The right to abortion is one of the most important topics among the socio-legal problems of India. Abortion is multifaceted because it touches on many areas such as ethics, emotions, morals, law, etc. It is one of the most sensitive and controversial topics because it involves taking a life. It is a dilemma that whether or not a mother has the right to make decisions for her own body and terminate the pregnancy when she wants or the unborn child has a right to life under article 21 of the Indian Constitution.
Abortion as a Right
The right to privacy judgement dealt with several spheres that came under the ambit of privacy. It also included the woman’s right to make decisions about her health and body, the bench ruled that “there is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as guaranteed under Article 21. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating.” The judgment also talks about a woman’s freedom of choice whether to bear a child or abort her pregnancy and considers it as an area falling under the realm of privacy.
It means that the right to abortion falls under the ambit of right to privacy which in turn comes under the ambit of right to life which is a fundamental right. The bench’s opinion was based on the case of Roe v. Wade.
Medical Termination of Pregnancy Act, 1971
The Union Cabinet amended the MTP Act, 1971 around late January of 2020. The amendment has raised the upper limit of MTP from 20 to 24 weeks for women including rape survivors, victims of incest, differently-abled women, and minors. Failure of contraception is also acknowledged and MTP is now available to “any woman or her partner” replacing the old provision for “only married woman or her husband.”
The amended Bill proposes the requirement of the opinion of one registered medical practitioner (instead of two or more) for termination of pregnancy up to 20 weeks of gestation. It introduces the requirement of the opinion of two registered medical practitioners for termination of pregnancy of 20-24 weeks of gestation.
The Bill has increased the gestation limit for ‘special categories’ of women. This special category includes survivors of rape, victims of incest, and other vulnerable women like differently-abled women and minors.
One of the highlighting features of the amendment is the provision that says that “name and other particulars of a woman whose pregnancy has been terminated shall not be revealed”, except to a person authorized in any law that is currently in force.
Need and Benefits of the Amendment
The earlier Act of 1971 was not suitable for the conditions prevailing in modern times. The act also violated the right to equality as it differentiated the rights of a married woman from an unmarried woman. Due to the rigidity of the 1971 Act, several women were turning to unsafe and illegal methods of abortion which put their lives at stake.
Another criticism of the MTP Act of 1971 was that it failed to keep pace with advances in medical technology that allow for the removal of a fetus at a relatively advanced state of pregnancy.
The new amendment ensure the right to abortion of both married and unmarried women. This move was much needed as the right to sexuality and reproductive health exists for both married and unmarried women. So, it was violative of provisions of equality when law treated them unequally.
The new amendment is also beneficial because of its confidentiality clause about the details of a woman whose pregnancy has been terminated. It becomes really important, especially in a country where abortion is still a debatable topic and taboo, to keep the identities of these women confidential.
There are still debates over when an unborn child can be considered a ‘person’ and its right to life starts prevailing. So, the right of women to decide for her own body and terminate her pregnancy is still in the backseat for critics. The critics of abortion believe that an unborn child is a living person but there is no universal rule which tells when an unborn child can feel pain or is regarded as a living person.
In our country, the preference of the male child is another socio-legal issue. So the liberation in abortion laws can lead to aggravation of female foeticide.
While the government intended dynamic laws for the progressive society, there is still a social stigma attached to abortion in India. The woman still cannot openly go to a hospital and have an abortion, without many eyes being rolling at her, especially in rural areas. Also, Indian women face family pressure which may influence her decision to a large extent and deprive her of her right to choose freely.
The social stigma attached to an unmarried woman having abortion still leads to these women turning to unsafe and illegal methods of abortion which even cost them their lives at times. Medical practitioners sometimes start blackmailing those women who come to abort without the knowledge of their family. There have been cases where an unmarried woman committed suicide just because she was forced to carry a child and did not have the right to abort under the old MTP Act.
The intention to adopt liberal ways with respect to laws regarding abortion is evident in these amendments. But, there is still a long way to be covered because, even after laws being made, there are cases where women are denied their rights and are pressurized to give birth to a baby whether she wants it or not. The women are still not able to freely choose their will to abort without being influenced by their families. The check on medical practitioners about them being capable of carrying a safe abortion is very necessary because there are many cases where women die because of the negligence of the doctor.
It’s high time to abolish the social stigma attached to abortion and people should start understanding the impact that a woman can have because of unwanted pregnancy. There is a need to balance the liberal abortion laws and stringent female foeticide laws.
 Roe v. Wade , 410 US 113 (1973)