Abortion in India: How Abortion Go From Being a Crime to Being a Right In India?

The phenomenon of abortion has been debated since antiquity and is still a contentious issue today because it involves taking a human life. If we examine the classic defences of or against abortion, we discover that religion and law serve as the respective driving principles. The two sides of this debate can be summed up in two words: pro-choice and pro-life. A pro-choice person holds that everyone has the fundamental right to choose whether and when to have children. They hold that every person has unrestricted liberty over their body. Abortion is opposed by someone who is pro-life. They think that everyone has the right to live, even unborn people. They care much less about a woman's life who becomes pregnant unintentionally or the welfare of a new-born child. Women's rights to control their sexuality, fertility, and reproduction have rarely, if ever, been considered in the development of abortion-related regulations. The decision to have an abortion is one that the lady in question makes consciously and on her own. For women to have their entire dignity and personhood, they must have control over their own bodies and the reproductive process.

Background

Abortion was made illegal for both the woman and the abortionist under the British administration starting with the Indian Penal Code of 1860 and The Code of Criminal Procedure of 1898, apart from saving the woman's life. Abortion became legal in some European and American nations following the Roe v. Wade decision that a pregnant woman had the right to choose to have an abortion without undue government interference. The Shah Committee, which the government appointed in 1964, conducted a thorough analysis of the socio-cultural, legal, and medical aspects of abortion. In 1966, the Shah Committee made the compassionate and medically sound recommendation that abortion be made legal to prevent the waste of women's health and lives. The Medical Termination of Pregnancy Act, 1971 was enacted by the government in response to the committee's report (MTP Act of 1971).

Medical Termination of Pregnancy Act, 1971 (MTP ACT)

The eight provisions that make up this Act cover a variety of topics, including the location, timing, and conditions under which a certified medical professional may perform a termination. The MTP Act grants a registered medical professional complete immunity from legal action for harm done in good faith to an abortion-seeking woman. Additionally, it allows the termination of pregnancies with the consent of a registered medical professional if the gestational period does not exceed 12 weeks, and with the consent of two registered medical professionals if the gestational period does exceed 12 weeks but does not exceed 20 weeks. The grounds for termination include risk to the mother's life or serious harm to her physical or mental health, or there is a significant risk that the unborn child will have a physical or mental abnormality or pregnancy because a married woman was unable to use contraception, or if pregnancy results from any sex crime like rape. Additionally, it was declared that only government hospitals or locations appointed by the government may perform pregnancy terminations. The MTP Act was repeatedly amended to do rid of the lengthy process, make it more flexible, and make abortion services easily accessible to everyone. However, given current cultural developments and technology advancement, the MTP Act of 1971 is no longer relevant. According to a report published in Lancet Global Health, India recorded 15.6 million abortions in 2015, out of which 78% of the total abortion occurred were outside the health facilities, 48%, of pregnancies were unintended and 0.8 million women had abortions using dangerous methods, endangering their health and lives. There are many factors that contribute to unsafe abortions, including shame, confidentiality, ignorance, anonymity, a lack of aid, and others.

Medical Termination of Pregnancy Amendment Bill, 2020

The Medical Termination of Pregnancy (Amendment) Bill, which makes it simpler for women to stop the pregnancy safely and legally, was approved by the Union cabinet in January 2020. Given that it needs the consent of two medical professionals, it extends the legal gestation term to 24 weeks. This is done with rape survivors, incest victims, and other vulnerable women in mind, such as minors and women with disabilities. If a contraceptive method failed, the amendment also allowed all women not just those who were married to seek an abortion. Additionally, in situations where the Medical Board has found substantial foetal anomalies, the highest gestational limit would not be applicable. This addresses the morbidity and mortality of pregnant women brought on by unsafe abortion. Women would also be saved from the anguish of asking the court for permission, as there are many instances in which worried women do not recognize they are pregnant in the first five months and run out of time. The bill also placed a strong emphasis on protecting the privacy of those women who are having their pregnancies terminated. This is a great step for a nation like India where abortion is still stigmatized and seen as taboo because it would protect women's dignity, autonomy, privacy, and fairness. Now, India will be recognized as one of the countries having a highly progressive law that allows legal abortions for a variety of medical, humanitarian, and societal reasons.

Issues with the current legislation

Most women in India still lack access to safe abortion procedures despite such humanistic and liberal legislation. This legal structure set up by the MTP Act raises several concerns. Despite being a step in the right direction, the MTP Bill, 2020 still does not address most of the problems with this act.

