ABORTION LAWS IN INDIA: history and development

India's 'Conditional' Right to Abortion, Health News, ET HealthWorld

abstract

abortion, a subject that has become very popular throughout the world in recent times, is the termination of pregnancy before the completion of the gestation period. With its diversity and the astounding socio-economic differences that exist in its population, India has often struggled with law implementation. The woman in this country is at a disadvantage as access to abortion facilities proves to be complicated. The author critically analyses various abortion laws dating from pre-independence to modern-day India and people’s changing attitudes. In the end, the paper suggests remedies that the government can do to improve the lack of abortion facilities.

Introduction

Women in impoverished nations face severe public health problems due to unsafe abortion complications. Abortion is permitted in India for a variety of medical and social reasons. Officially, women can obtain safe abortion services from skilled medical experts at registered institutions, and minors must obtain parental approval. In practice, women are denied safe abortion services due to a lack of access to authorised abortion providers, the threat of forced contraceptive acceptance, the financial costs of legal abortion, the stigma associated with induced abortion, and a lack of awareness about the procedure’s legality. As a result, women frequently turn to inexperienced clandestine practitioners practising in hazardous conditions. The implications of such abortions range from life-threatening to chronic reproductive system morbidities such as infections, permanent incapacity, and infertility. Every year in India, an estimated 453 women die due to maternal causes for every 100,000 live births (UNFPA 1997). This statistic obscures the wide disparity across states. While national and state figures are imperfect, they can depict certain tendencies. In 1992, Orissa and Madhya Pradesh had 738 and 711 maternal fatalities per 100,000 births.

Laws in the pre-independence era

The Indian Penal Code 1862 and the Code of Criminal Procedure 1898, which sprang from the British Offences Against the Person Act 1861, made abortion a felony punishable for both the woman and the abortionist unless done to preserve the woman’s life. Abortion laws were liberalised across Europe and the Americas in the 1960s and 1970s, and this trend continued in many other areas of the world into the 1980s.  Abortion legislation liberalisation in India began in 1964 in response to increased maternal mortality due to unsafe abortion. Doctors regularly encountered seriously sick or dying women who had resorted to unsafe abortions performed by inexperienced practitioners. 

Post independence era

medical termination of pregnancy act(MTP) 1971

the Government of India established a committee in 1964 led by Shanti Lal Shah. The primary purpose of constituting that group was to examine the challenges associated with the liberalisation of abortion legislation and offer ways to enhance the present law. After the committee delivered its findings, the Government of India introduced the Medical Termination of Pregnancy Bill in Parliament in 1970. The Medical Termination Pregnancy Act, 1971 is based on the British Legislation of Abortion, 1968, although the basic notion of liberalising abortion law originated from the family planning board. The legislation has three basic goals

  • When the mother’s life is in danger or the women’s bodily or mental health is jeopardised.
  • When the pregnancy is the result of rape or intercourse with a mad lady. (Humanitarian ground)
  • When there is a chance that the child may be born with sickness or deformity.

The Medical Termination of Pregnancy Act of 1971 is divided into eight sections. This was a ground-breaking step because it would liberate women from exploiting women and society. They can also have a role outside the house. This act will assist them in making decisions for themselves rather than those of their family and society. It is entirely up to her whether or not she wants to bear the kid. Aside from the prohibition of illegal abortions, another major goal of the legislation is to give women the right to privacy.  The government is also attempting to reduce the population with this act, as people can now abort the pregnancy if they so want. The eight sections of this act contain various vital points and rules such as when pregnancy can be terminated by medical practitioners, where it can be terminated, and no legal proceedings will lie against any registered medical practitioner who acted in good faith or did not intend to do the act in any wrong sense.

