EDITORIAL ANALYSIS:  Indian laws on Abortions

   Source: The Hindu

• Prelims: Functions and responsibilities of union and states, schemes for vulnerable sections( fundamental rights, abortion laws)
• Mains GS Paper I and II: Role of women and women organizations, schemes for vulnerable sections. Fundamental rights.

ARTICLE HIGHLIGHTS

• In a significant step backwards for women’s rights in the U.S.,the Supreme Court overturned the landmark Roe v. Wade judgement of 1973, which gave women in America the right to have an abortion before the foetus is viable outside the womb or before the 24-28 week mark.
• Abortion rights, which have been available to women for over two generations — will now be determined by individual States.

INSIGHTS ON THE ISSUE

Context

Abortion:

It is defined as the termination of pregnancy by various methods, including medical surgery before the fetus is able to sustain independent life.

How did abortion laws come about in India?

• In the 1960s, in the wake of a high number of induced abortions taking place, the Union government ordered the constitution of the Shantilal Shah Committee to deliberate onthe legalisation of abortion in the country.
• The Medical Termination Of Pregnancy (MTP) Act was brought into force in 1971. This law is an exception to the Indian Penal Code (IPC) provisions of 312 and 313 and sets out the rules of how andwhen a medical abortion can be carried out.
• Under Section 312 of the IPC, a person who “voluntarily causes a woman with child to miscarry” is liable for punishment,attracting a jail term of up to three years or fine or both, unless it was done in good faith where the purpose was to save the life of the pregnant woman.
• Section 313 of the IPC states that a person who causes the miscarriage without the consent of the pregnant woman, whether or not she is the in the advanced stages of her pregnancy, shall be punished with life imprisonment or a jail term that could extend to 10 years, as well as a fine.

Evolution of MTP Act from 1971 to 2021:

• The latest amendment to the MTP Act was made in 2021.
• Before that new rules were introduced in 2003 to allow the use of the nnewly discovered abortion medicine misoprostol, to medically terminate a pregnancy up to seven weeks into it.
• Broader amendments to the original Act were introduced in 2020 and the amended Act came into force in 2021.
• Under the Medical Termination of Pregnancy (Amendment) Act, 2021, abortion is permitted after medical opinion under stipulated circumstances.
• The 2021 Act increased the upper limit of the gestation period to which a woman can seek a medical abortion to 24 weeks from 20 weeks permitted in the 1971 Act.
• MTP could not be accessed on the opinion of a single registered medical practitioner up to 20 weeks of the gestational age.
• From 20 weeks up to 24 weeks, the opinion of two registered medical practitioners is required.
• In the previous version of the Act, the opinion of one registered doctor was required to access a medical abortion upto 12 weeks of pregnancy, while two doctors were required to endorse the abortion upto 20 weeks.

MTP (Amendment) Act, 2021:

• Termination due to Failure of Contraceptive Method or Device: Under the Act, a pregnancy may be terminated up to 20 weeks by a married woman in the case of failure of contraceptive method or device.
• Unmarried women: It allows unmarried women to also terminate a pregnancy for this reason.
• Opinion Needed for Termination of Pregnancy:
  • Opinion of one Registered Medical Practitioner (RMP) for termination of pregnancy up to 20 weeks of gestation.
  • Opinion of two RMPs for termination of pregnancy of 20-24 weeks of gestation.
  • Opinion of the State-level medical board is essential for a pregnancy to be terminated after 24 weeks in case of substantial foetal abnormalities.
• Upper Gestation Limit for Special Categories: Increases the upper gestation limit from 20 to 24 weeks for special categories of women, including survivors of rape, victims of incest and other vulnerable women (differently abled women, minors, among others).
• Confidentiality: The “name and other particulars of a woman whose pregnancy has been terminated shall not be revealed”, except to a person authorized in any law that is currently in force.

Significance:

• The new law will contribute towards ending preventable maternal mortality to help meet the Sustainable Development Goals (SDGs) 3.1, 3.7 and 5.6
• SDG 3.1 pertains to reducing maternal mortality ratio whereas SDGs 3.7 and 5.6 pertain to universal access to sexual and reproductive health and rights.
• Amendments will increase 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:

• Different opinions on Termination: One opinion is that terminating a pregnancy is the choice of the pregnant woman and a part of her reproductive rights while the other is that the state has an obligation to protect life, and hence should provide for the protection of the foetus.
• Across the world, countries set varying conditions and time limits for allowing abortions, based on foetal health, and risk to the pregnant woman.
• Not allowed beyond 24-weeks: The Act allows abortion after 24 weeks only in cases where a Medical Board diagnoses substantial foetal abnormalities.
  • This implies that for a case requiring abortion due to rape, that exceeds 24-weeks, the only recourse remains through a Writ Petition.
• Abortion to be performed by doctors:
  The Act require abortion to be performed only by doctors with specialisation in gynaecology or obstetrics.
  • As there is a 75% shortage of such doctors in community health centers in rural areas, pregnant women may continue to find it difficult to access facilities for safe abortions.

Judicial interventionsin cases of abortions:

• Justice K.S.Puttaswamy v. Union of India and others: The Supreme Court had held that the decision by a pregnant person on whether to continue a pregnancy or not is part of such a person’s right to privacy as well and,therefore, the right to life and personal liberty under Article 21 of the Constitution.
• Calcutta High Court: It allowed a 37 year old woman,who was 34 weeks into her pregnancy, to get a medical abortion as the foetus was diagnosed with an incurable spinal condition. This judgment allowed abortionfor the furthest gestation in the country so far.

Way Forward

• It is commendable that the Central Government has taken such a bold stand while balancing the diverse cultures, traditions and schools of thought that our country maintains, however the amendment still leaves women with various conditionalities, which in many cases become an impediment in access to safe abortion.
• In Justice K.S. Puttaswamy (Retd.) vs. the Union Of India And Others (2017), the court recognized the constitutional right of women to make reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution, which, despite laying a robust jurisprudence on reproductive rights and the privacy of a woman, does not translate into a fundamental shift in power from the doctor to the woman seeking an abortion.
• The government needs to ensure that all norms and standardised protocols in clinical practice to facilitate abortions are followed in health care institutions across the country.
• Along with that, the question of abortion needs to be decided on the basis of human rights, the principles of solid science, and in step with advancements in technology.
• Since it has now become an act, one can be assured that the country is on the road to advancement, addressing women issues more fiercely than ever.

QUESTION FOR PRACTICE

Critically analyze Medical Termination of Pregnancy(MTP) (Amendment) Act, 2021

(200 WORDS, 10 MARKS)