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ABORTION IN INDIA: LEGAL OR ILLEGAL?

~ Harnoor Kaur


INTRODUCTION

The most contentious matter in the domain of medical sciences- ABORTION, has undergone a lot of phases to finally get an independent law passed in this direction. Prior to 1971, abortion laws added a lot to the misery of women since abortion in its entirety was termed as a criminal offence in India. In response to the frightening rise in unsafe pregnancies, the Medical Termination of Pregnancy Act received the force of law in 1971.


Abortion has been christened as “Termination of Pregnancy” in the Act, which means “a procedure to terminate a pregnancy by using medical or surgical methods” (Section 2(e) of The Medical Termination of Pregnancy (Amendment) Bill, 2020).

ABORTION: IS IT LEGAL?

The answer to the most controversial question fortunately is “Yes, in certain prescribed circumstances.”

Section 3 of the MTP Act, 1971 bestows legal status upon abortion in some instances. Legalization of abortion has proffered some degree of power over women to exercise her right of making choices, with of course some restrictions over it by the way of Right to life of an unborn child. Circumstances where Right to Abortion is recognized, along with some reasonable restrictions have been discussed underneath:- 

- The consent of one medical practitioner, where the pregnancy has not exceeded the time frame of 12 weeks; and the consent of two medical practitioners where the pregnancy is in the phase of 12 weeks to 20 weeks, has been mandated to abort legally. 

- The right to abortion till 20th week is also not absolute. The same will be protected by law only if consented by the mother; but if she is not an adult or is not mentally sound, the act needs to be consented by her guardian. 

- Along with the consent, abortion can be done, only if the pregnancy has any of the issues listed below:

(1) Poses risk to the precious life of pregnant woman,

(2) Causes harm to the psychological and physical wellbeing of pregnant woman,

(3) Unborn child, if born, could be vulnerable to any sort of abnormality, be it physical or psychological,

(4) Is an aftermath of rape,

(5) Is an outcome of the failure of a contraceptive device utilized either by the married woman or by her husband, to avoid pregnancy.

NOTE: Abortion is legal for married as well as unmarried women in the first four occasions addressed above; however 5th occasion legalizes abortion only for married women.

Section 5 of the MTP Act, 1970 makes an abortion legal in exceptional circumstances, where immediate abortion is the last resort to bring the women out of the death’s mouth. In such cases, above mentioned precedents take a back seat.


MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) BILL, 2020: A WAY FORWARD

Taking into consideration multifarious limitations in MTP Act, 1971 and several medical breakthroughs; MTP (Amendment) Bill, 2020 was introduced and passed in Lok Sabha in March 2020, so as to make this statute in tune with the 21st century. Some of the important amendments put forward are:

- Termination of pregnancy till 20th week with the consent of one doctor and till 24th week with the consent of two doctors has been allowed. 

- Unwanted pregnancy despite using contraceptive device has been extended as a ground of abortion equally to unmarried girls. 

- In the event of any abnormality in foetus, pregnancy can be terminated by the Medical Board. All the restrictions have been uplifted in such cases.


CONCLUDING REMARKS

Legislating upon such a sensitive issue could very safely be regarded as a welcome step on the part of Government to ensure and ameliorate independence of women. Since “every coin has two sides”, similarly, this act also has some limitations. Taking for instance, wide powers with the medical practitioner, jeopardizes women’s liberty. Is this justifiable in this 21st century that women have to take opinion of a third party, upon the question of deciding “How to deal with her own body?”


Citing Honourable Supreme Court while concluding, “a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ under Article 21 of the Constitution.”

(Suchita Srivastava v. State (UT of Chandigarh) (2009) 9 SCC 1)

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