women will find it difficult to seek abortion in health facilities.
- This will promote illegal and underground abortions, which will increase the health-related risk for women.
- In the K.S. Puttaswamy v. Union of India and other cases, the Supreme Court had held that the decision taken by a pregnant person related to pregnancy is part of her right to privacy under article 21.
Medical Termination of Prganancry Act (MTP Act ), 1971
- The idea of terminating a pregnancy cannot originate by choice and is purely circumstantial. Under the law (section 3 of the MTP Act 1971), the doctor can perform an abortion in the following situations:
- If the pregnancy would be harmful to the life of the patient or affects her physical or mental health. The doctor will need to consider the circumstances of the patient to figure out if the pregnancy will harm her mental health, on a case to case basis.
- If there is a good chance that the child would suffer from physical or mental abnormalities which would leave him or her seriously handicapped.
- If pregnancy occurred as a result of a failure of contraception (but this is only applicable to married women).
- If pregnancy is a result of sexual assault or rape.
Conditions for Termination of Pregnancy
- If the pregnancy has not exceeded 12 weeks, only one doctor needs to be satisfied that the conditions have been fulfilled.
- If the pregnancy has exceeded 12 weeks and is below 20 weeks (now amended to 24 weeks), two doctors need to be satisfied that the conditions have been fulfilled.
- The gestation period does not matter if a doctor feels that an immediate abortion must be conducted to save the life of the patient.
- The doctor who determines if it is necessary to perform an abortion and performs it needs to be a ‘registered medical practitioner’ under the law.
- Abortion of under 4 to 5 months pregnancy- The punishment for getting an illegal abortion is jail time of up to 3 years and/or fine.
- Both patients and doctors are considered to have committed a crime unless it fulfills the above condition.
- 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 fine unless it was done in good faith to save the life of the patient.
- 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 fine.
- Abortion resulting in death – 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 fine.
- If the abortion was conducted without the patient’s permission, the punishment is a jail for life.
- Intentionally causing the death of a foetus can also be prosecuted under other provisions of the Indian Penal Code, 1860 under which the punishment can extend up to 10 years.
Consent of a Person
- The doctors have a duty to get the consent of a pregnant woman in order to perform the abortion.
- If a woman is below 18 (a minor) or suffering from a mental illness, the doctors have a duty to get the guardian’s permission as well.
- If a doctor performs an abortion without consent, he or she can be punished with a jail term extending up to 10 years and fine.
Medical Termination of Preganancy Amendment Rules 2021
- The Medical Termination of Pregnancy Amendment Rules, 2021, define new categories of vulnerable women who are allowed termination up to 24 weeks upon meeting certain conditions and with the permission of two doctors.
- These include minors, survivors of sexual assault and those with foetal malformation.
- Others may seek abortion up to 20 weeks with the permission of one doctor upon meeting certain criteria.
- Earlier you needed the permission of one doctor for termination up to 12 weeks, and two doctors for 12 to 20 weeks.
- The amended law provides for setting up of State-level medical boards to decide if a pregnancy may be terminated after 24 weeks.
- However, there are obstacles posed by the POCSO Act, 2012, in providing services. Section 19 of the Act requires any person aware of a minor engaging in sex to report the matter to the local police even if it was a consensual act as the law pegs the age of consent at 18.