Critical Analysis of Abortion Law Reforms in India

INTRODUCTION

Abortion laws started their journey in India with the enactment of the Indian Penal Code, 1860 [hereinafter IPC]. Section 312 of IPC criminalised induced abortion and described it as intentionally causing miscarriage. However, termination of pregnancy was allowed in cases where the life of the woman was in danger. 1960 was the era of liberalisation of abortion laws.  Many countries in the European and American continent began the liberalisation of abortion laws. India was also not untouched in this movement. On recommendation of the Central Family Planning Board, the Shantilal Shah Committee was formed by the Ministry of Health to study the need for legislation on abortion. Shah Committee recommended the decriminalisation of abortion as many women were resorting to methods of unsafe abortion. Thus, on the recommendation of the Shah Committee, the Medical Termination of Pregnancy Bill was passed by the parliament in 1971. Although this Act allows the termination of pregnancy on certain grounds, it was necessary to expand legal grounds to allow abortions. This was required to protect women’s health and dignity and to provide more reproductive autonomy to both married and unmarried women. Therefore, the Medical Termination of Pregnancy (Amendment) Bill, 2020 was introduced in the Lok Sabha on March 2, 2020. This article critically reviews the current legal framework of abortion and policy reform in India.

CURRENT LEGAL FRAMEWORK OF TERMINATION OF PREGNANCY IN INDIA

Currently, Medical termination of pregnancy Act, 1971 [hereinafter MTP] and Amended Rules and Regulations deal with induced abortion in India. MTP Act allows any registered medical practitioner to perform the termination of pregnancy if the length of pregnancy does not exceed 12 weeks, provided that it is done in good faith. The grounds to legally terminate pregnancy are specified in Section 3(2) of the MTP Act. These include grave risk to the physical or mental health of the pregnant woman and pregnancy resulting from contraceptive failure, rape or intercourse with a mentally challenged woman. Further, risk of substantial fetal abnormalities is a valid ground to terminate pregnancy. Section 3(2)(a) of the original Act deals with cases where the period of pregnancy does not exceed 12 weeks. This provision restricts a woman from exercising her reproductive choices as it requires the permission of a medical practitioner. This precondition is unnecessary because pregnancy risks do not usually show themselves in the first trimester and abortion in the first 12 weeks of pregnancy entails lesser risk than carrying a pregnancy to its full term. U.S Supreme court in Roe v. Wade also accepted that there is very low risk in abortion in the first 12 weeks of pregnancy; the state has no legitimate interest in controlling the right of reproductive choice in the first trimester. Pregnancy can also be terminated if the period of the pregnancy is more than 12 weeks but less than 20 weeks and such an abortion can be performed with the approval of two doctors.

Section 3(2)(b) restricts the right of women to seek abortion to 20 weeks which is completely irrational because with the advancement in medical science, safe abortion is possible till the 26^th weeks of the pregnancy.  However, the MTP Act allows abortion beyond 20 weeks only when there is a threat to the life of a woman. If serious fetal abnormalities are detected beyond 20 weeks then the pregnant woman has no option but to carry on such pregnancy. Some fetal abnormalities express themselves only after 20 weeks, therefore, it is necessary that abortion should be allowed till at least 24 weeks.  Several cases have come up where serious fetal abnormalities were detected after 20 weeks. In 2008, a petition was filed by Haresh and Niketa Mehta in the Bombay High Court to allow them to terminate the pregnancy because the fetus was diagnosed with the heart defect in the 22^nd week. The honorable High Court rejected the petition and then in the 27^th week, Niketa Mehta suffered a miscarriage. To avoid such cases, termination of pregnancy must be allowed beyond 20 weeks in cases of serious fetal abnormalities.

Explanation 2 to Section 3(2) provides that if pregnancy occurs as a result of failure of any contraceptive device or method used by a married woman or her husband then termination of pregnancy is allowed. The rationale behind this provision is that unwanted pregnancy can cause grave mental injury to the pregnant woman. The object is to enable a woman to avoid unwanted pregnancy. This provision is inconsistent with the object as it does not allow a single woman to terminate the pregnancy. Further, it is also violative of the right to equality under Article 14 as it treats equals unequally amounting to hostile discrimination against single women and is thus arbitrary in nature. Therefore, this provision must be extended to unmarried women.

MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) BILL, 2020

The Medical Termination of Pregnancy (Amendment) Bill 2020 defines the termination of pregnancy as a procedure to terminate a pregnancy by using medical or surgical methods. The term “termination of pregnancy” was not defined under the original MTP Act. This bill, unfortunately does not make any change in the provision dealing with abortion in the first trimester. However, it amends the provision that required the approval of two registered medical practitioners for termination of pregnancy within 20 weeks. Now, pregnancy can be terminated with the opinion of only one medical practitioner till the third trimester.  Moreover, the amendment increases the upper limit for termination of pregnancies from 20 to 24 weeks. However, the termination of pregnancies up to 24 weeks will only apply to specific categories of women which will be prescribed by the Central Government.  Specific categories of women will mainly include survivors of rape, victims of incest, differently-abled women, and minors. The proposed legislation removes the upper limit of termination of pregnancy in cases of substantial fetal abnormalities. These cases will be diagnosed by a medical board which will consist of a gynaecologist, a paediatrician, and a radiologist or a sonologist. Each State Government will form its own medical board. The State Government can nominate any more members, as per the requirement. The powers and functions of the medical board will be notified by the Central Government from time to time. Requiring pregnant people to be examined by a medical board violates their rights to dignity, privacy, and decisional autonomy.  It is important that the Central Government must notify appropriate rules for the medical board to avoid the unnecessary delays and invasion of privacy. Multiple invasive examinations of the pregnant person by the Board can be intimidating and humiliating. These boards are a form of third-party authorisation that is highly burdensome, especially due to the financial drain on persons needing to appear before the board repeatedly, and they also lead to substantial delays in abortion. State Governments must ensure that even women from marginalised sections of society have easy access to medical boards and it is not a very cumbersome process. Constituting medical boards at the state level creates access challenges for those in rural areas, especially among marginalised persons. Even when boards are at the district level, the availability of several specialist doctors is suspected given the weak health infrastructure in many parts of the country.

Furthermore, the bill proposes equal treatment of both married and unmarried women. It allows an unmarried woman to terminate her pregnancy if such pregnancy occurs as a result of a failure of a contraceptive device or method. This will ensure that single women have access to safe and legal abortion and they don’t have to rely on illegal and riskier channels of abortion. This would make the Act more inclusive as it will include pregnancies from live-in relationships and casual sexual relationships which generally face opposition from society. This bill ensures the privacy of the pregnant women seeking termination of pregnancy. Due to the severe social stigma prevalent in society, many women want to keep it completely secret. Therefore, confidentiality is a very important factor while seeking an abortion. This bill states that the name and other credentials of a woman whose pregnancy has been terminated shall not be revealed to anyone except to a person authorised by law. Whoever contravenes this provision shall be punished with imprisonment up to one year or fine or both. However, a person authorised by law is a vague term and it should be clearly defined by the government. This could be troublesome for many women, especially vulnerable women. Over the years, we have seen an increase in barriers to abortion due to conflation of the MTP Act with Protection Of Children from Sexual Offences Act, 2012 [hereinafter POSCO]. POCSO requires mandatory reporting on behalf of medical providers for minors seeking sexual health related services including safe abortion services, with the intent to prevent abuse. The MTP Act allows for abortion on grounds of rape while ensuring confidentiality and this provision under POCSO sometimes becomes a barrier to services for young women. The intersection between the MTP Act and POCSO Act is creating confusion, delays, and sometimes denial of abortion services to young girls.

The MTP Bill has, no doubt, brought about some positive developments in the field of abortion law. However, it still ignores women’s agency completely.  It does not recognise abortion as a right to reproductive choice but as an exception from the crime of causing miscarriage, for which pregnant women can be held liable under Sec 312 of IPC. This bill clearly ignores several judgments delivered by Indian courts as well as courts of foreign jurisdictions. In Roe v. Wade, the U.S Supreme Court granted constitutional status to reproductive choices. In both Puttaswamy and Navtej Johar’s judgment, the Supreme Court ruled that the right to reproductive choice is a fundamental right under the right to life. Therefore, this bill is not consistent with Article 21 of the Indian Constitution.

CONCLUSION

Medical Termination of Pregnancy (Amendment) Bill, 2020 substantially improves the original Act but abortion continues to be a conditional right in India. The opinion of the medical practitioner still prevails over the will of the pregnant woman. India needs to incorporate choice as a factor of abortion. A woman should be allowed to exercise her reproductive choices and the role of medical practitioner(s) should be limited to ensure safe abortion.  This bill will certainly increase the service provider base to improve access but it does not shift the power of decision making from the medical practitioners to the pregnant woman. While the bill is surely a step in the right direction more reforms are needed so that women can exercise their reproductive choices freely and become more independent in terms of their bodily integrity.

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ABOUT THE AUTHOR(S)

Ayush Shukla is a second year law student at Hidayatullah National Law University, Raipur.

Ishika Jindal is a second year law student at Hidayatullah National Law University, Raipur. 

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Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.