The story so far: In a major step backward for women’s rights in the US, the Supreme Court overturned the landmark 1973 Roe v. Wade judgment, which gave women in America the right to have an abortion before the fetus is outside the womb viable or before 24-28 weeks. Amid the destruction of the historic Roe v. Wade judgment in the US, here’s a look at the conditions under which Indian women can access an abortion. Amid the destruction of the historic Roe v. Wade judgment in the US, here’s a look at the conditions under which Indian women can access an abortion. Putting aside the historical verdict on abortion in the US, here’s a look at the laws governing abortion in India.
How did the abortion laws in India come about?
In the 1960s, in the wake of many forced abortions, the Union government ordered the creation of the Shantilal Shah Committee to deliberate on the legalization of abortion in the country. To reduce maternal deaths from unsafe abortions, the Medical Termination of Pregnancy (MTP) Act was enacted in 1971. This law is an exception to the provisions of the Indian Penal Code (IPC) of 312 and 313 and lays down the rules on how and when a medical abortion can be performed.
Under Section 312 of the IPC, a person who “willingly miscarry a woman with a child” is punishable by imprisonment for up to three years or a fine or both, unless done in good faith for saving the pregnant woman’s life. Article 313 of the IPC states that a person who causes a miscarriage without the pregnant woman’s consent, whether or not she is at an advanced stage in her pregnancy, shall be punished with life imprisonment or imprisonment for up to 10 years and a fine . This section makes unconditional abortion illegal in India.
How did the MTP law evolve from 1971 to 2021?
The last amendment to the MTP law took place in 2021. Before that, new rules were introduced in 2003 to allow the use of the newly discovered abortion drug misoprostol to terminate a pregnancy for up to seven weeks medically. Wider amendments to the original law were introduced in 2020, and the amended law came into effect in September 2021.
Under the 2021 Termination of Pregnancy Amendment Act, abortion after medical advice is permitted under certain conditions. The 2021 law increased the upper limit of the gestation period within which a woman can request a medical abortion to 24 weeks from the 20 weeks allowed in the 1971 law. But this revamped upper limit can only be exercised in specific cases. Gestational age, calculated in weeks, is the medical term to describe how far the pregnancy lasts and is measured from the first day of the woman’s last menstrual period.
Also read: Explained | How will the rollback of Roe v. Wade affect women?
Another important change was that MTP was not accessible on the advice of a single registered physician until 20 weeks of gestation. In the previous version of the law, the opinion of one registered doctor was needed to access a medical abortion up to 12 weeks gestation. In contrast, two doctors had to approve the abortion for up to 20 weeks. From 20 weeks to 24 weeks, the advice of two registered doctors is required.
What is the 2021 MTP Amendment Act?
Under the 2021 law, medical termination of pregnancy is permitted if supported by medical advice and requested for at least one of the following reasons:
If continuation of the pregnancy would endanger the life of the pregnant woman, If continuation would result in serious damage to the physical or mental health of the woman (if the pregnancy is the result of rape or non-use of contraceptives by the pregnant woman or her partner to limit the number of children or to prevent pregnancy, the fear caused by its persistence would be considered serious damage to the mental health of the pregnant woman) In the case of a significant risk that if the child were born, it would suffer from a serious physical or psychological defect
The pregnancy can be terminated up to 24 weeks gestational age under these conditions after advice from two registered doctors:
Suppose the woman is a survivor of sexual assault or rape, or incest. If she is a minor, If her marital status has changed during the ongoing pregnancy (i.e., widowhood or divorce), If she has a serious physical disability or is mentally ill For reasons of fetal malformation that are incompatible with life, or if the child is born, it would be severely disabled If the woman is in a humanitarian environment or disaster, or emergency as declared by the government.
