Still a long way for termination as an unconditional right
GS Paper- 1,2; Salient Features of Indian Society, Role of Women, Issues Related to Women, Govt Policies and Interventions.
Context:
- Under the country’s general criminal legislation, the Indian Penal Code, voluntarily causing a pregnant woman to miscarry is a crime punishable by up to three years in prison, a fine, or both, unless done in good faith to save the pregnant woman’s life. Apart from the person who causes the miscarriage, which is usually a medical practitioner, a pregnant woman who causes herself to miscarry is also an offender under this clause.
Abortion in India:
- Since the implementation of the Medical Termination of Pregnancy (MTP) Act in 1971, it has been permissible under various situations. In 2003, the Act was revised to allow women access to safe and legal abortion services.
Prior until 1999 (Indian Penal Code, 1860):
- Prior to 1971, abortion was illegal under Section 312 of the Indian Penal Code, 1860, which defined it as willfully “causing miscarriage.” Except in cases where abortion was performed to save a woman’s life, it was a punishable offence that criminalised women/providers, with anyone who voluntarily caused a woman with a child to miscarry facing three years in prison and/or a fine, and the woman who used the service facing seven years in prison and/or a fine.
- In the 1960s, when abortion was legal in 15 nations, India began deliberations on a legislative framework for induced abortion. The Ministry of Health and Family Welfare (MoHFW) was alarmed by the drastically rising number of abortions.
- To address this, the Indian government formed a committee chaired by Shantilal Shah in 1964 to provide recommendations for an abortion law in India. The committee’s recommendations were adopted in 1970 and brought in Parliament as the Medical Termination of Pregnancy Bill. The Medical Termination of Pregnancy Act was approved in August 1971.
Highlights from the Shah Committee:
- The Government of India established the Shah Committee in 1964.
- The Committee conducted a thorough examination of the sociocultural, legal, and medical elements of abortion.
- In its report in 1966, the Committee advised legalising abortion to prevent the waste of women’s health and lives on both humane and medical grounds.
- According to the estimate, with a population of 500 million, there will be 6.5 million abortions each year–2.6 million natural and 3.9 million induced.
MTP Amendment Act 2021:
- MTP Amendment Act 2021 was passed in 2021, with certain amendments to the MTP Act, including all women being allowed to seek safe abortion services on grounds of contraceptive failure, increasing the gestation limit to 24 weeks for special categories of women, and requiring the opinion of one provider up to 20 weeks of gestation. Abortion is now legal until 24 weeks of pregnancy.
- The MTP Amendment Act 2021 is an evolutionary milestone that addresses some of the issues created by the 15.6 million abortions performed in India each year. The next step is to advocate for a more rights-based approach by giving women greater autonomy and choice, and to operationalize grassroots access with an expanded provider base,” said Dr. Nozer Sheriar, member of the WHO-South East Asia Region’s Technical Advisory Group, and Past Secretary-General and MTP Chair of the Federation of Obstetric and Gynaecological Societies of India.
Important changes:
- Increasing the upper gestational limit for certain groups of women, such as rape survivors, incest victims, and other vulnerable women, from 20 to 24 weeks (differently abled women, minors, among others).
- A single provider’s opinion is required for pregnancy termination up to 20 weeks of gestation. The opinion of two clinicians is required for the termination of a pregnancy between 20 and 24 weeks of gestation.
- In situations of significant prenatal anomalies diagnosed by a Medical Board, the upper gestation restriction does not apply.
- Clause of confidentiality- The identity and other details of a woman whose pregnancy has been terminated cannot be released to anyone except those authorised by law.
- Extended MTP services to unmarried women under the failure of contraception clause to offer access to safe abortion based on a woman’s decision, regardless of marital status.
Significance:
- The new law will assist to achieve the Sustainable Development Goals (SDGs) 3.1, 3.7, and 5.6 by reducing avoidable maternal death.
- SDG 3.1 addresses maternal mortality, whereas SDGs 3.7 and 5.6 address universal access to sexual and reproductive health and rights.
- The reforms would broaden the scope and accessibility of safe abortion services for women, while also ensuring dignity, autonomy, secrecy, and justice for women who need to terminate a pregnancy.
Loophole- Obtaining court authorization:
- Before the lockdown following the novel coronavirus pandemic, courts across the country (over the preceding four years) had seen close to 500 cases of pregnant women seeking permission to terminate their pregnancy (broadly on reasons of either the pregnancy being as a result of sexual assault or there being foetal anomalies incompatible with life.
- In a number of these instances, the courts recognised a pregnant woman’s right to decide on the continuance of her pregnancy as part of her right to health and life, and hence non-negotiable.
- Similarly, a number of courts have considered the cases at hand in the context of the circumstances of the case and opted not to make the law straight. This was also following the historic right to privacy verdict of the Supreme Court of India, which stated that a pregnant person’s option to continue a pregnancy or not is part of that person’s right to privacy and, hence, the right to life.
- The standards outlined in this ruling were likewise not incorporated into the proposed changes. The new legislation is inconsistent with other important laws, such as those governing persons with disabilities, mental health, and transgender people, to mention a few.
- The changes also made no attempt to reconcile the MTP Act with the Protection of Children from Sexual Offences (POCSO) Act or the Drugs and Cosmetics Act. While abortion has been allowed in the country, there is still a long way to go until it is recognised as a right of a person with the ability to become pregnant to decide whether or not to continue a pregnancy unconditionally.
Way Forward:
- In Justice K.S. Puttaswamy (Retd.) vs. the Union Of India And Others (2017), the court recognised women’s constitutional right to make reproductive choices as part of personal liberty under Article 21 of the Indian Constitution, which, despite laying a robust jurisprudence on reproductive rights and a woman’s privacy, does not translate into a fundamental shift in power from the doctor to the woman seeking an abortion.
- The government must guarantee that all clinical practise rules and standardised protocols to enable abortions are followed in all health care facilities across the country.
- In addition, the issue of abortion must be decided in accordance with human rights, scientific principles, and technological improvements.
