ABORTION LAWS IN INDIA

Abortion - We live in a society where this word still exists as a stigma. The gravity of it can be sensed through the fact that our lawmakers have not used that term even once in the whole act. Until 1970, abortion was illegal in India; it was in 1971 when our country witnessed the introduction of abortion laws through the Medical Termination of Pregnancy Act, 1971.

This Act ensured that women had access to safe and legal abortion services in India. Earlier, there were no proper abortion services, and legalities and many women had to undergo unwanted pregnancies. To have a good development Plan in India, we need to address women’s concerns alarmingly. As per the Statistics, 1.85 million women in India do not have access to abortion services.

In 2020, the government of India had introduced MTP Amendment Bill 2020, which further was passed and became an MTP Amendment Act 2021 in March. An increase in gestation period from 20 to 24 weeks and the constitution of a medical board were some of the major amendments that were brought forth in this act.     

Before knowing about the recent changes in the Act, let’s look at how did the act come into existence in our country.  

History

Prior to 1971, abortion was a criminal offence under section 312 of the Indian Penal Code, 1860. Except in life-threatening cases, conducting an abortion was a punishable offence. Any person who causes voluntary abortion to a woman could face three years of imprisonment and/or fine, and a woman availing the abortion could face seven years in prison and/or fine. 

In 1964, the Indian government had set up a committee led by Shantilal Shah to come up with suggestions to draft abortion laws in India. The committee provided a comprehensive review detailing all the socio-cultural, legal, and medical aspects of abortion. It was suggested that a significant proportion of Indian women were having an unsafe abortion, and it was one of the largest causes of death among women. 

After taking due consideration of the suggestions of the Shah committee, The Medical Termination of Pregnancy (MTP) Act, 1971 was introduced that legalized abortion in Indian and clearly specifies:-

• That a pregnancy can be terminated up to 20 weeks of gestation period when the continuation of pregnancy could cause grievous injury to the life of a pregnant woman when there is a substantial risk to the child when pregnancy is caused due to rape or failure of contraceptives used by a married woman or her husband. 

• Who can terminate a pregnancy

• Till what time can a pregnancy be terminated

• Where can a pregnancy be terminated

• Training and certification requirements for an abortion service provider.

The Medical Termination of Pregnancy Act, 2021

Like many other family laws, this act too needed certain major amendments as there were many areas where people thought those amendments were necessary. The purpose of the amendment is to take a step further towards providing access to safe and legal avenues of abortion laws. It was also intended to be more sensitive towards special categories of women. The amendments in the Medical Termination of Pregnancy  Act, 2021 are:-

• Increase in Abortion legal age - Under the MTP Act 2021, now all pregnant women can terminate their pregnancy up to 20 weeks on the advice of one Registered Practitioner and in case of special categories of women like survivors of sexual abuse, rape victims, minors, differently able women, termination can go up to 24 weeks on the advice of two Registered Practitioners. In addition to this, if there is a case of foetal abnormalities, termination of pregnancy can be done any time during the gestation period.

• Withdrawal of Marriage Clause - Earlier, to seek permission for abortion, a woman has to be married in the case of failure of contraceptives. Now, revoking that clause, even unmarried women can seek safe abortion services on the grounds of contraceptive failure.

• Constitution of a Medical Board - All Indian States and Union territories have to constitute a medical board with gynaecologists, paediatricians, radiologists, sonologists, and other members on the board as notified by the Government.

• Confidentiality - The best amendment in this act is that medical practitioners will only be allowed to reveal the identity of the women who have undergone an abortion to a person authorized by the law and no one else.

Who can perform an abortion? 

As per the MTP Act, the procedure to perform termination of pregnancy can be done by:

• A Registered Medical Practitioner (RMP) who is registered under the Indian Medical Council Act;

• A RMP whose name is entered in the State Medical Register;

• A RMP who has experience or training in gynaecology and obstetrics under MTP rules.

Read more: RAJYA SABHA PASSES A BILL THAT ALLOWS ABORTION UP TO 24 WEEKS.

Whose consent is required for termination of pregnancy? 

The Act provides that only the consent of the woman who is undergoing the termination is required. However, in the case of a minor (below 18 years) or a mentally ill woman, consent of the legal guardian is required in a written format.

More Insights

• The introduction of abortion laws in India is indeed a progressive step by our country but refraining from using the word Abortion still shows how stigmatized we are with the whole concept. 

• Including terms like a woman and her partner rather than a married woman and her husband in case of failure of contraceptives reflects the liberal and reformative approach of the government towards the abortion laws in India. However, mandatory permission from a medical practitioner before terminating the pregnancy still seems unfair in terms of basic women rights. 

• More petitions are being filed in the Supreme Court to decriminalize abortion under the preview of the Indian Penal Code 1860, which still exists as a crime under section 312 of the IPC.   

• In one of the landmark cases, SC held that women s reproductive autonomy is her fundamental right. The decision of whether to keep the child or not should lie in her hands rather than that of medical practitioners.

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Author: Papiha Ghoshal