This article is authored by Vishrut Gupta, a 1st year law student from Lloyd Law College. This article throws light on the legality of abortion in India as well as the critiques of those laws.
“If a mother can kill her child – what is left for me to kill you and you to kill me – there is nothing between.”― Mother Teresa
Introduction to Abortion
The rapidly increasing rate of abortion across the globe has resulted in the formation of several laws and policies related to abortion. The conscious and intentional termination of pregnancy with the help of medical sciences is known as abortion. So, if a mother is not willing to give birth to the child due to any reason, she can visit a hospital to stop her gestation, but within 28 weeks which is considered to be safe for abortion. The gestation period is the duration for which the woman is pregnant and the foetus is developing inside her womb. Usually, the woman gives birth after an interval of 38 to 42 weeks of pregnancy, which is approximately 9 months.
Human Rights and Abortion Grounds
In the international aspect, human rights allows a woman to choose if she wants to continue her pregnancy or not. Three laws primarily deal with human rights and childbirth, namely, The Right to Life, The Right to Health, The Right to Autonomy and Bodily Integrity. Apart from this, abortion has been categorised into the five main categories:
- Prohibited altogether- The women are not at all allowed to abort the child even if her life is at risk. It is seen in 5% of cases.
- To save women’s life- If the women’s life is at risk due to inability to give birth, abortions are allowed and seen in 22% of cases.
- To save health- In 14% of cases, abortion is allowed to save the deteriorating health of the women.
- Broad Social/Economical grounds- Sometimes, a woman is not financially stable to nurture a child, some social grounds are also there, in this case, abortion is also granted. 23% of cases are of this type.
- On request– Abortion request is filed in the courts and the judge decides whether it should be granted or not by examining the facts and the future of the child. The majority of the cases of India come in this category but the gestational limits vary accordingly as per the laws of different countries.
Facts and Figures
The Lancet Global Health Report said, “A total of 15.6 million abortions was carried out in India in 2015.” A rapid growth in the ‘Maternal Mortality Rate’ was seen. (Maternal Mortality Rate is the rate at which women die during or within 42 weeks of abortion due to mismanagement or accidents while doing the abortion. One of the main reasons for the same is that a lot of fake and unauthorised clinics are running with fake doctors and unethical practices. Teens also get pregnant due to lack of sex education and being underage, they try to abort their foetus illegally at such clinics and end up with fatal situations. It was found in research that- “8% of the deaths of maternal mortality were due to unsafe abortions.”
Indian Legislations for Abortion
India had only one main law to cater for abortion, which was The Medical Termination of Pregnancy Act, 1971. Section 3 of the act allowed women to terminate their pregnancy within 20 weeks of getting pregnant including some of the provisions and exceptions. Later, in 2002, the word ‘lunatic’ mentioned in all the sections of the act, was replaced by ‘mentally ill’. We saw certain cases when the Supreme Court allowed the termination of pregnancy even after the 20th week. A 2017 case where a Kolkata girl was allowed to terminate her pregnancy even after the 20th week of gestation, due to the detection of Pulmonary Atresia in the foetus, shows that there are certain cases where this law was overlooked under certain exceptions for the greater good. The exceptions cover the cases of rape and life threats to women or her child after giving birth. The same thing happened in 2016 when a landmark judgement was given by the court in a rape case.
After several petitions were filed to increase the upper limits of the gestation period in rape cases, the government in 2014 finally made a draft to bring an amendment to this law. The major amendment features were-
- An increment in the upper gestation time from 20 weeks to 24 weeks.
- Decrease in the number of doctors (for advising the safeness and technicalities of abortion between 12th week and 24th week and even beyond that) from two to one.
