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Abortion- Right of Every Woman

INTRODUCTION

Access to the termination of pregnancy has always been a subject of debate in numerous countries. The literature on the effects of abortion legalization laws has focused either on the short-term effects or consequences on the fertility of a woman or the short and long-term impacts on children born after a given reform. In the mid-1970s, the women’s movement demanded that abortion be legalized as part of women’s rights. Unmistakably, without control over one’s own reproductive lives, women couldn’t be the equivalent of men–no matter what progresses women made in their jobs or any other field. This is the reason, why socialists argue that all women deserve the right to control their bodies, without interference from anyone.

In the landmark judgement of Suchita Srivastava v. Chandigarh Admin[1], the Supreme Court of India held that a woman’s reproductive autonomy is an integral part of the Right to Life, guaranteed to every individual under Article 21 of the Constitution. Even after this judgement, women were denied this right and were compelled to resort to clandestine and unsafe abortions. In 2015, the Journal of Medical Ethics[2], according to which 10-13% of maternal deaths in India can be attributed to unsafe abortions.

Moreover considering a larger picture according to the data provided by the World Health Organisation, around 25 million unsafe abortions[3] were estimated to have taken place worldwide each year—almost all in developing countries.

However, today the entire terrain of the abortion debate has been moved; as the laws have now been enacted which allow women to get a safe abortion.

MEDICAL TERMINATION OF PREGNANCY ACT, 1971

Parliament of India enacted the Medical Termination of Pregnancy Act[4] (hereunder mentioned as ‘The Act’), intending to provide provisions regarding the termination of certain pregnancies by registered Medical practitioners in India. Abortion, under the Act, was subjected to several conditions. Section 3(2) (b) of the Act talks about the ability to get an abortion was depended on the opinion of the doctor alone and could only be terminated within 20 weeks of gestation.  This barrier or the legal limitation tragically crushed the rights of numerous women, especially rape survivors. In numerous cases, rape survivors were forced to give birth to the child if her pregnancy had crossed the 20-week limit; beyond which abortion is prohibited or illegal under the Act.

There was this incident[5] of refusal to terminate the pregnancy by the Supreme Court, after a 19-year-old mentally challenged orphan girl in Chandigarh was raped by a security guard and her pregnancy was detected in May 2009. A four-specialist multi-disciplinary board, with one child psychiatrist, suggested that although she is physically fit, the continuation of pregnancy can jeopardize her mental health. The Punjab and Haryana High Court, on these recommendations, decided to medically terminate that girl’s pregnancy. An NGO appealed in the Supreme Court questioning the validity of this order; however, the Apex Court ordered the girl to continue with the pregnancy.

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Furthermore, the Act of 1971 allows the doctor to perform the procedure of terminating a pregnancy only if the following situations were complied with, viz.-

  1. If the pregnancy is harmful to a mother’s life or her physical or mental health.
  2. if there is a chance that the child would suffer from physical or mental abnormalities which would leave it seriously handicapped.

Additionally, clause (a) of Section, 3(2) of the Act, requires that in case of pregnancies not exceeding 12 weeks, abortion can be performed only if a clinical practitioner forms an opinion that continuation of the pregnancy would jeopardize the mother or the life of the foetus. Such provisions subsequently led women, including adolescents, with unwanted pregnancies to unsafe abortion.

AMENDMENT OF 2020

On January 29, 2020, India witnessed changes to the existing abortion laws. The Union Cabinet, chaired by Prime Minister Narendra Modi, affirmed the Medical Termination of Pregnancy (Amendment) Bill, 2020, amending the current Medical Termination of Pregnancy Act, 1971.[6]

The Amendment allowed women to seek abortions as part of reproductive rights and gender justice and placed India in the top League of Nations serving women who wish to make individual decisions from their point of view and predicaments. The amendment raised the maximum limit of the gestation period for Medical Termination of Pregnancy from 20 to 24 weeks, including rape survivors, victims of incest, differently-abled women, and minors; acknowledging the Failure of contraception. However, this upper gestation limit doesn’t apply in cases of substantial foetal abnormalities diagnosed or analysed by a medical board.

