India's Abortion Laws Are Still Not A Right, But A Privilege

KEY TAKEAWAYS

• On March 25, 2021, The Medical Termination of Pregnancy (Amendment) Act obtained Presidential Assent which modifies the 1971 enactment by increasing the number of weeks a woman can terminate her pregnancy and establishing certain circumstances in which pregnancy can be terminated at any time.
• The amended law in India makes abortion safer and easier to obtain.
• In two separate cases, the Delhi High Court has made progressive judgments that prioritize the mother's mental health while allowing medical termination of pregnancies of 28 and 30 weeks.

INTRODUCTION

The birth of a child gives joy and happiness to a family, but the situation is different when the child is born as a result of an unplanned pregnancy. If the pregnancy is unwanted or unplanned, the child's bearer or the couple, as the case may be, frequently chooses to terminate the pregnancy. Abortion is the medical word for this type of pregnancy termination. At times, even if the pregnancy is planned or desired, there are circumstances when couples wish to abort the child. Such cases usually arise when the child's growth in the mother's womb is found to be abnormal, or when the pregnancy or childbirth can have major health consequences, which could be dangerous.

The debate over whether abortion is ethically, morally, or religiously acceptable, as well as whether it is necessary or significant, has lasted for decades. Different countries have different abortion laws, and the degree of restriction varies from one country to another. In India, a significant piece of legislation amended its 1971 Medical Termination of Pregnancy (MTP) Act, allowing women to seek abortions as part of their reproductive rights and gender justice. The change also elevates India to the top of the list of countries that support women who want to make their own decisions based on their own experiences and circumstances. The MTP act stipulates that a woman may terminate her pregnancy in specific situations. This article explains the rules of abortion in India by comparing them to the laws and scope of rights recognized and accepted in the United States, based on judicial pronouncements.

POSITION IN LAW RELATING TO PREGNANCY TERMINATION

The provision related to abortion in India is present in the Indian Penal Code, 1860, and the Medical Termination of Pregnancy Act, 1971. Speaking of the IPC first, it takes a harsh stance against improper abortions and abortions performed without the consent of the pregnant woman. It moreover uses the term "miscarriage" instead of "abortion." The Code has no provision for legally aborting unintended pregnancies or pregnancies resulting from a serious crime such as rape. Abortion is dealt with under sections 312, 313, and 316. The following is a summary of each of the IPC's provisions:

Section 312 punishes anyone who knowingly causes a miscarriage in a pregnant woman by punishing them with up to three years in prison, a fine, or both. If the individual who causes a voluntary miscarriage is the mother herself, she shall face the same penalties as those listed in this section. However, if the miscarriage is carried out in good faith to rescue the carrying female, it is not unlawful under this section.

Section 313 deals with prosecuting people who perform abortions on women without their consent. Regardless of whether such a female is quick with a kid or not, anyone found guilty under this clause faces a life sentence or a sentence that can be extended to ten years in prison. A fine, as determined by the court, will also be imposed on such a person.

As per Section 316, If a person knows that an act can cause the death of a bearing female and that he or she would be charged with culpable homicide if that act is carried out, and the quick unborn child dies as a result of that act, that person shall be punished under this Section, regardless of whether the bearing mother dies or not. The individual cannot be held accountable under this provision if the person would not have been guilty of culpable homicide but caused the death of a quick unborn child.

The Medical Termination of Pregnancy Act, 1971 (MTP Act) ignores the portions of the IPC that deal with abortion. Unlike the IPC, this statute recognizes a woman's right to terminate her child. This act recognizes the physical and mental anguish that a woman may experience if she is forced to give birth to a child as a result of an unplanned pregnancy. Thus, it is a small act comprising only eight sections which were primarily discovered because many women seeking abortions' health and lives were being jeopardized as a result of the law's stringent provisions.

The relevant provision under the MTP Act in sections 3(2)(b)(i), 3(2)(b)(ii) and 3(2B) and Section 5 which says when pregnancies could be terminated by registered medical practitioners. To put it in simpler terms, the MTP Act aimed to allow for the termination of a pregnancy only if:

a) the pregnancy could affect the woman's mental and physical health; or

b) the fetus could be born with major physical or mental defects.

Therefore, a woman does not have the legal right to terminate a pregnancy; she could only do so if not less than two registered medical practitioners are, of the opinion that is formed in good faith referring to the above two conditions or where the pregnancy length exceeds twenty weeks but does not exceed twenty-four weeks in the case of such category of woman as may be prescribed by rules made under the act.

