POLITY

Abortion

Abortion

Introduction

Abortion is the removal of pregnancy tissue, products of conception or the fetus and placenta (afterbirth) from the uterus. In most cases, abortion is used to terminate unplanned pregnancies. It is also used to end pregnancies where the fetus is abnormal. Therapeutic abortions occur when the pregnancy put the mother’s health at risk.


Types of abortion:

Abortion

Arguments in Favour of Abortion

  • Women have a moral right of control over their own bodies.

  • The Right to abortion is imperative for gender equality.

  • The Right to abortion is also imperative for individual women to achieve their full potential.

  • Banning abortion leads to women resorting to other illegal and unsafe measures to terminate pregnancy, which puts them at risk.


Arguments against Abortion

  • The Right to Life trumps the right of a person to control their own body: the fetus is not a ‘part’ of the woman’s body but a separate ‘person’ altogether, with a right to life.

  • Abortion does not necessarily lead to women’s liberation. What is required instead, is societal moral and financial support to the mother.

  • The easy access to abortion reduces government efforts in better care for mothers, and their children.

  • Negative impact on the long-term physical and mental health of the women who undergo abortion.


International Position on Abortion

  • A 2017 report by the Guttmacher Institute found that 42% of women of reproductive age live in countries where abortion is either banned or allowed only in specific circumstances.

  • Canada allows for elective abortion at any time in the pregnancy.

  • UK – except Northern Ireland, women can freely obtain an abortion up to 24 weeks into their pregnancy. Terminations can be performed after this limit in exceptional circumstances, such as to save the life of the mother or because of a severe fetal abnormality.

  • United States – The US Supreme Court decriminalised abortion across the country in the Roe v. Wade case, 1973. It also struck down the essence of spousal consent for abortion.


Abortion in India

  • The first national study of the incidence of abortion and unintended pregnancy in India, conducted jointly by International Institute for Population Sciences (IIPS), Mumbai, the Population Council, New Delhi, and the New York–based Guttmacher Institute an estimated that 15.6 million abortions were performed in the country in 2015.

  • The abortion rate was 47 per 1,000 women aged 15–49 years; the estimated unintended pregnancy rate was 70 per 1,000 women in the same age group.

  • Close to three in four abortions were achieved using MMA drugs from chemists and informal vendors, rather than from health facilities.

  • Of the total abortions, 81% were through medical methods of abortion (or MMA); 14% used surgical methods; and remaining 5% were performed outside health facilities through typically unsafe methods.

  • Another research on unsafe abortion published in 2019 in BMJ Global Health presents a different picture: analysis of pregnant women aged 15–58 years from nine states in the Indian Annual Health Survey (2010–2013) showed that 67% of the abortions recorded were classified as unsafe.

  • The above study also found that women with no male children were more likely to have an unsafe abortion compared with women who had at least one male child.


Constitutional Underpinnings

Right to Privacy under Article 21 is applicable to abortion:

The Right to abortion may be interpreted to come under the Article 21. The Article dictates the Right to life and personal liberty. It can also be understood that a woman, who has been given such a right, might enjoy her personal liberty and alter her body in any way she can.


Timeline of Developments

  • Except in cases where it is conducted to save the woman’s life, abortion was criminalized (for both the woman and abortionist) by the IPC, 1862 and CrPC, 1898.

  • The Shah Committee carried out a comprehensive review of socio-cultural, legal and medical aspects of abortion, and in 1966 recommended legalization of abortion to prevent wastage of women’s health and lives on both compassionate and medical grounds.

  • The Medical Termination of Pregnancy (MTP) Act was passed by the Parliament in 1971, legalizing abortion in India (apart from erstwhile state of Jammu & Kashmir).

  • The Medical Termination of Pregnancy Rules and Regulations 1975 define the criteria and procedures for approval of an abortion facility, procedures for consent, keeping records and reports, and ensuring confidentiality.

  • The Medical Termination of Pregnancy (Amendment) Act 2002 was passed after a long consultative process with various stakeholders, and the amended Rules and Regulations came out in 2003.

  • The Medical Termination of Pregnancy Bill, 2020 (MTP Bill) was passed in the Lok Sabha in March 2020, and is due to be discussed in the Rajya Sabha before it becomes an Act.


Important Judgments

  • In Dr Jacob George v. State of Kerala, 1994 the Supreme Court ruled that a doctor not trained in medical termination of pregnancy conducts the surgery, he or she can be charged under IPC Section 314.

  • In V. Krishnanan v. Government of Tamil Nadu, 2001, the High Court of Madras affirmed women's rights to choose in the context of continuing pregnancy.

