There is an intense debate about the United States Supreme Court’s ruling that there is no constitutional right to abortion by overthrowing the 50-year-old landmark ruling. Roe vs Wade.
Prominent public figures including rights activists and the US President Joe BidenVice President Kamala Harrisformer US president Barack Obama, Michelobama, Bernie Sanders and world leaders like Justin Trudeau And Emmanuel Macron The decision given by the US Supreme Court has been strongly criticized.
verdict in the case Thomas E. Dobbs vs. Jackson Women’s Health Organization, in which the Court by a 6:3 majority upheld the Mississippi law (the Gestational Age Act), which prohibited abortion of fetuses older than 15 weeks of age, except in medical emergencies. Noting that “the Constitution does not provide for the right to abortion”, a majority led by Justice Samuel Alito left it to the federal states to decide whether to allow or regulate abortion. Three judges from the liberal bloc wrote in a vociferous disagreement with the majority that the removal of abortion rights undermines women’s “status as equal and free citizens” and “represents women in the political, social and economic life of the nation”. Opportunities to participate fully and equitably are reduced.
As widespread outrage against the US Supreme Court ruling grows, let us take a look at Indian law on abortion.
What is the status of Indian law?
Section 312 of the Indian Penal Code willfully causes abortion, if it was not done in good faith with the object of saving the life of the woman.
In 1971, a law was enacted by the Parliament called medical termination of pregnancy act which allowed registered physicians to perform abortions under certain circumstances. The law exempted doctors performing abortions as per its provisions from prosecution under Section 312 IPC.
The law does not give women the absolute right to abortion. Abortion is permitted on medical opinion to a certain extent in certain circumstances.
upper limit for abortion
When the law was initially enacted in 1971, the upper limit for abortion was 20 weeks. Now, after the 2021 amendment, abortion is allowed up to 24 weeks in cases of women under specified conditions. Also, after the 2021 amendment, there is no upper limit for abortion if a medical board has diagnosed “substantial fetal abnormalities”.
After the 2021 amendment, only a doctor’s medical opinion is required to terminate a pregnancy up to twenty weeks. Earlier, a pregnancy up to 12 weeks could only be terminated with the advice of a doctor. After the 2021 amendment, the opinion of two doctors is required only for pregnancies between 20 and 24 weeks. But the opinion of a 4-member medical board is necessary to terminate the pregnancy at any time on the grounds of “substantial fetal abnormalities”.
The Medical Termination of Pregnancy (Amendment) Act 2021 came into force from September 24, 2021.
Circumstances in which abortion is permitted
Abortion is permitted on medical opinion that:
- Continuing the pregnancy would endanger the life of the pregnant woman or cause serious injury to her physical or mental health, or;
- There is a substantial risk that if the child is born, he or she will suffer from such physical or mental abnormalities as to be severely disabled.
A pregnancy caused by rape can be terminated
Where a pregnancy is alleged to have been caused by rape by a pregnant woman, the suffering caused by such pregnancy shall be treated as grievous hurt to the mental health of the pregnant woman.
Unwanted pregnancy caused by failure of a birth control method or contraception to be terminated
The suffering caused by an “unwanted pregnancy” due to the failure of contraceptive methods is believed to cause serious injury to the woman’s mental health and may lead to abortion.
Women eligible for termination of pregnancy up to twenty four weeks
Notified by the Central Government on October 12, 2021 Medical Termination of Pregnancy (Amendment) Rules 2021It specified the categories of women eligible for abortion up to 24 weeks of gestation. they are :
(a) survivor of sexual assault or rape or incest;
(c) change in marital status during the ongoing pregnancy (widow and divorce);
(d) physically handicapped women [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)],
(e) mentally ill women with mental retardation;
(f) a malformation of the fetus which has a substantial risk of being incompatible with life or, if the child is born, is likely to be severely disabled by such physical or mental abnormalities; And
(g) women with pregnancy in humanitarian settings or in disaster or emergency situations as may be declared by the Government.
An unmarried woman can have an abortion
The Act does not specify that women who have an abortion must be married. It does not lay down any condition regarding the consent of the husband and wife in the affairs of a married woman.
Guardian’s consent is required in case of minor only.
Change in marital status during pregnancy grounds for abortion
After the 2021 amendment, a woman who becomes widowed or divorced during an ongoing pregnancy can seek abortion up to 24 weeks.
protection of women’s privacy
The 2021 amendment inserted a specific clause in the Act (Section 5A), which said that the doctor should not disclose the name and details of a woman whose pregnancy was terminated. Confidentiality by a doctor is punishable with imprisonment for a term which may extend to one year, or with fine, or with both.
Even when the maximum limit for abortion was 20 weeks before the 2021 amendments, high courts across the country have passed several orders allowing termination of pregnancy beyond 20 weeks in exceptional cases involving rape or fetal abnormalities. have passed.
“The right to make reproductive choices is also an aspect of her personal liberty as understood under Article 21 of our Constitution”, A division bench of the Kerala High Court observed in an order passed in 2020, allowing termination of the 24-week pregnancy of a 14-year-old rape victim.
While introducing the amendment bill, the government had also referred to repeated judicial directions passed by courts allowing abortions over the ceiling, which persuaded the government to bring in a bill to amend the Act.
“Several writ petitions have been filed before the Supreme Court and various High Courts, seeking permission to allow pregnancies at gestational age on the ground of fetal abnormalities or pregnancies due to sexual violence faced by women.” The then Health Minister Dr. Harsh Vardhan said in the statement of objectives and reasons for the amendment bill.
Even after the implementation of the amendment of 2021 from September 24, 2021, the court’s intervention has been going on.
In February this year, the Calcutta High Court had allowed termination of a 35-week-old fetus on grounds of serious abnormalities. In December 2021 the Karnataka High Court passed an order allowing termination of a rape-survivor’s pregnancy above the limit of 24 weeks set by the 2021 amendment, saying it was an exceptional situation. In February 2022, the Uttarakhand High Court allowed abortion of a 28-week-old fetus in the rape-survivor’s case.
In March this year, in a case where a 10-year-old girl was raped by her father, the Kerala High Court directed the medical board to investigate the possibility of abortion at 30 weeks of pregnancy.
Woman’s consent required for abortion
The MTP Act clearly states that a pregnancy cannot be aborted without the consent of the woman (Section 3(4)).
in a landmark decision Suchita Srivastava v. Chandigarh Administration (2009), The Supreme Court upheld the right of a mentally challenged person to continue with the pregnancy. In that case, the Supreme Court found fault with a direction issued by the Punjab and Haryana High Court to terminate the pregnancy of a mentally challenged woman who was allegedly raped, while the woman sought to continue the pregnancy. wish was expressed.
“The pregnancy of the victim cannot be terminated without her consent and proceeding with her would not serve her ‘best interests’. In our view, the language of the MTP Act clearly states the individual autonomy of mentally retarded persons. respects those who are above the age of the majority”, Supreme Court in that case.
Maternity benefits available to a woman undergoing an abortion
It would be interesting to note that the Maternity Benefit Act covers not only childbirth but also abortion. The Act prohibits an employer from employing a woman for a period of 6 weeks immediately after an abortion and states that she will be entitled to payment during the period of leave.
Abortion is defined under the Maternity Benefit Act as the removal of the contents of the uterus at any time before or during the 26th week of pregnancy. But abortion which is punishable under the Indian Penal Code is not included in this definition. This means that abortions performed in accordance with the law up to the limit of 26 weeks are covered under the Maternity Benefit Act.