- 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
- A married woman 26 weeks pregnant has approached the Supreme Court seeking to terminate her pregnancy citing inability to take care of the child due to postpartum depression and other health issues
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.
Supreme Court verdict:
- Aborting it at this stage would mean either putting a stop to the heartbeat or delivering the baby prematurely which might lead to severe complications both mental and physical for the child.
- Larger Bench headed by the Chief Justice of India; Court cannot overlook the rights of an unborn child.
- A two-judge Bench first allowed the woman to end her pregnancy, then withdrew the verdict and differed on whether the abortion could go forward.
- This was following a medical report from AIIMS that said the fetal heart would have to be stopped as part of the procedure.
- Justice Kohli revised an earlier decision
- Court could not ask to stop the heartbeat of a fetus that has life.
- Justice Nagarathna: petitioner was determined about her decision to not proceed ahead with her pregnancy triggering a pro-life versus pro-choice debate.
- The petitioner: she was asking for her rights under Article 21 (protection of life and personal liberty), which overrides the MTP Act
Observations by the CJI-headed Bench:
- The Bench observed that there are rights of the unborn child too and that a woman’s autonomy is also important.
- The Bench said that the rights of the unborn child should also be balanced.
What does the MTP Act say?
● Opinion of only one registered medical practitioner will be required for the abortion of a fetus up to 20 weeks of gestation and of two for the termination of pregnancy from 20 to 24 weeks of gestation.
● The opinion of a state-level medical board is required for abortions over 24 weeks, in case of suspected fetal abnormalities.
What is the global trend on abortion laws?
- Since the early 1990s: Nearly 60 countries across the world have eased abortion laws to expand the grounds under which abortion is legal.
- Four countries, namely the U.S., El Salvador, Nicaragua, and Poland have removed legal grounds for abortion during this time period.
- S. Supreme Court eliminated the constitutional right to abortion in 2022
Way Forward
- Indian legal scenario is not clear on whether the fetus is a living being or not.
- Even if the Supreme Court takes a pro-choice view in this case, it will not be able to set a precedent for the future.
- The Indian public health system is not geared up to address this and that private health care is very expensive.
- The 2021 Act increased 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 like differently abled and minors
- 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
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)
