Why in News?
Recently, The Supreme Court three-judge bench headed by CJI, declined permission to a married woman to terminate her over 26-week pregnancy because of post-partum depression and other medical issues, saying the AIIMS medical board had found “no substantial foetal abnormalities” and a pre-term delivery carried the risk of being born with physical and mental deformities.
What is pro-life vs pro-choice debate?
The debate on right of a woman to terminate pregnancy is divided between two main groups: pro-life and pro-choice.
Pro-choice (Reproductive autonomy of the woman) and pro-life (Life of the Child) are terms of self-identification used by the two sides of the abortion debate: those who support access to abortion, and those who seek to restrict it, respectively.
What are the regulations regarding abortion in India?
Medical Termination of Pregnancy Act of 1971:
Abortion in India has been legal under various circumstances with the introduction of the Medical Termination of Pregnancy (MTP) Act, 1971. It allows authorized medical professionals to conduct abortions in certain predetermined circumstances as outlined in the law.
To further empower women by providing comprehensive abortion care, an amendment to the MTP Act 1971 was made in 2021; Medical Termination of Pregnancy (Amendment) Act of 2021.
The cost of the abortion service is covered fully by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance.
Differences between the Two Acts:
| Medical Termination of Pregnancy Act of 1971 | Medical Termination of Pregnancy (Amendment) Act of 2021 |
| One registered medical practitioner will be required for the abortion of a foetus up to 12 weeks of gestation | One registered medical practitioner will be required for the abortion of a foetus up to 20 weeks of gestation. (Gestation is the foetal development period from the time of conception until birth) |
| Two registered medical practitioners will be required for the abortion from 12-20 weeks of gestation.
This act applies to married women only. |
Two registered medical practitioners will be required for the abortion from 20-24 weeks of gestation for special categories of women i.e.; survivors of rape, victims of incest and other vulnerable women. (Married clause dropped) |
| Post 20 weeks terminating pregnancy was not permitted. | The opinion of state level medical board is required for abortions over 24 weeks, in case of suspected foetal abnormalities. |
Section 5 and Section 3(2)(b) of MTP Act:
Section 5 of the Medical Termination of Pregnancy Act, 1971, which allows abortion after the permissible 20 weeks in case it “is immediately necessary to save the life of the pregnant woman”.
Section 3(2)(b) of MTP Act allowing woman to undergo abortion after 20-24 weeks including only married and excluding unmarried woman will be violative of Article 14 (of the Constitution).
Significance of MTP Act:
- To Prevent Maternal Mortality:
According to UN report “Trends in Maternal Mortality”, India recorded the second highest number of maternal deaths in 2020, coming second at 24,000 to only Nigeria. (In 2020, India’s MMR stood at 103, a vast improvement from 384 at the turn of the century).
India has committed itself to the latest UN target for the Sustainable Development Goals (SDGs) for MMR at 70 per 1,00,000 live births by 2030.
To meet the Sustainable Development Goals (SDGs):
Confidentiality:
The amendment increases the ambit and access of women to safe abortion services and will ensure dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy.
Issues related to MTP Act:
The case beyond 24-weeks:
In case of Medical Board diagnoses substantial foetal abnormalities, this Act allows abortion only after 24 weeks.
In the case of a rape victim, if the pregnancy exceeds 24 weeks, the only recourse remains through a writ petition.
Difference of opinion:
There are differing opinions with regard to allowing abortions. One opinion is that terminating a pregnancy is the choice of the pregnant woman, and a part of her reproductive rights. The other is that the state has an obligation to protect life, and hence should provide for the protection of the foetus.
Lack of Specialised doctors:
There is so much shortage of OB-GYN (obstetrician-gynaecologist (OB-GYN) doctors to perform safe abortions.
- Conflict Between MTP Act and POCSO Act:
- The MTP Act allows for abortion on grounds of rape while ensuring confidentiality and this provision under POCSO sometimes becomes a barrier to services for young women.
- The intersection between the MTP Act and POCSO Act is creating confusion, delays, and sometimes denial of abortion services to young girls.
- If an adolescent girl partakes in consensual sexual intercourse with her partner and ends up pregnant, to terminate her pregnancy she needs the permission of her legal guardians under section 3(4) of the MTP Act. Girls under the age of 18 cannot seek safe, legal abortion without their guardian’s consent, even though they might meet all other requirements under the Act.
- Furthermore, if a medical practitioner does receive an adolescent girl seeking termination of pregnancy, they are under an obligation to report it to the police under the mandatory reporting clause in Section 19.
- The underlying presumption is that all pregnant people under the age of 18 are victims of rape or sexual harassment, which ignores the possibility of an adolescent engaging in consensual sex.
- Recently Madras High Court said a minor girl’s pregnancy can be terminated by a registered medical practitioner (RMP) without insisting on disclosure of the name of the minor.
Recent Cases Related to Termination of Pregnancy:
- Delhi High Court allows woman to terminate her 33-week pregnancy at an advanced stage of over 33 weeks as the foetus suffers from abnormalities.
- Bombay High Court allowed married woman to undergo abortion after 33 weeks against medical board’s advice because of ‘severe abnormalities’, and said refusal on ground of delay denies right to reproductive autonomy.
- The Gujarat High Court allowed the plea to terminate the nearly 27-week pregnancy of a 12-year-old girl, who was allegedly raped by her father.
Way Forward:
There are no one-size-fits-all solutions, instead, each situation demands careful, compassionate, and nuanced consideration that respects the autonomy of women while acknowledging the welfare of the unborn child.
However, access to legal and safe abortion is an integral dimension of sexual and reproductive equality and must be a crucial element of conventional society.
