Introduction
The “prochoice” and “pro-life” viewpoints are at the heart of the abortion discussion. The former is mostly supported as a liberal viewpoint that defends women’s autonomy over their reproductive lives. The “pro-life” movement emphasises a far more conservative way of thinking by contending that the foetus has a right to life and that abortion is unethical and immoral.
The situation in India is perplexing, in fact. Instead of protecting the autonomy they have over their bodies, the Indian women appear to have obtained the right to abortion through a policy that was primarily designed to serve as a means of population control. A century ago, in accordance with English law, the provisions for abortion included in Sections 312 to 318 of the Indian Penal Code were adopted. Anyone, even the expecting mother herself, who intentionally causes a woman to miscarry will be punished in accordance with the Code. Only miscarriages carried out with the intention of preserving the pregnant woman’s life were immune from punishment.
The Medical Termination of Pregnancy Act was passed in 1971 against this backdrop. Its three main goals are listed below. It has been proposed as a way to:
- improve the physical and mental health of women;
- provide humanitarian aid when a sex crime results in pregnancy; and
- use eugenics to stop the birth of diseased or deformed children.
The Medical Termination of Pregnancy Act, 1971 is a piece of legislation that was passed with the intention of regulating pregnancy terminations by licensed medical professionals. Section 3 of the Act identifies the situations in which a qualified medical professional may end a pregnancy. The Act permits the termination of a pregnancy if, continuing with the pregnancy would put the pregnant woman’s life, physical health, or mental health in danger, or if there is a probability that the child would be born with physical or mental defects severe enough to leave it handicapped. On the advice of a doctor, any such pregnancy may also be terminated if it has not gone past the 12-week mark. If it has been longer than twelve weeks but less than twenty weeks, it should be completed by at least two such professionals. According to the explanations included with the clause, it is considered that a woman’s mental health will be harmed if she claims that rape caused her pregnancy. A similar assumption of suffering that would be detrimental to mental health also applies in cases where a married woman becomes pregnant due to the failure of the contraception she or her husband took.
The fact that a woman who wants to end her pregnancy does not need the approval of her husband or other family members is one of this legislation’s most admirable features. Only when the pregnancy of a woman who is under the age of 18 or who is insane is sought to be terminated does the consent of the legal guardian become required.
It is expressly stated in Section 4 of the Act that any abortions performed under its provisions must take place only in hospitals run or endorsed by the government. The Act also permits a doctor to end a pregnancy if, in his or her best judgement, it is essential to preserve the woman’s life, disregarding any of the restrictions set forth in Sections 3 and 4. Additionally, he is shielded from being held liable in court for any harm caused by any act performed in good faith.
The Medical Termination of Pregnancy Rules, 2003
Under the Rules, provision has been made to constitute a District Level Committee in which one member shall be a gynaecologist, surgeon or anaesthetist and other members from the local medical profession, NGO and Panchayati Raj institutions of a District. The non-government members’ terms cannot exceed two terms, with each committee operating for two calendar years. The credentials, experience, and training that registered medical practitioners must possess are listed in Section 4 of the Rules. Only when the government is convinced that a location is secure and sanitary may it be used for medically terminating pregnancies.
Additionally, during the first trimester of pregnancy, resources such as “labour tables, resuscitation and sterilisation equipment, medications and parental fluid, backup facilities for treatment of shock, and facilities for transportation” should be accessible. The Government of India periodically notifies the need for “an operating table and instruments for performing abdominal or gynaecological surgery; anaesthetic equipment, resuscitation equipment, and sterilisation equipment medications and parental fluids for emergency use” during the second trimester.
The Medical Termination of Pregnancy (Amendment) Act, 2021
In accordance with the Act, a married woman may terminate a pregnancy up to 20 weeks if a contraceptive technique or device fails. For this reason, it permits unmarried women to end a pregnancy as well. Opinion of a single Registered Medical Practitioner (RMP) about abortion of pregnancies with a gestational age of up to 20 weeks. Opinions of two RMPs about the termination of pregnancies between 20 and 24 weeks. If there are significant foetal abnormalities, the State-level medical board’s approval is required before a pregnancy can be terminated after 24 weeks. The Amendment Act increases the maximum gestation period for some groups of women—including rape survivors, incest victims, and other vulnerable women—from 20 to 24 weeks (differently abled women, minors, among others). Except to a person permitted by a law, “the identity and other particulars of a woman whose pregnancy has been terminated shall not be revealed.”
Lacunae In The Legislation
1. Right To Make Reproductive Choices
Merely reading through the Act’s clauses will reveal that a woman-centric perspective was not taken into consideration while it was being enacted. It is now a legal fact that the MTP Act is an insufficient piece of legislation created with the intention of serving the family planning programme. The Act, in particular, does not acknowledge a woman’s autonomy over her reproductive decisions. According to Article 21 of the Indian Constitution, a woman’s right to decide how she wants to have children also falls under the definition of personal liberty. “It’s vital to understand that reproductive choices have the option to have children or not have children.” In Sarmishtha Chakrabortty v. Union of India, the Hon’ble Supreme Court observed that “The right of a woman to have reproductive choice is an integral part of her personal liberty, as envisaged under Art. 21 of the Constitution. She has a sacrosanct right to have her bodily integrity.”