The important thing to remember is that as time passed, the nation became more considerate of such constraints. The MTP Act takes into account the psychological effects of carrying an unwanted child. Furthermore, the Amendment focuses on women's privacy and proposes to extend the gestation period to 24 weeks, taking into account technological advancements in abortion. This indicates that the rules are progressive and take into account all current advances to give better abortion facilities.

LANDMARK JUDGEMENTS ON ABORTION IN INDIA

The Hon’ble Supreme Court and other state High courts have taken significant steps toward recognizing the denial of reproductive rights as a violation of women's and girls' fundamental and human rights. This section highlights key decisions that have established that women's and girls' legal rights to reproductive healthcare and autonomy give rise to a range of government obligations, such as providing affordable, timely, and high-quality maternal health care; ensuring non-coercive, high-quality, and target-free access to the full range of contraceptive methods; preventing child marriage; and ensuring freedom from forced pregnancy through contraception. As a result, courts across the country have been deciding whether or not to allow abortions after 20 weeks of pregnancy solely on a case-by-case determination based on distinct circumstances. Things have changed in the debate over reproductive rights, personal liberty, and autonomy since the 1970s, and in recent times since 2015, there have been at least 25 such occurrences. A few landmark cases have been discussed below for a better understanding of the law and interpretation made by the courts.

To begin with, the Supreme Court had, in the case of Suchita Srivastava and Another v Chandigarh Administration (2009), that a woman's ability to make reproductive choices is a dimension of human liberty under Article 21, and that reproductive choice can be used to both reproduce and refrain from procreation. The Supreme Court concluded in this important case that the option to continue the pregnancy, as well as qualified consent to terminate the fetus, was linked to a woman's right to life and personal liberty guaranteed under Article 21 of the Constitution.

Besides, in the historic Puttaswamy case (2017) on the right to privacy, a nine-judge Constitutional bench of the Supreme Court concluded that the freedom to obtain an abortion is a component of the right to privacy granted under Article 21 which would include the right to self-determination in terms of one's health and body, as well as sexual and reproductive liberty.

At this point, it's worth mentioning the judgment in Priyanka Shukla v. Union of India (2019), which concluded that "Section 3(2)(b) authorizes termination of pregnancy, among other things, when there is a considerable danger of serious physical or mental defects if the child is allowed to be born." When seen in isolation, it necessitates a 20-week gestation interval for this to be allowed. At the same time, Sec 5 eases the strictures of Sec 3(2) in cases where the pregnancy must be terminated quickly to preserve the pregnant woman's life. Therefore, the court stated that these provisions must be interpreted as part of a single cumulative dispensation rather than separately and held that where the fetus' condition is incompatible with life, as it is in this case, the rigor of Sec 3 (2) needs to be reduced, and the right to terminate the pregnancy cannot be refused simply because the pregnancy has progressed past 20 weeks.

Another case that could be cited in a similar context is XYZ v. Union of India, (2019), which was heard by the Bombay High Court, where a Division Bench of the Court held that the Act's provisions must be interpreted with care. The court held that the term "grave harm to mental health" is used in a broad sense by the legislature for section 3(2) of the Act. Therefore, the pregnant woman's actual or reasonably anticipated environment may be taken into account when evaluating whether continuing the pregnancy will put her mental health at risk. Because in reality, a pregnant woman's actual or reasonably foreseeable surroundings have a stronger connection to her mental health than her physical health. It went on to say that this legislative leniency in terms of broadening the definition of grave impairment to mental health will vanish as soon as the 20-week limit outlined in section 3(2)(b) of the Act is exceeded. If the definition of life in section 5(1) of the Act is not limited to mere physical existence or survival, then permission must be granted under section 5(1) of the Act for medical termination of a pregnancy that has progressed beyond 20 weeks if the continuation of the pregnancy would result in grave mental health harm.

Likewise, in a recent case titled Pratibha Gaur v. Government of NCT of Delhi & Ors. (2021), a woman was granted the right to terminate her pregnancy after 28 weeks, after observing that if she was forced to continue the pregnancy despite knowing that the child would be born with certain congenital defects, her mental well-being would be severely harmed. The Court held that a plain reading of Section 3(2)(b)(i) of the MTP Act, as amended, clearly shows that grave injury to a pregnant woman's mental health is a legal ground for seeking medical termination of pregnancy, with the caveat that the maximum period permissible under the Act for termination is 24 weeks.