  • In Suchita Srivastava and anr v. Chandigarh Administration, 2009, the Supreme Court ruled in favor of the legal right of consent of mentally retarded persons under the MTP Act, 1971. It held that the state has an obligation to ensure a woman's reproductive rights as a component of her Article 21 rights to personal liberty, dignity, and privacy.

  • In Laxmi Mandal v. Deen Dayal Hari Nagar Hospital, 2010 the Delhi High Court ruled that preventable maternal death represents a violation of Article 21 of the Constitution.

  • The Supreme Court in the Samar Ghosh v. Jaya Ghosh case, 2011 ruled that a wife undergoing vasectomy or abortion without medical reason or without the consent or knowledge of her husband, may lead to mental cruelty.

  • In Ms. X v. Union of India & Others, 2016, the SC allowed a rape victim to abort her 24-week-old abnormal fetus as the pregnancy would pose a grave threat to the woman's mental and physical health.


Legislations regarding Abortion

MTP Act, 1971

The MTP Act decriminalised abortion without bringing an amendment to the IPC or abrogating the penal provisions.

The MTP Act sets some limitations regarding the circumstances when abortion is permissible, the persons who are competent to perform the procedure, and the place where it could be performed.

Abortion is possible within 12 weeks at the option of the pregnant woman.

Abortion is also possible within an extended period of 20 weeks with the permission of a Medical Board consisting of not less than two persons.


Shortcomings of the Act:
Restrictive for women - their freedom of choice is limited to a situation when her health and life are in danger or when the child if born would suffer from the abnormalities detected.
The Act is prejudiced against unmarried pregnant women.
At all stages of the pregnancy, the healthcare providers, rather than the women seeking abortion, have the final say on whether the abortion can be carried out.
The 20-week upper limit on the period in which abortion can be performed does not take into account extenuating circumstances; abnormalities in fetus can be detected even after 20-weeks into pregnancy.


MTP Bill, 2020 

The Bill increases the time period within which abortion may be carried out according to the MTP Act, 1971.

Changes proposed in conditions for terminating a pregnancy at different gestational periods:

  • The Bill addresses the bias against unmarried women and allows them to terminate pregnancy due to failure of contraceptive method or device.

  • It provides for the creation of a Medical Board for all states and union territories to decide on abortion cases after 24 weeks of pregnancy.

  • Protection of privacy: medical practitioners who reveal the details of women who have undergone abortion to anyone except person authorized by law may be punished with up to 1 year imprisonment, a fine, or both.


Abortion

Issues with the Bill:

  • The final say about conducting abortion continues to remain with the medical practitioner.

  • It does not specify the categories of women who may terminate pregnancies between 20-24 weeks and leaves it to be prescribed through Rules.

  • Based on the provisions of the Bill, for a case requiring abortion due to rape, that exceeds 24-weeks, the only recourse is through a Writ Petition.

  • The Bill does not take into account the 75% shortage of authorized doctors to perform abortion, and restricts the procedure to doctors with specialization in gynecology or obstetrics.

  • It does not provide a time period in which the Medical Board must make its decision regarding termination of pregnancy after 24 weeks.

  • The coverage of transgender persons under the Bill is unclear.

  • There is no provision for pregnant minors who may want to not disclose the pregnancy to anyone other than the doctor, but require consent from parents/guardians for abortion.


Related Legislation

Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 – punishes the act of sex-determination of fetus before or after conception.


Challenges for access to Safe Abortion

Access to safe abortions in India is a challenge due to various factors: stigma, restrictive laws, poor availability of services, over-regulation of drugs, high cost, and conscientious objection of health-care providers.

Complex process surrounding the activity with unnecessary requirements like mandatory waiting periods, mandatory counselling, provision of misleading information, third-party authorisation, and medically unnecessary tests that delay care which delay care.

A shortage of trained staff and inadequate supplies and equipment are the primary reasons many public facilities don’t provide abortion care.


Recommendations

  • Legislation – both national and international – should ensure that medical practitioners cannot refuse abortion services on conscience claims. These should be strictly regulated by the State.

  • Availability and quality of abortion services in health facilities should be improved: increased training and certification of doctors; permitting nurses, AYUSH doctors (practitioners of indigenous medicine) and auxiliary nurse midwives to provide MMA.

  • Quality of contraceptive services must be improved: availability in public health facilities, offering a wider range, counselling services, etc.

  • Public health facilities should have the equipment and drug supplies necessary to provide surgical abortion care and MMA.

  • Strategies that provide women with accurate information about how to use the MMA method safely should be implemented.

  • Systems of accessible support networks for health care providers to combat stigma, isolation, stress, and burnout should be created and institutionalized.

Abortion
Abortion