According to the Act, a rape victim or a married woman whose pregnancy stems from the failure of contraception is permitted to get an abortion within the legally stipulated time frames. Additionally, it is permitted if extending the pregnancy would endanger the mother’s life or if the child, if delivered, would have a disability. However, if contraceptives fail, an unmarried woman could not end the pregnancy. This has however been changed for the better with the Amendment in 2021.
Additionally, a woman cannot simply choose to abort her child because she does not want to be a mother at that specific time. Only if one of the grounds listed in the Act applies can it be done legally. This clearly violates Article 21 of the Indian Constitution since it is arbitrary. When a statutory provision is arbitrary, irrational, or lacking a sufficient guiding principle, as well as when it is excessive or disproportionate, it needs to be invalidated on the grounds of evident arbitrariness.
2. Compelling Interest Of State
The concept of “Compelling State Interest” is at the heart of this argument. It was unequivocally stated in the landmark Roe v. Wade decision by the American Supreme Court that “the right to privacy is broad enough to cover a woman’s decision whether or not to terminate her pregnancy.” The fact that “the right of personal privacy is not unconditional and must be balanced against substantial governmental interests in regulation” was also stressed. The protection of the potential of human life is in the state’s “important and legitimate interest.”
In the Suchita Srivastava case, it was found that protecting the life of the unborn child is likewise a “compelling state interest” in the case of pregnant women. The right of women to make reproductive decisions is subject to provisions of the Act that have been judged to be reasonable limitations. According to established precedent, personal freedom is a fundamental value that must not be sacrificed for political expediency “unless and until there is a compelling State objective”
A remarkable observation made by Justice D.Y. Chandrachud in K.S. Puttaswamy v. Union of India, merits mention here: “The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions.” In addition to protecting human dignity, it is the responsibility of the state to advance it by making decisions that will benefit. The right to live with dignity guaranteed by Article 21 is the foundation of a woman’s freedom to refuse becoming a mother. The claim that “every human being has dignity by virtue of his existence” is also noteworthy. Because of this, the author believes that a woman’s right to live in dignity cannot be taken away on the grounds that the State has a compelling interest in preserving the right to life and dignity of a foetus, the existence of which is debatable.
3. Time Limit of 20 Weeks
The Act specifies a 20-week maximum time frame for abortions. There have been many justifiable objections about this. Foetal defects are frequently only discovered during the anomaly scan, which is done between the 18th and 22nd weeks of pregnancy. Therefore, it is arbitrary to set 20 weeks as the maximum. Abortions after 20 weeks are not permitted under the MTP Act. However, on a case-by-case basis, the Supreme Court and the High Courts have been approving or disapproving requests to terminate pregnancies that have progressed above twenty weeks. This finally resulted in the creation of a complex process that must be followed in these situations. Currently, a woman who want to terminate her pregnancy after 20 weeks must file a petition, which is then forwarded to a medical board made up of a group of medical professionals outside of the woman’s personal doctor. When deciding whether to approve or disapprove the request to end any such pregnancy, courts rely on the medical panel’s recommendations. This requirement has made it necessary for women and girls, who are already dealing with traumatic circumstances, to seek legal advice, risk public scrutiny, submit to numerous physical examinations by panels of unfamiliar doctors, and ultimately experience significant delays and even denials at the end of the process. When the foetus has grown for longer than 20 weeks, approval for abortions is given on a case-by-case basis. The opinion of the doctors is always taken into account by the courts when deciding whether to grant or deny pregnancy termination. Occasionally, a court may issue a ruling that is at odds with the advice of the relevant medical boards. This is because those who work in medicine and health are the foremost authorities in this area. Therefore, it is imperative that the Courts adhere to a consistent procedure when making decisions in situations involving foetuses older than 20 weeks.
4. Contradiction With The POCSO Act
According to the MTP Act of 1971, a minor may end a pregnancy with the permission of her legal guardian. According to the POCSO Act, 2012, anybody who suspects that an offence under the Act has been committed must immediately contact the Special Juvenile Police Unit or the local police. Failure to report any such matter is punishable by a fine, either type of imprisonment lasting up to six months, or by both. Consequently, this creates a dichotomy. This also has the potential to have serious implications because children may turn to quacks rather than seeking out licenced medical professionals out of fear of having their identities revealed. Hence, there is a problem here that needs to be solved.
Conclusion
The Medical Termination of Pregnancy Act, 1971 has several shortcomings. Some of these have been corrected by the The Medical Termination of Pregnancy (Amendment) Act, 2021. The law has changed with times, for the good, and the author believes that it is the right way to go forward.
References
1. The Medical Termination of Pregnancy Act, 1971 Act No. 34 of 1971.
2. The Medical Termination of Pregnancy (Amendment) Act, 2021 No. 8 of 2021.
3. The Medical Termination of Pregnancy Rules, 2003, Ministry of Health and Family Welfare (Department of Family Welfare) Notification New Delhi, the 13th June, 2003.
4. Suchita Srivastava v. Chandigarh Admn., (2009) SCC 1.
5. K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1 : AIR 2017 SC 4161.
6. Sarmishtha Chakrabortty v. Union of India, (2018) 13 SCC 339.
7. Roe v. Wade,1973 SCC Online US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973), Supreme Court of the United States.
8. Aparna S. The Medical Termination of Pregnancy Act, 1972 – A Critical Analysis, CNLU LJ(9), 2020-21