Abortion: A Right Or An Offence?

Abortion maybe defined as the termination of pregnancy by the removal or expulsion from the uterus a fetus or embryo which results in causing its death.

INTRODUCTION

According to criminal law, abortion means the intentional termination of pregnancy. Abortion can be identified into two types -:

1. Spontaneous Abortion – In this type, the abortion is due to complications during pregnancy and which can be done unintentionally. It is known as miscarriage. 
2. Induced Abortion- Induced Abortion may further be classified into two types -:

• • Therapeutic abortion – This type of abortion is done to prevent the health of the mother when her life is in danger or it is known that the child is born will be disabled.
  • Elective abortion – If abortion is done for some other reasons, is known as elective abortion. 

WHO CAN PERFORM AN ABORTION?

The following persons are authorized to perform abortion:

• A registered medical practitioner;
• A surgeon who has six months of experience in obstetrics and gynecology;
• A person who has a diploma in gynecology and obstetrics;
• A doctor who was registered before the MTP Act and has three years of experience in gynecology and obstetrics.

The right to life is a fundamental right guaranteed under the Constitution and has a much wider scope[1]. Along with various rights, the Right to abortion is also a fundamental right of women. Woman and her right to determine their sexuality, fertility, and reproduction should be taken as consideration for making policies related to abortion. The right to abortion is considered as the right to privacy under the right to life. [2]

The Supreme Court has held that Article 21 guarantees the right to life and personal liberty and the same extends to the freedom of women to make her reproductive choices. These rights are the components of the women’s right to privacy, personal liberty, dignity, and bodily integrity as enshrined by Article 21 [3]. In the recent judgment of the Supreme Court by a nine-judge division bench in Justice K.S  Puttaswamy Case[4], which unanimously affirmed the right to privacy as a fundamental right under the Constitution, reiterated Suchita Srivastava case and held that women’s right to abortion comes in the category of right to privacy and all the rights related to reproduction should be ensured by the state.

In India, abortions are legal in some cases such as unmarried girls, rape victims, and married women. With an increase in crime rate, abortion laws made it illegal to detect the sex of the fetus which led to a decrease in the rate of abortion.

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LAWS RELATED TO ABORTION IN INDIA 

INDIAN PENAL CODE,1860 

Under the Indian Penal Code, 1860, Sections 312 to 316 state that any induced abortions are a criminal offense except when the matter is to save the life of the mother. According to section 312, if any person voluntarily causes miscarriage to women with child, will be imprisoned for three years and fine or both and may extend to seven years if woman is quick with child.

According to Section 315 of IPC, miscarriage without the consent of women is punishable. Section 314 of IPC states that if the accused intentionally causes miscarriage to his women with a child which leads to the death of the women then the accused will be imprisoned for 10 years and fine also and if it was done without the consent of women then he shall be imprisoned for life or with punishment mentioned above. And if any person causing the death of a quick unborn child by act amounting to culpable homicide shall be punished with imprisonment of ten years and fine as per Section 316, IPC.

Now, many countries have liberalized their abortion laws. Many countries have restricted laws related to women and there were also those countries where abortion is available at the request of the woman.  Further, India introduced its abortion legislation in 1971 by enforcing the MTP Act,1971. Before the enactment of the MTP Act, abortion was illegal under Section 312 of IPC.

MEDICAL TERMINATION PREGNANCY ACT, 1971

On August 25, 1964, the Central Family Planning Board made a recommendation to the Ministry of Health to make a committee related to abortion. But the recommendation was considered in mid of 1964 and the committee known as Shantilal Shah Committee was constituted. This committee had issued a report on December 30, 1966. Because of this report, the government passed the Medical Termination Pregnancy Act,1971. 

The Act consists of 8 sections only which dealt with time, place, and situation in which pregnancy was terminated by a registered Medical Practitioner. The MTP Act legalizes abortion if the contraceptives fail or where the pregnancy affects the physical state of women. And in such cases, consent of women is a must and if the girl is minor then the consent of her guardian is necessary. This Act allows termination of pregnancy until 20 weeks of gestation. If the pregnancy is above 20 weeks then the aggrieved parties can go to court asking a direction to terminate the pregnancy.

In Murugan Nayakkar v. Union Of India & Ors.[5], the Supreme Court allowed termination of 32 weeks pregnancy of 13 years old rape victim and stated that considering the age of the victim, the trauma she suffered at this age, and after considering the report of the Medical Board the court allowed the termination.

In Dr. Mangla Dogra & Others v. Anil Kumar Malhotra[6], it was held that the MTP Act requires the consent of one person i.e. the women. A husband can’t force his wife to continue the pregnancy. 

In Nikhil Dattar v. Union Of India [7], Sections 3 and 5 of the Act was challenged based on non-inclusion of eventualities vires of the Act. In this case, the fetus was diagnosed with a complete heart block in the 26th week of pregnancy. The petitioner stated that Section 5(1) should include the events in section 3 and then direction should be issued to the respondents to permit the termination of the pregnancy. The court dismissed the petition and stated that twenty-six weeks have already passed and the court cannot pass any direction for exercise of right under section 3. In this case, the ethical issues faced by doctors were highlighted.

MEDICAL TERMINATION OF PREGNANCY BILL,  2020

Medical termination of pregnancy Amendment Bill 2020 was introduced by Dr. Harsh Vardhan (Ministry of Health and Family welfare) on 2nd March 2020. This Bill revised one of the old Acts which suggested following changes -:

• The Bill proposed advice of one registered practitioner instead of two is required in the termination of pregnancy of 20 weeks of gestation. And there is a need for two medical practitioners only when the termination of pregnancy is between 20 to 25 weeks of gestation. 

• In the Bill, it was mentioned that the name and other details of a woman shall not be revealed except by the authorized person whose pregnancy has been terminated.

• A medical board will be constituted which consists of -: 

1. 1. A Gynecologist, 
   2.  A Paediatrician, 
   3.  A Radiologist,
   4. Any other member which the state government recommends and approved in complication and critical situation of abortion. 

CONCLUSION 

Amendment in the MTP Act is indeed more liberal. But the abortion through MTP has not received the outcomes that the MTP Act should gain. Even today most women undergo an unsafe abortion. There is still a negative attitude regarding abortion. The reason behind this negative attitude is the lack of awareness and illiteracy.  Some sectors of society are still not much aware of contraceptives pills and abortion services. It is necessary to increase awareness of contraceptive and abortion services. The Constitution of India has given the absolute right to women to choose whatever she wants to do with her body. Interfering in her reproduction choices is a breach of personal liberty. 

The POCSO Act should also be amended. Medical and infrastructure also need to be improved. And the legislature should remove the unjust limit on the duration of pregnancy for the termination of pregnancy. Because this time limit has not left any options for the mothers to go to court which is such a costly and time-consuming process.  Not every woman opts for the judicial route and does unsafe abortions which affect their lives. Now, it’s high time for the government to improve the elements of India’s abortion law and policy.  

REFERENCES

[1] The Constitution of India, 1949, art. 21.

[2] Roe v. Wade 410 US 113 (1973).

[3] Suchita Srivastava & Another v. Chandigarh Administration, (2009) 11 S.C.C. 409.

[4] Justice K.S Puttaswamy (Retd) & Anrs. V. Union of India and Ors., (2017) 10 S.C.C 1.

[5] Murugan Nayakkar v.Union of India & Ors, W.P. (C) NO. 749 Of 2017.

[6]  Civil Revision No. 6337 of 2011.

[7] SLP (C) 5334 of 2009.

BY – Shambhavi Sinha | Banasthali Vidyapith