Finally the Medical Termination of Pregnancy (Amendment) Bill, 2020 was introduced in Lok Sabha on March 2, 2020, and passed on March 17, 2020. The bill added another 4 weeks in the upper limits of the abortion period under some provisions and establishments of state-level medical boards. The bill passed from the Rajya Sabha on March 16, 2021, and finally amended. Certain acts and punishment related to abortion are mentioned in the Indian Penal Code, 1860. Section 312-314 of the IPC deals with the punishment of the miscarriage- cause, permission and death due to miscarriage. Section 315 deals with the intended act to prevent the child from coming out and killing the child after birth. Section 316 covers the death of a child caused by the quick unborn, which amounts to culpable homicide.
Critiques of the MTP Act
As the Medical Termination of Pregnancy (Amendment) Bill, 2020 got passed; several criticisms and flaws in the amendment came to light. The major critique of the amendment bill is that the bill itself violates article 21 of the Constitution, i.e. Right to Life which covers the Right to Health as well. The health of the women gets deteriorated in the time she takes permission from the court for abortion, especially in rape cases where the victim suffers mental trauma as well. Another strong argument was that the child to be aborted also has his Right to Life which again violates Article 21 of the constitution. This is an irony in itself. The next critique said that it should be totally on the will of the mother, whether to keep or abort the child, there shouldn’t be a time limit for abortion if the medical practitioner allows it keeping in mind the safety of the mother. The bill does not talk about the inclusion of transgender, there isn’t a single word mentioned about the same. The Medical Board has to interfere in certain cases but those cases are missing, nowhere mentioned and the time limit of examination by the Medical Board to examine the possibility of abortion is also missing. The bill stands unanswerable to such questions which are the essential pillars and technicalities of the bill and thus cannot be ignored.
We should focus on the increasing maternal mortality rate. The government should set up committees to investigate unethical abortion clinics to avoid any further deaths due to a lack of medical knowledge. The loopholes of the laws are needed to be fixed soon so that it covers every crucial aspect which could save a mother’s life. We should keep in mind that our presence has been possible because of a mother and it has been rightly said- “Justice delayed is the Justice denied.”
- Call for Papers for Volume XI Issue I of NLIU Law Review: Submit by 18th July 2021
- 1st SJCL National Moot Court Competition, 2021: Register by June 28
- Call for Blogs by MNLUM Criminal Law Review Blog: Submissions Open
- Delhi Police moves Supreme Court Against High Court Orders Granting Bail to Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha
- Mathura Court Drops Charges of Breach of Peace Against Journalist Siddique Kappan and 3 Others
- Woman Appeals in Hon’ble Delhi HC for an Australian Visa for Providing Medical Assistance to her Son
- Narayan Prasad Lohia vs Nikunj Kumar Lohia & Ors
- The Shortcoming of Rape Laws in India and a Need For Change
- Accomplice Evidence in Sexual Offenses
- Speedy Trial In Rape Cases: Its Importance and Prevalent Loopholes
- Online National Legal Document Drafting Competition by Legis Scriptor: Register by 27 June 2021.
- Call for Papers by NLUJ’s CALQ (Comparative Constitutional Law and Administrative Law Journal): Submit by 15th Aug 2021
- CLAT-Peeps! (8)
- Conferences and Seminars (81)
- Course and Workshops (48)
- Debates (15)
- Eassy Competitions (28)
- Fellowships & Scholarships (21)
- Guest Blogs (4)
- important (19)
- Internships and Jobs (348)
- interviews (7)
- moot court (49)
- Opportuintes (138)
- opportunity (691)
- other services (1)
- others (1)
- Our Blog (621)
- Administrative Law (11)
- ADR (8)
- Arms Act (1)
- Case Analysis (114)
- Company law (34)
- Constitutional Law (73)
- Consumer Protection Act (5)
- Contract Law (46)
- CPC (9)
- Criminal Law (96)
- Cyber Law (9)
- Environmental Laws (16)
- Evidence Act (20)
- General (96)
- International Humanitarian Law (2)
- International law (13)
- IPR (2)
- Jurisprudence (6)
- labor laws (3)
- Partnership Act (2)
- personal law (31)
- Taxation (7)
- Tort (54)
- Transfer of Property (1)
- Top Stories (156)
- Uncategorized (223)
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- February 2020
- January 2020
- November 2019