The topic of “Abortion” or the “volitional killing of the foetus” has been a matter of dissension for ages and has been hotly debated on various platforms throughout the world. Any academic powwow pertaining to the topic of “Abortion” has always revolved around the concepts of “right of the unborn baby” and the “choice of the mother of the baby”. It can be safely deemed as one of the most contentious “moral issues” which polarizes society into various schools of thoughts.
In India, the concept of “Abortion” is regulated by the “Medical Termination of Pregnancy Act, 1971. It lays down all the essential provisions about it. Recently, Lok Sabha has amended this provision by passing the “Medical Termination of Pregnancy (Amendment) Bill, 2020. This new legislation has been brought in with the vision of emancipating the conditions of women and ensuring the effective exertion of their choice.
This article will discuss the possible impact of this legislation. It will also discuss the repercussions of the law and will analyze the facet of its potential misutilisation. It will also discuss the importance of energisation of the rights of the foetus and the choice of the mother.
Abortion law in India
As mentioned earlier, the legal aspect of abortion laws in India is dealt with by the “Medical Termination of Pregnancy Act, 1971”. The law was brought in after the recommendation made by the “Shantilal Shah committee”. The main purpose of this act was to legalize the “process of abortion” in our country. It was also effective in dealing with the menace of illicit and precarious termination of pregnancies.
This act lays down the instances when a woman will be allowed to terminate her pregnancy. To be precise there are four such conditions when abortion is permitted.
Firstly, in instances where there is a major threat to the life of the pregnant mother or her mental health faces potential ruination.
Secondly, in situations where there is a threat to the health of the baby.
Thirdly, in instances where pregnancy is brought about by rape, and it affects the mental state of the woman.
And finally, in cases where pregnancy is induced by the fizzling out of the contraceptive used.
The opinion of the specialized doctors also holds a special place in this entire process. If the termination is to be done within the first trimester, then the opinion of one doctor is sufficient and if the gestation period lies between 12-20 weeks, then two credible opinions are required. But, termination of pregnancy won’t be allowed in cases where the pregnancy period is beyond 20 weeks except for the cases where the doctors opine that it is really necessary for safeguarding the mother’s life.
Although the act has yielded a tremendous groundwork for efficacious exertions of “Abortions”, it is riddled with some gremlins. The biggest matter of concern about the act is that it necessitates the process of taking opinions from qualified doctors before carrying out the process of abortion. The problematic state of the healthcare system in our country means that the availability of competent doctors is not always possible.
Another concern with respect to the act is that the maximum period fixed for abortions is troublesome. One of the major reasons is that most of the foetal malformations are dredged up after the permissible time window has lapsed. Also, in cases of rape or sexual assaults, pregnancy is rarely discerned before the permissible time frame. Apart from all of this the conservative nature and biases of the act in favour of the married women were also problematic because only they were allowed to undertake abortion on the grounds of failure of contraceptive devices, All these aforementioned lacunae cajoled the lawmakers to conjure up some sort of apposite solution and they came up with the new “Medical Termination of Pregnancy (Amendment) Bill, 2020.
Changes by the Bill
The bill has introduced significant changes in the law of abortion in India. The upper permissible limit has been changed from 20 weeks to 24 weeks now. Although abortion during the period between 20-24 weeks will be allowed for only a special category of women who were impregnated due to rape, incest or any other anomalies, after the consultation with two doctors. The bill also replaces the term “married women and her husband” with “women and her partner” in order to terminate the discrimination against the unmarried pregnant women. Furthermore, there is no upper limit for the termination in cases where the foetus suffers from significant abnormalities.
However, in such cases, the occurrence of the termination of pregnancy is contingent on the decision made by a committee consisting of a “Gynaecologist, radiologist, paediatrician or any other apropos official appointed by the state government. The bill also safeguards the privacy of the pregnant woman by ensuring punishment for the culprits who divulge personal information about the concerned woman without her consent. The bill is, without a doubt an empowering step for all the women of this country because it not only confers them with greater autonomy but also ensures gender justice.