And, lastly in the cases of Sangeeta Thapa vs. Government of NCT Of Delhi & Ors (2022), and XYZ vs. GNCTD (2022),of the coordinate Bench, after considering the mental and emotional hardship as well as the babies' defects, the Delhi High Court allowed the woman in both the cases whose gestational period had exceeded 28 weeks to terminate their pregnancy.

COMPARISON OF INDIA AND THE USA'S ABOLITION LAWS

The case of Roe V. Wade(1973)was the landmark judgment that relaxed the abortion laws in the USA to some extent. The main issue, in this case, was whether the Constitution recognizes a woman's right to terminate her pregnancy by abortion. The court held that a woman's right to privacy includes her decision whether or not to terminate her pregnancy, but that this right is not absolute, and that it may be limited by the state's legitimate interests in protecting the woman's health, maintaining proper medical standards, and protecting potential human life.

It was further stated that, before the end of the first trimester of pregnancy, the state may not interfere with or regulate an attending physician's decision, reached in consultation with his patient, that the patient's pregnancy should be terminated; from and after the end of the first trimester, and until the point in time when the fetus becomes viable, the state may regulate the abortion procedure only to the extent that such regulation relates to the preservation of the fetus; from and after the end of the first trimester. Further, the state may outlaw all abortions save those necessary to save the mother's life or health, and it may also prohibit all abortions except those done by physicians who are currently licensed by the state.

However, the Texas legislature recently passed The Texas Heartbeat Act, which came into effect on September 1, 2021. This is a law that prohibits abortion after the finding of a heartbeat in an unborn child, which usually occurs after around six weeks of pregnancy. To put it another way, this is a type of abortion limitation law in the United States that prohibits abortions after an embryonic or fetal heartbeat is found. The act's most notable elements are that it prohibits practically all abortions, with no exceptions made for cases of rape or incest.

With the implementation of the Heart Beat Bill, the pro-abortion precedent established by the landmark US Supreme Court decision in Roe v Wade would be overturned. The Texas Bill, which has been given legitimacy either directly or indirectly, is one of the most restrictive anti-abortion legislations in the country. The bill will also open the path for other states to enact similar prohibitions by approving lawmaking that is not just devoid of Roe's principles, but outright hostile to them.

The recent onslaught of legislation in the United States, which is frequently regarded as one of the most crucial frontiers for many feminist causes, has demoralized women around the world. Hence, in comparison, we see that abortion has been subject of debate for the longest time with the conflicts still continuing. But, even amidst the conflicts, a country like India is seeing increasingly progressive abortion laws. Having looked at the judicial decisions, the abortion regulations are being lightened with each modification or judgment announced to actively consider the female's position and right to abortion.

CONCLUSION

In an overall analysis, it is seen that India's abortion regulations have come a long way. The progress from criminalizing abortion to legalizing abortion for unmarried women is commendable as, in the modern period, the implementation of the Medical Termination of Pregnancy (Amendment) Act 2021 was a required move. Furthermore, the comparison demonstrates that Indian abortion laws are far more progressive than those in the United States. Though the United States was the first to declare abortion to be a part of a woman's 'zone of privacy' with the Roe vs Wade decision; India recognized a woman's right to abortion as part of her right to personal liberty under Article 21 of the Constitution, years later yet, India was quick to consider the position of females to give birth and raise a child out of an unwanted pregnancy while also considering the life of the prenatal child. At present, as stated, the abortion regulations in the United States are strict and restrictive because the government prioritizes the rights of the unborn child while ignoring the mental health dangers.

To conclude, the preceding instances demonstrate the important and changing role that India's judiciary has played in addressing the legal and practical impediments that prevent women and girls from exercising their reproductive rights.The amended MTP Act, although introduced nearly 40 years later than the original law,no doubt has recognised reproductive choice as a fundamental right of a female but partially continues to ignore a woman's right to make decisions about her own body, reproductive health, and future. To say further the Supreme Court has recognized women's reproductive decisional autonomy in the landmark cases as stated, but this can be fully realized only if the provisions of the IPC making abortions a criminal offense are repealed, and a woman's decision to terminate her pregnancy is left up to her and the doctor.