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EDITORIAL ANALYSIS: A decisive shift in the discourse on abortion rights  

 

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

  • Supreme Court of India, which in the first instance, granted single woman permission to terminate the pregnancy based on the report of the medical board concerned.

 

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.

 

 

    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 fetal 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.

 

Judgment:

  • Access for termination of pregnancy services for women up to 24 weeks irrespective of their marital status.

 

Why is the judgment Progressive?

  • Acknowledges the context of criminality: Indian Penal Code criminalises accessing and providing an abortion except where there is an immediate necessity to save the life of the pregnant woman.
    • The MTP Act is an exception to this criminal offence
  • Classification based on marital status is fallacious and illegal: what is accessible and available for a married pregnant woman should be accessible and available to any pregnant woman.
  • Pregnancy on marital grounds: The judgment reiterates that you cannot make a distinction between a woman who is pregnant because of rape only on the grounds of her marital status.
  • The identity of the pregnant person need not be disclosed: In the cases of consensual sexual activity and where the minor and/or her guardian request the medical service provider to maintain confidentiality.
  • Recognises the extra-legal requirements: These are insisted by Medical practitioners before providing MTP services, only to safeguard themselves due to the context of criminality.

 

 

Way Forward

  • The judgment has created progressive jurisprudence: which interprets an otherwise medical law from the point of view of the rights of the persons accessing the services, though it has not been acknowledged as a right yet.
  • International commitments: The Court has also woven its reliance on the international commitments and obligations of India in ensuring safe and legal access to sexual and reproductive health and rights that include abortions.
  • The law acknowledges the right of every person: Capable of becoming pregnant to be able to decide what she thinks is best for her without the need for any third party authorisation.

 

QUESTION FOR PRACTICE

  1. Women’s movement in India has not addressed the issues of women of lower social strata.’ Substantiate your view.(UPSC 2018)

(200 WORDS, 10 MARKS)