shortcomings of the MTP act of 1971

For a variety of reasons, the Medical Termination of Pregnancy Act has been challenged. Its significant medical learning was a major source of criticism. Mid-level health providers and practitioners of alternative systems of medicine are excluded from the “physicians only” regulation for abortion providers. The necessity for a second medical opinion for a second-trimester abortion further restricts access, as rural regions are under-equipped and few physicians. Furthermore, the twenty-week restriction for abortions has been called into question, since legal and practical obstacles have created delays in many circumstances. In extreme instances, the Supreme Court has permitted termination of a pregnancy after 20 weeks. Another major issue is that no express provision or literature in the code allows unmarried girls/widows to have abortions.  Even though the MTP legislation does not restrict unmarried women or widows from having abortions, the abortion carriers’ social, ethical, and moral views provide a slew of problems for abortion seekers. Except in the event of a lunatic or a girl under the age of 18, abortion providers are not permitted to seek the approval of parents or guardians. However, abortion providers harass a young unmarried woman who attempts to have an abortion with their express agreement

The medical termination of pregnancy (amendment) bill 2021

On March 16, 2021, the Rajya Sabha adopted the Medical Termination of Pregnancy (Amendment) Bill, 2021, which amends the Medical Termination of Pregnancy Act, 1971. The bill’s main focus is the change to the clause allowing abortion up to the 24th week of pregnancy. The Bill governs the condition of pregnancy, emphasizing extending the time limit for abortion. Before the legislation, abortion after 12 weeks of pregnancy needed the approval of two doctors. The new law enables abortion up to 20 weeks if just one qualified medical practitioner agrees. The recent amendment also gives state governments the authority to decide whether a pregnancy can be terminated after 24 weeks due to fetal abnormalities. To assess fetal abnormalities, the state must establish a medical board comprised of a pediatrician, radiologist/sinologist, gynecologist, and others. Furthermore, under the most recent modification, the identity and other details of a woman whose pregnancy has been terminated should not be divulged except to a person authorized by legislation for the time being in effect. Another significant issue is the failure of the contraceptive provision to give access to safe abortion based on a woman’s decision, regardless of marital status. Section 3 of the Act has been changed due to the alteration. Instead of ‘married lady and her husband,’ the new amendment substitutes the phrase ‘woman and her partner.’

flaws in the amendment bill 2021

One of the most severe criticisms has been the inability to address sex-selective abortions. Many women in India have sex-selective abortions as a result of family or spouse pressure. A woman is compelled to contain but cannot communicate her grief or disinterest in continuing with the pregnancy. Another difficulty in drafting abortion legislation is that they overlap with the POSCO statute. As previously stated, the MTP statute has a confidentiality clause that protects an individual’s identity, but POSCO does the exact reverse. There is a required duty under POSCO to report sexual assaults against children, including females who can provide consent. 

Conclusion

Abortion legislation in India has gone a long way. The progression from criminalising abortion to lawfully allowing abortion for unmarried women is admirable. The Medical Termination of Pregnancy (Amendment) Act 2021 was an essential modification in the contemporary era. However, one might infer that the government’s legislative process has been abhorrent. The MTP (amendment) law was enacted seven years after the health, and family welfare ministry recommended it. The MTP statute was approved seven years after the Shanti Law Shah committee was formed. This demonstrates a delay in the implementation of legislation. The government must take the initiative and identify the issues. The medical termination of pregnancy (amendment) bill 2021 is forward-thinking and protects women’s rights. It is worth noting that no legislation or policy is immune to criticism. The establishment of medical boards was essential since seeking higher courts for approval to terminate in each case would result in delay and expense. The issue of accessibility for the rural population is now legitimate and significant. Rather than criticising and defending the legislation, the best path forward is to strive toward improved execution.

The government must take note of the POSCO and MTP dispute, and it is reasonable to foresee a formal change in POSCO in the future years. India has a population of around 130 million people. It isn’t easy to introduce legislation, mainly dealing with people’s ethical, moral, and ideological views. With the resurgence of contemporary culture and the enduring roots of historical traditions, a delicate balance must be struck between the two. A famous example is the Medical Termination of Pregnancy (Amendment) Act 2021. The law is planned, sensible, and scalable. It has made a powerful statement to stand the test in a neo-traditional country like India.