Moreover, the amendment made abortion available to “any woman or her partner” replacing the previous provision which was only provided to a married woman or her husband and further, tended the necessities of gender equality and justice through the prism of contraceptive and reproductive rights, giving a solution which women in our country have sought for quite a while and further increased access of women to safe clinical services, which will subsequently reduce maternal mortality and morbidity emerging out of unsafe abortions and further seeks to strengthen provisions for protecting the dignity and privacy of women and guarantees clarity among medical practitioners, who have in the past demonstrated inhibition towards pregnancy termination procedures especially in cases of survivors of rape– where survivors were subsequently asked or rather forced to approach the courts for judicial sanction or legal approval. It is, however, safe to say that the amendment allowed greater autonomy to women.

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According to a statement[7] made by the Government: “The Medical Termination of Pregnancy (Amendment) Act, 2020 is for increasing access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds.”

CONCLUSION

Around the world, abortion is recognised and acknowledged as a significant aspect of the reproductive health of women. This right i.e. to terminate a pregnancy or a right to decide whether or not to give birth to a child must be viewed as an extension to reproductive rights.

The pro-choice perspective and held that the life of an unborn foetus can’t be given more significance than the life of the woman i.e. the unborn foetus isn’t entitled or qualified to human rights, establishes that women’s rights, which also includes reproductive rights, are the mainstream part of human rights and basic liberties.

Moreover, access to safe abortion or termination of pregnancy has also been established as a human right by various international frameworks, for example, World Health Organisation in 2003, established access to safe abortion as a human right and developed technical and policy guidelines to help governments enact progressive abortion laws. According to the organisation, every woman has the right to attain the highest standard of sexual and reproductive health. In addition to it, World Health Organisation also conveys a right on every woman to decide freely and responsibly without coercion, undue influence and violence, the number, spacing and timing of their children and to have the information and means to do the same.[8]

With the Amendment of 2020, India has taken a step towards safety, prosperity and well-being of the women as driving or forcing somebody to carry on an undesirable and unwanted pregnancy, or forcing them to seek out an unsafe abortion, is an infringement of their human rights, including the rights to privacy and bodily autonomy.  It is crucial that national laws with regards to abortion- respect, protect and fulfil the human rights of pregnant women and not drive them to seek out unsafe abortions. With the Medical Termination of Pregnancy (Amendment) Bill, 2020, our country will now stand among other countries with highly progressive laws concerning abortion.

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It can be concluded by saying that approval of this bill would offer health and quality of life benefits to thousands upon thousands of girls, teenagers and women. Law on Voluntary Termination of Pregnancy is a huge step forward in the acknowledgement of women’s independence. It recognizes the standards of bioethics, which depends on an express recognition of human dignity.


[1] Suchita Srivastava v. Chandigarh Admin (2009) 14 SCR 989 (India).

[2] Rohan Gupta, Abortion in India: Experts call for changes, DOWN TO EARTH(August 29, 2019), https://www.downtoearth.org.in/news/health/abortion-in-india-experts-call-for-changes-66369.

[3] Kimberly Chriscaden, Worldwide, an estimated 25 million unsafe abortions occur each year, WORLD HEALTH ORGANIZATION (September 28, 2017), https://www.who.int/news/item/28-09-2017-worldwide-an-estimated-25-million-unsafe-abortions-occur-each-year.

[4] The Medical Termination of Pregnancy Act , 1971, No. 34, Acts of Parliament, 1971(India)  

[5] Suchita Srivastava v. Chandigarh Admin (2009) 14 SCR 989 (India).

[6] The Medical Termination of Pregnancy (Amendment) Bill, 2020, No.55 of 2020, Acts of Parliament, (India).

[7] Abantika Ghosh, Explained: Changes in 1971 abortion law, and why India feels it necessary, THE INDIAN EXPRESS (Feb 1, 2020, 8 AM), https://indianexpress.com/article/explained/explained-1971-abortion-law-changes-india-6244999/.

[8] Safe Abortion: Technical and Policy Guidance for Health Systems, WORLD HEALTH ORGANIZATION (May 2003) ,https://apps.who.int/iris/bitstream/handle/10665/42586/9241590343-eng.pdf .


Cite this article (The Bluebook 20th ed.)-

Muskan Pipania and Prakhyat Gargasya, Abortion- Right of Every Woman, Ex Gratia Law Journal, (April 1, 2021), https://exgratialawjournal.in/journal/volume-2/volume-2-issue-2/abortion-right-of-every-woman-by-muskan-pipania-and-prakhyat-gargasya/.


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Author

Muskan Pipania
Student - StudentDr. Ram Maonhar Lohiya National Law University, Lucknow
Prakhyat Gargasya
Student - Dr. Ram Maonhar Lohiya National Law University, Lucknow