In addition, if the pregnancy must be terminated after 24 weeks of gestation, this can only be done based on fetal abnormalities if a four-member medical board, as established by law in each state, grants permission. So. Notwithstanding any of the above conditions, the law also provides that where it is immediately necessary to save the life of the pregnant woman, abortion may be performed at any time by one registered physician. Under the 2021 law, unmarried women can also have access to abortion under the above conditions, as the requirement of the husband’s consent is not mentioned. However, a guardian’s consent is required if the woman is a minor.
Also read A small step: Changes in the law on medical termination of pregnancy.
Section 5A of the Act contains provisions to protect the privacy of a woman undergoing an abortion. The registered physician may not disclose “the name and other details of a woman whose pregnancy has been terminated” except to a legally authorized person. If the doctor reveals such information in violation of the woman’s privacy, they could face up to a year in prison, a fine, or both.
Have there been judicial interventions in abortions?
Even though existing laws do not allow unconditional abortion in the country, in the landmark 2017 Right to Privacy judgment in Justice KS Puttaswamy v. Union of India and others, the Supreme Court ruled that a pregnant person’s decision on all whether or not to continue a pregnancy is part of such a person’s right to privacy and thus of the right to life and personal liberty under Article 21 of the Constitution.
Several women approach the apex court and High Courts every year when medical councils reject their application for access to MTP after the gestational age (now 24 weeks) to ask for permission to terminate a pregnancy, usually in cases where it is the consequence Of sexual assault or when there is a fetal abnormality.
A report by advocate Anubha Rastogi for the Pratiya campaign said that in the 15 months leading up to August 2020, high courts nationwide heard 243 petitions from women seeking consent for abortion. In February this year, the Calcutta Supreme Court allowed a 37-year-old woman, who was 34 weeks pregnant, to have a medical abortion after the fetus was diagnosed with an incurable spinal condition. The court permitted this after the state’s medical board rejected the woman’s application to receive MTP. This verdict allowed abortion for the furthest gestational age in the country to date.
What are the criticisms of the abortion law?
As of 2015, 15.6 million abortions were performed annually in India, according to a 2018 study in the Lancet. The MTP law requires that abortion be performed only by doctors specializing in gynecology or obstetrics. However, the Ministry of Health and Family Welfare 2019-20 report on rural health statistics indicates a 70% shortage of obstetricians-gynecologists in rural India.
Because the law doesn’t allow abortion at will, critics say it encourages women to access illegal abortions under unsafe conditions. Statistics estimate the annual number of unsafe and illegal abortions in India at 8,000,000, many of which result in maternal deaths.
THE CORE
To reduce maternal deaths from unsafe abortions, the Medical Termination of Pregnancy (MTP) Act was enacted in 1971. This law is an exception to the provisions of the Indian Penal Code (IPC) of 312 and 313 and lays down the rules on how and when a medical abortion can be performed.
Under the 2021 Termination of Pregnancy Amendment Act, abortion after medical advice is permitted under certain conditions. The 2021 law increased the upper limit of the gestation period within which a woman can request a medical abortion to 24 weeks from the 20 weeks allowed in the 1971 law. But this revamped upper limit can only be exercised in specific cases.
Several women approach the apex court and High Courts every year when medical boards deny their application to access MTP beyond the pregnancy limit and ask for permission to terminate a pregnancy, usually in cases where it results from sexual assault or when there is a fetus. Deviation.
In a major step backward for women’s rights in the US, the Supreme Court overturned the landmark Roe v. Wade judgment of 1973, which gave women in America the right to have an abortion before the fetus is viable outside the womb. Or before the 24 28 weeks mark. Under the 2021 Medical Termination of Pregnancy Amendment Act, unmarried women can also have an abortion under the above conditions because there is no consent from the husband. However, a guardian’s license is required if the woman is a minor. The MTP law states that abortion may only be performed by doctors specializing in gynecology or obstetrics. However, the Ministry of Health and Family Welfare 2019-20 report on rural health statistics indicates a 70% shortage of obstetricians-gynecologists in rural India.
