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Content

• Introduction
• Legal Provisions Regarding Abortion in India
• Key Provisions include (after 2021 amendment)
• Global Scenario
• Problems that still remain
• Supreme Court Verdict: X V NCT
  • Key Highlights & Significance of the verdict
• Supreme Court Verdict (Oct 2023): Rejected a 26 Week Pregnant women’s Plea for Abortion

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Introduction

Abortion refers to the removal or expulsion of an embryo or fetus from the uterus, resulting in, or caused by, its death. In India, abortion is allowed only in some cases. This has led to large number of unsafe abortions in the country.

Legal Provisions Regarding Abortion in India

• Section 312 of IPC made abortion under any circumstances, except danger to a pregnant woman’s life, as illegal in India and prescribed a punishment of 3 years for the offence.
• Medical Termination of Pregnancy (MTP) Act, 1971 overrides the section 312 of IPC.

Key Provisions include (after 2021 amendment):

• For pregnancies upto 20 weeks, termination is allowed under the opinion of one registered medical practitioner if:

A. The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
B. There is a substantial risk that if the child was born, it would suffer from any serious physical or mental abnormalities.

• • The 2021 amendment replaced the term ‘married woman and her husband’ with the term ‘woman and her partner’. Hence now unmarried women can also terminate her pregnancies within gestational limits under the act.
  • The explanation to the provision states that termination within 20 weeks is allowed if the pregnancy was caused by failure of contraceptive which was used for limiting the number of children or for preventing pregnancy. The anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant women.
• For pregnancies between 20-24 weeks, the Rules attached to the law prescribe certain criteria in terms of who can avail termination. It also requires opinion of two registered practitioner in this case.
  • Medical Termination of Pregnancy (Amendment) Rules, 2021 notified in Oct 2021.
  • The gestation limit for termination of a pregnancy in India has been increased from 20 to 24 weeks for some categories of women.
  • Section 3B of the Rules list seven categories which include survivors of rape/incest; minors; change in marital status during the ongoing pregnancy (widowhood, divorce); women with physical disabilities (major disabilities as per the criterias of PwD Act, 2016); Mentally ill women; cases of foetal malformation; women with pregnancy in humanitarian settings or disaster or emergency situation as may be declared by the government.
• Abortion beyond 24 weeks is allowed only in cases of substantial foetal abnormalities diagnosed by a medical board.
  • All states/UT governments will constitute a medical board consisting of gynecologist, pediatrician, radiologist/sonologist and other members notified by the state government.
• Abortion at any stage will be allowed if needed immediately to save women’s life. Here only opinion of one registered medical practitioner would be needed.
• Protection of Privacy: Name or other details of a woman whose pregnancy has been terminated shall not be revealed except to a person authorized in any law for the time being in force. Violation of this privacy norm is punishable with imprisonment up to a year, a fine or both.

Global Scenario:

• Globally there has been a trend towards liberalization of abortion laws and increased access to abortion services.
• Since the early 1990s, nearly 60 countries across the world eased abortion laws to expand the grounds under which abortion is legal.
• Only four countries, namely El Salvador, Nicargua, USA and Poland have removed legal grounds for abortion during this time. Most notably, the US Supreme Court eliminated the constitutional right to abortion in 2022.

Problems that still remain:

• Despite various laudable steps, the law didn’t go far enough to change the landscape of
  abortion rights in India:
  • Experts believed that extension of abortion permission till 24 weeks should be for all women rather than a few categories.
  • Women still hasn’t been given complete control over her body – Over the years, the understanding and appreciation of the need for women to have complete control over their bodies has increased. This is evident from various Supreme Court verdicts (e.g. the Puttaswamy Judgment) and International Conventions (e.g. the Convention on Elimination of All Forms of Discrimination against women). But, the amendment still leaves the decision of termination in the hands of doctors.
    • Various SC verdicts had supported this argument:
      • In ‘Suchita Srivastava vs Union of India’ case, the SC held that a women’s right to make reproductive choices is also a dimension of personal liberty guaranteed under Article 21 of the Constitution.
      • In ‘Puttaswamy verdict’ the court held that a women’s constitutional right to make reproductive choices and the right to “abstain from procreating” was read into the right to privacy, dignity and bodily autonomy.
      • Allowing termination of pregnancy beyond 24 weeks in case of only “foetal abnormalities” would mean that a woman would still need to file a writ petition before the court if she wishes to undergo termination for a reason other than the existence of “foetal abnormalities”.
      • Similarly, in case of “sex workers”, having a provision for “partner” in the framework for abortion, would be a challenge.
      • Finally, very restrictive laws, promote backstreet abortions/ illegal abortions or leads to abandonment of child.

    • Some operational issues:

      • Accountability of the medical practitioners and hospitals for providing the sanction needed for abortions. There is no onus on the doctors to respond within a clearly specified timeframe, preferably in matters of hours.
      • The law also doesn’t deal with situations where the two doctors are of contrasting opinion.

    • POCSO and MTP contradictions

    • MTP requires doctors to protect confidentiality of person getting abortion, whereas POCSO and the CrPC require mandatory reporting of sexual offences against children.

Supreme Court Verdict: X V NCT

Background:

• Provision 3B of the Medical Termination of Pregnancy Rules, 2003 allowed only some categories of women to seek termination of pregnancy between 20-24 weeks under certain extra ordinary categories.
• The Challenge to the provision was made in July 2022 when a 25 year old unmarried woman who moved the court seeking an abortion after Delhi High Court declined her plea to terminate pregnancy in the 24th week. The woman’s case was that she wished to terminate her pregnancy as “her partner had refused to marry her at the last stage”. She also argued that continuation of pregnancy would involve a risk of grave and immense injury to her mental health.
• However, the law allowed such change in circumstances only for “married” relationships.
• The Supreme Court, holding that the law had to be given a purposive interpretation, had allowed the petitioner to terminate her pregnancy in an interim order. However, the larger challenge to the law, which would benefit other women as well, was kept pending.

