Written by Vidhi Maheshwari of School of Law, Sharda University
Edited by Akshita Angrish
“No woman can call herself free until she can choose consciously whether she will or will not be a mother.” – Margaret Sanger
Whether a mother has the Right to Abortion, with the Right to Life of the unborn child? Rights of a mother are to be given equal importance with the right of an unborn baby. In the previous times, abortion was considered as a heinous crime but with the change in time and conditions as well as due to improvement and advancement in the technology, this right has now been legally sanctioned by the Government. The recent amendments deal with defining Termination of Pregnancy and Protection of Privacy of the Women as well as with mental as well as physical health.
Abortion according to a layman refers to the intentional and premature termination of pregnancy prior to the birth of the child. In criminal law, is ordinarily used to describe an intentional termination of pregnancy. According to medical sciences, abortion refers to the termination of pregnancy before the fetus is capable of extra-uterine life generally considered to be prior to the 20 weeks of gestation or the conceptus achieving a mass of less than 500 gm or a crown-rump length of 18 cm.
WOMEN HAS THE RIGHT TO ABORTION
People used to think that Abortion is a criminal offence but now it has been legalized by the Government. A woman has the Right to Abortion if the following situations occur:
- If the pregnancy is continued then it would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated.
- The termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman.
- If the pregnancy is continued then it would involve risk, greater than if the pregnancy were terminated, or injury to the physical or mental health of any existing child of the family of the pregnant woman.
- There is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
In the case of the above situations, the doctor who determines it should be a ‘registered medical practitioner’ under the law.
- The Medical Termination of Pregnancy, 1971: The Act was passed by the Indian Parliament in 1971 for regulating and ensuring safe abortion. This law permits only registered allopathic medical practitioners at certified abortion facilities to perform abortions to save a woman’s life or to preserve her physical or mental health. It also permits abortion in cases of economic or social necessity, rape, incest, fetal impairment or the failure of a contraceptive method used by a married woman or her husband. According to the Act, the consent from the family members or husband isn’t required for abortion; however, in case of a minor or mentally ill woman a guardian’s consent is required.
The act allows an unintended pregnancy to be terminated up to 20 weeks of the gestation period. According to the act, Abortion as permissible when the fetus is less than 20-weeks old under the following circumstances:
- Continuation of pregnancy is risky for the life of a pregnant woman or could potentially cause grave injury to her physical or mental health.
- There is a substantial risk that if the child is born then it could be severely handicapped due to physical/mental abnormalities.
- Pregnancy caused due to rape (affecting both physical and mental health).
- Pregnancy caused due to the failure of contraceptives used by a married woman or her husband
- MTP Act, Amendments, 2002: Additional amendments to the MTP Act and Rules and Regulations were made in 2002 and 2003 as an effort to streamline registration of private doctors as abortion providers and thereby further expand access to safe abortion services. They even worked on decentralization of the registration
- MTP Rules, 2003: The MTP Act mandates that each state provide abortion services at tertiary-level health care centers (medical colleges) and secondary-level health care centers (district hospitals and first referral units) up to 20 weeks’ gestation. Private-sector facilities are permitted to provide first- and second-trimester abortion services after receiving government approval as a registered abortion facility.
- Proposed Amendments to the MTP Act, 2014: The 2014 draft amendment, which includes changes that would potentially improve access to legal abortion, proposes
- expanding abortion provision to nurses, auxiliary nurse midwives and practitioners trained in the Indian System of Medicine with recognized qualifications in Ayurveda, Unani, Siddha or homeopathy
- allowing abortion at a woman’s request up to 12 weeks’ gestation and increasing the gestational age limit for abortion to 24 weeks
- clarifying the use of prenatal diagnostic technology by stating that the gestational age limit does not apply if the termination of pregnancy is necessitated by the diagnosis of a substantial fetal abnormality
- replacing the term “married women” with “all women” and the word “husband” with “partner” in the contraceptive failure clause, in an attempt to clarify that abortion is legal for all women, not only those who are married; and
- Mandating that the name and other particulars of a woman having an abortion remain confidential.
- Pre-Conception and Pre-Natal Diagnostic Techniques Act: This act was mainly proposed due to the discriminatory practice of killing the girl child before birth. The introduction of advance technologies that allowed parents to determine the sex of the fetus prior to birth has impacted the sex ratio of the country and created sex imbalance. It prohibits the misuse of antenatal diagnostic tests for the purpose of sex determination. The Act also prohibits the advertisement of such tests, requires registration of all facilities that use them and prohibits those conducting the tests from revealing the sex of the fetus to the expectant parents.
RELATED CASE LAWS
- Suchita Srivastava V. Chandigarh Administration (2009) 9 SCC 1
In 2009 The Supreme Court of India gave a landmark judgement in this case, where it was held that right to reproductive autonomy is an integral part of Right to Life under Article 21 of Constitution of India. It was stressed that a medical procedure of abortion cannot be carried out on a woman if she has not consented to it. Hence, the right to reproductive autonomy was held as a Fundamental Right.
- Dr. Nisha Malviya and Anr. V. State of M.P 2000 CriLJ 671
In this case, the accused had committed rape on a minor girl and made her pregnant, who was of about 12 years. The allegations on them are that the two other co-accused took her, and terminated her pregnancy. So, the charge on them is of causing miscarriage without consent of the minor or her guardian.
The Court held all the three accused as the guilty of firstly raping her and then of the termination of pregnancy which was not consented either by the girl nor her guardian.
- Shri Bhagwan Katariya And Others V. State of M.P 2001 (4) MPHT 20 CG
This case is about Abortion without the consent of the mother. The woman was married to Navneet. Applicants are younger brothers of Navneet while Bhagwan Katariya was the father of said Navneet. After the complainant conceived pregnancy, the husband and the other family members took an exception to it, took her for abortion and without her consent got the abortion done.
The Court referred to Section 3 of the Medical Termination of Pregnancy Act, 1971 according to which the pregnancy should be terminated in accordance with the provisions of law and it cannot be done without the consent of the woman. Therefore, the Doctor will be liable.
Thus, in the above-mentioned case laws, it shows that a woman has an absolute right to abortion and no one can take away this right from her. Even the Judiciary has been playing a vital role in securing this right of women.
Women who seek to choose to terminate their pregnancies may have various reasons and because of which it leads to unsafe abortion and the women has to face the consequences. The Government has made some regulations which made this act one step nearer to the healthcare of the mother as well as the abolishing of unsafe practices of abortion and the consequences that the mother has to suffer with. Now, there isn’t any need for illegal abortion of the fetus of the one with valid reason. This act also helps in saving the girl child and maintenance of the sex ratio. The Government has also tried to remove the barriers to obtain safe Abortion and Post-abortion Services which is very useful help. The Government lacks in spreading the awareness about the Abortion Laws and about the vulnerabilities amongst the Young and Unmarried people.
Image courtesy: The New York Times