Majority of the provisions of this act give more emphasis to the choice of the pregnant mother. For example, Section 3 of this bill states that a woman can undertake an abortion if there is a contraceptive failure. It opens up a floodgate of cases where women will take unfair advantage of this particular provision since it is nearly impossible to check the veracity of the claim. It somewhat succors the mother in opting for abortions even without any substantive reasons. It completely disregards all the rights of the unborn child.
The amendment also states that a doctor may allow the process of termination of pregnancy if there is a failure of contraceptive used by a woman suffering from mental predicaments. This confers unrivalled prerogative to the doctors since they can now allow abortion at their discretion. This prerogative can easily result in arbitrary decision making which will give rise to illicit exertions.
These kinds of legislation which give a free hand to the Indian populace to act according to their whims and caprices will be indeed troublesome. This provision will be misused for various malevolent purposes like “Sex-selective abortions”. Despite being illegal, pre-natal sex determination is a common phenomenon in our country. It is often followed by the dreaded procedure of “female foeticide”. Hence, a provision like this can be used for illegal purposes and has the potential to disfigure our sex ratio.
The Supreme Court of India in the case of K.S Puttuswamy v UOI, held that the reproductive choice of a woman falls under the ambit of Article 21 of the Indian constitution which incorporates the right to life and personal liberty. It further said that the choice of the woman includes her “privacy, dignity and bodily stoutness”. The court also laid down the particulars related to the choice of a woman which includes the choice of contraceptives, choice of method of birth control, choice of giving birth to the child et al.
Many people contend that the act is not coherent with the right of a woman to make reproductive choices. It gives primacy to the opinion of the doctors and gives them the prerogative to take decisions which are supposed to be taken by women themselves. They also argue that the conditions for abortions are insatiable and unnecessarily make things difficult for those who want to opt for it. However, there is a subsistence of logical fallacy in these arguments because it fails to take into consideration the rights of the unborn baby. It ignores the fact that there needs to be an equilibrium between the rights of the woman and the unborn child. These provisions of the Act help in putting some reasonable restrictions on the entire process of abortion in order to make the functioning more just fair and equitable. These restrictions also satisfy the threefold test put forth by the Supreme Court in KS Puttaswamy v UOI case, which is as follows:
- The legislation in the act must be valid from a legal point of view.
- There must be a germane interest in protecting the rights
- It must be proportional to the aim of the main act.
Most importantly, as mentioned earlier, the choice of the women can’t be given utmost importance because the scope of misuse of that is massive.
Additionally, the state must check the misuse of the act of Abortions. They should make sure that stringent contingents are put up so that people with ulterior motives can’t exercise this option. However, such provision, which allows termination of pregnancy due to a reason like “failure of contraceptives”, plays it to the hands of the perpetrators. This loophole in the act will enable people to bypass all other necessary regulations and disdain the rights of the unborn child.
The aforementioned aspects necessitate the application of a midway approach where both the choice of the mother and the rights of the unborn child will be respected. The role of law enforcement officials becomes crucial because they have to settle on a plan of action about abortions. They should go over with a fine-tooth comb over all the claims of abortion to determine whether there exists a reasonable and respectable cause to terminate the pregnancy.
They should vet the application properly and reach a conclusion which is fair, just and reasonable. While taking a call, they should respect the right of the unborn child as well. They should only allow medical termination of pregnancy in cases where it is really necessary and not in cases of “contraception in disguise”. It might seem like an arduous task but is essential because the right to life of someone which is guaranteed by the constitution of India can’t be detracted over fiddling matters.
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 The Medical Termination of Pregnancy Act, 1971.
 The Medical Termination of Pregnancy (Amendment) Bill, 2020
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 Supra note 3
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 Supra note 14
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