Key Highlights and significance of the verdict:

• The Court held that “the distinction between married and unmarried women under the abortion law through its rules is “artificial and constitutionally unsustainable” and perpetuates the stereotype that only married women are sexually active.
  • Rights available to married women under Medical Termination of Pregnancy Act, 1971, to abort foetus will be available to all women (married or in consensual relationships, and including “persons other than cis-gender women”).
• The court also expanded on Rule 3B(a) – “Survivors of sexual assault or rape or incest” – to include married women in its ambit. Although it doesn’t have the effect of striking down the marital rape exception under the IPC, the ruling said that the women who have suffered “marital assault” can be included in the provision. It is not inconceivable that married women become pregnant as a result of their husbands having “raped” them.
• Clarification on POCSO vs Right to Privacy norms:
  • The court acknowledged that adolescent girls who have indulged in consensual sex and are seeking abortion face problems while accessing safe and legal MTP due to provision of mandatory reporting to the police under the POCSO. The judgment clarified that while the need to report mandatorily remains, the identity of the pregnant person need not be disclosed in the cases of consensual sexual activity and where the minor and/or her guardian request the medical service provider to maintain confidentiality.
• Constitutional values, such as the right to reproductive autonomy, the right to live a dignified life, the right to equality, and the right to privacy has led court to reinterpret the contours of the MTP Act and the MTP rules.
  • The ruling “recognizes” the right of unmarried women; expands and enlarges women’s reproductive right.
  • The Court said “Article 21 of the Constitution “recognises and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. Importantly, it is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion…
  • Depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity”
  • While recognizing right to equality, the court also said that her agency and choice is equally important.
• The apex Court has thus created a progressive jurisprudence which interprets the law from the point of view of rights of persons accessing the services.
  • The verdict interprets the provisions of the law/rules as per the changing social mores.
  • The verdict said “transformative constitutionalism promotes and engenders societal change by ensuring that every individual is capable of enjoying the life and liberties guaranteed under the Constitution” and “the law must remain cognizant of the fact that changes in society have ushered in significant changes in family structures”
• The judgement also makes Indian legal system in compliance with international norms which obligates India to provide safe and legal access to sexual and reproductive health and rights that include abortions.
• Report by UN population Fund in 2022 – nearly 67% of abortions in India are deemed unsafe killing eight women on an average daily.

Supreme Court Verdict (Oct 2023): Rejected A 26 week Pregnant Women’s Plea for Abortion:

A married women 26 weeks pregnant had approached the SC seeking to terminate her pregnancy
citing inability to take care of the child due to post-partum depression and other health issues.
She has two other children and the new pregnancy had gone undetected due to lactational
amenorrhea. Her last pregnancy was an year ago and she is being treated for postpartum psychosis.

The Supreme Court rejected the woman’s plea for abortion.

Reasons why court denied the request:

• The AIIMS medical board in its report found no cause for immediate concern: the foetus
  was healthy and viable.
• The court also added government would bear the cost and woman may give the child for
  adoption post delivery.
• It said that there are rights of unborn child too and it should be balanced.

Analysis:

• Rights of women vs Foetal Rights
  • While in X V NCT the court declared that ‘it is woman alone who has the right over her body’ and is the ultimate decision maker. However, in practice, when individual women come before courts, a discourse on foetal rights has begun to emerge.
• Pro-Life and Pro-choice debate:
  • This conversation is largely alien to India. But now, court has initiated this debate and thus it has to be engaged with.
  • A pro-choice discourse however, is not materially and politically conducive argument for Indian Society.
• Way Forward: Apex Court’s decision (Sep, 2022) is only the first step forward in the Indian women’s fight for reproductive and bodily autonomy. Much more needs to be done:
  • The true measure of the success of the amendment and the 2022 SC judgment would be its effective implementation and how it is able to bridge the access gaps.
    • Focus on increasing access – increase the number of gynaecologists’ and obstetricians in community health clinics in rural areas.
    • Take strict action against illegal abortion clinics.
    • Put in place a rights-based approach, telemedicine etc.
• Bring clarity on the “Rights of a foetus”
  • The rights of foetus under the Indian Constitution is unclear – there is no upfront articulation about it. Whether the foetus possesses rights, or simply interests is also ambiguous.
  • A 2016 Bombay High Court decision relied on international human rights law to hold that the foetus doesn’t have rights till birth.
  • In essence, the state of law is jumbled, and requires urgent deliberation, especially if foetal interests (or, rights) are being used to restrict abortion rights.
• Make the wording of the law more inclusive by replacing “Women” with “Person”.
  • Many people who don’t identify as women but can experience pregnancy. They also require access to safe abortions.
• Some other amendments which could further make MTP progressive include:
  • Allowing abortion upto 12 weeks at the will of the pregnant women.
  • Extending the option of abortion beyond 24 weeks to survivors of sexual abuse/rape.
• Increased Awareness about the law and the SC Verdict:
  • This is needed as abortion still remains a stigma, especially in the lower rungs of society with motherhood constantly being looked through a moral prism.
• Mainstream medical curriculum as well as Society -> needs to be sensitized towards women’s right and their freedom of choice to either keep or terminate her pregnancy, which would ultimately affect her entire life by interrupting her education, her career, or affecting her mental health.

Example Questions

• Discuss the key reasons for increasing unsafe deliveries in the country. In this light discuss
  how the 2021 amendment to the Medical Termination of Pregnancy Act, 1971 resolve these
  issues. [15 marks, 250 words]