In India, the act that governs, the safe termination of pregnancies of women is The Medical Termination of Pregnancy Act, 1971 (MTP Act). The Act provides for termination of certain pregnancies by registered medical practitioners only if specified conditions are met. The objective behind introducing such a statute is to reduce the maternal mortality rate which may be caused due to unsafe and illegal abortions.
The government passed the MTP Act in the Parliament after the Shantilal Shah Committee issued its report on the need for requirement of legislation on abortion. The major concern of the report was about illegal abortion incidents.
Before the act came into force, abortion was a punishable offence. The MTP Act, however, specifies certain pre-conditions which are required to be fulfilled before the abortion can be conducted by the registered medical practitioner.
Section 3 of the 1971 Act specifies that the woman may be allowed to terminate the pregnancy if:
Thus, only if the above conditions are satisfied, one can legally terminate the pregnancy. It also states that permission of one medical practitioner is required if the woman is pregnant for under 12 weeks and if the pregnancy is between 12 to 20 weeks, the opinion of two medical practitioners is required.
Under the Act, medical termination of pregnancy can only be done by a registered medical practitioner as they are completely immunised from prosecution under IPC. It also states that such medical termination has to be made either at a hospital established or maintained by the government or at other places in accordance with Section 4 of the Act.
The present Act allows women to undergo abortions only up to twenty weeks. The Act places the above restrictions and excludes unmarried women, divorcees and widowed woman from its ambit. It only allows a married woman and rape victims to undergo abortions.
The question is whether the woman has the right to freely terminate the pregnancy at any time she wishes to do so. The law only takes into consideration cases of medical risks as a just and proper reason for abortion and ignores other reasons because of which a woman may take a decision to terminate her pregnancy.
On 29th October 2014, the Ministry of Health and Family Welfare came up with a draft amendment, the Medical Termination of Pregnancy (Amendment) Bill 2014. The bill proposes to extend the upper limit to twenty-four weeks as the maximum limit for carrying out a legally permissible abortion.
Most importantly, the bill, among other amendments, seeks to amend Section 3 of the principal act allowing a woman to terminate pregnancy on her “request” until twelve weeks of pregnancy. The bill also seeks to amend Section 2(d) of the principal act, allowing the abortion to be authorised by a “registered health care provider” including homoeopathy and Ayurveda practitioner and the abortions to be performed by auxiliary nurse midwives (providing additional necessary qualifications). It also seeks to replace the words “married woman” with that of “any woman” under Section 3 of the Act, thus covering cases where pregnancy occurs as a result of the failure of any device or method used by any woman or her partner for the purpose of limiting the number of children. However, the bill has, not yet been passed.
The principal act of 1971 underwent certain minor amendments in 2002. However, even after so many years of advancement in medical science, the law still prevails that abortion can only be provided up to 20 weeks. Many women have approached Courts to seek approval for abortions over twenty weeks. Such women are forced to move courts, to seek permission to terminate their pregnancies, when the pregnancy exceeds twenty weeks and the woman feels that its continuation would pose a risk to the mental or physical health of the foetus or to herself.
In the United States, a landmark judgment in 1973 that changed the abortion laws was in Jane Roe vs Henry Wade wherein the court held that a woman’s right to seek an abortion during the early stages of pregnancy is a part of the right to personal privacy. In this case, Joe an unmarried woman had challenged the Texas laws which criminalised abortion unless a woman’s life was at stake. The court struck down the Texas law setting a legal precedent across the country.
Recently, the Delhi High Court in 2019, issued a notice on a petition challenging Section 3(2)(b) of the MTP act as being violative of Right to Privacy under Article 21 of the Constitution. Section 3(2)(b) sets twenty weeks as the maximum limit for a legally permissible abortion. On similar grounds, a PIL has been filed in the Supreme Court of India, in the matter of Swati Agarwal and Others versus Union of India (WP(C) 825/2019), challenging Section 3 and 5 of the MTP Act. Notice has been issued by the top court and the matter is pending adjudication.
The Supreme Court in its landmark judgment in Justice K. S. Puttaswamy v Union of India has declared the right to privacy as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution. The bench held that Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy. The bench, in the Right to Privacy case also reiterated the view adopted in Suchita Srivastava v Chandigarh Administration holding that a woman’s right to make reproductive choices is a dimension of personal liberty under Article 21 of the Constitution. The court observed that the existence of such a right comes from a woman’s right to privacy, dignity and bodily integrity. The three-Judge Bench in Suchita Srivastava had held that reproductive rights of a woman include, the entitlement to carry a pregnancy to its full term, to give birth, and to subsequently raise children.
In my view, there is a need to liberalize the laws relating to abortion in India making abortion rights available to every woman. The Parliament should amend the provisions of the MTP Act, amending the pending bill so that the mandatory cut off of 20 weeks is done away with. This would save the plight of many women who are forced to go to the court to seek permission for abortion in case of pregnancies over 20 weeks.