Lack of autonomy of the child-bearer

Even though abortion is now legally allowed in a variety of circumstances and at various stages of pregnancy, healthcare professionals not the women seeking the abortion have the final word on whether it can be performed or not. Abortion is not seen as a woman's right, and the doctor makes the final call. A woman may have to either lie or beg the doctor to end the pregnancy purely based on her own free will. Because of this, pregnant women now lack autonomy in the decision to end their pregnancy and must face the added stress and expense of securing a doctor's consent. The fact that a lady became pregnant despite her efforts to avoid pregnancy must be explained. The pregnancy may have been unwanted from the start, but the woman may feel she must claim a contraceptive failure to justify abortion within the bounds of the law, creating an atmosphere of deceit. So, the MTP Act's aim or scope did not include a woman's freedom to make her own decisions, and it still does not. Additionally, because of advances in medical research, it is now possible to diagnose fetal anomalies even 20 weeks into a pregnancy. Even if there is a serious foetal anomaly and the expecting mother does not want to continue the pregnancy owing to the mental anguish associated with the lifelong duties involved, the MTP Act currently gives no recourse to the woman and only allows abortion after 20 weeks when it is required to save the mother's life. In the year of 2008, Niketa Mehta brought a petition to the Bombay High Court to seek permission to abort their fetus that had been diagnosed with a heart defect in its 22nd week. Despite receiving widespread attention, the petition was denied, and the petitioner ultimately miscarried in the 27th week of her pregnancy. The amendment bill of 2020 removes the upper gestational limit from consideration when seeking an abortion if significant foetal abnormalities are figured out by the Medical Board, but it still requires the doctors to be given the proper orders to avoid unnecessary delays that would raise the risks associated with late abortion.

Infringement of right to privacy and personal choice

The Supreme Court has acknowledged that a woman's right to choose her reproductive options and her decision to have an abortion are aspects of her personal liberty and fall under the purview of her unalienable right to privacy. According to Article 21 of the constitution, the right to an abortion is a subset of the right to privacy. It can also be said to encompass a woman's unalienable right to control her reproductive system. In the Roe v. Wade decision, the Supreme Court of the United States of America ruled that abortions were covered by the right to privacy. According to international law, Articles 12 and 17 of the Universal Declaration of Human Rights and the Covenant on Civil and Political Rights, respectively, provide freedom from interference in one's privacy and family life.

The K. S. Puttaswamy decision in India explicitly recognized a woman's fundamental right to choose her reproductive options as a part of her personal freedom under Article 21 of the Indian Constitution. In Suchita Srivastava v. Chandigarh Administration, the bench reiterated this stance and declared that a woman's right to reproductive freedom includes the freedom to carry a pregnancy to term, to give birth, and to raise children afterward. It was also ruled that these rights are an integral aspect of a woman's right to privacy, dignity, and physical integrity. One alone has the right to their body; no one else has this right. Basic human rights are violated whenever they are placed upon someone without their agreement. The morality of abortion is a constitutional issue as well. The main issue at hand is whether adolescent girls are covered by these rights. Women who have abortions are strictly protected from disclosure under the MTP regulations. The Protection of Children from Sexual Offenses (POCSO) Act, however, runs counter to the secrecy procedure. According to this law, it is still illegal to engage in sexual activity with an underage girl, even if it is consenting.

As a result, if a pregnant adolescent girl visits a doctor seeking an abortion, her right to privacy is violated because the doctor must report the girl as a victim of sexual assault to the authorities, even if doing so goes against her desires. Teenage females may be hesitant to seek out contraceptive or other reproductive health care because of this for fear that their doctors will report them for violating their privacy and that their partners may face criminal charges. To defend the right to health of teenage girls who are pregnant and to save the lives of women who are now compelled to seek unsafe abortions from unlicensed medical providers, there is an urgent need for effective, understandable, and comprehensive regulations on abortion.

Conclusion

In conclusion, one of the three main causes of maternal death and morbidity continues to be abortion. Despite the MTP Act having been in place for nearly 49 years, more unsafe abortions occur than safe ones. This is because everything related to sex or sexuality is still taboo in India. Abortion is related with a negative mindset. One of the primary causes of this predicament is ignorance and illiteracy. WHO’s Safe Abortion Guidelines points out the importance of knowledge about safe and legal abortion and how crucial it is to protect women’s rights and health. At smaller scales like "Anganbaadi" and panchayats, better family planning and awareness should be carried out. At all societal levels, there is a need to raise awareness about contraception and abortion, and the government should offer free counselling to citizens.

Due to governmental and legal constraints, a lack of accessible, reasonably priced abortion services, and women's lack of awareness about abortion, one of the main causes of unsafe abortion is the inaccessibility of safe abortion facilities. The POCSO Act's Section 19(1) should be changed to let pregnant teens to have abortions without having to worry about statutory reporting obligations breaching their confidentiality. The MTP Act should be amended to include requested abortion while keeping in mind women's rights to privacy, autonomy, and health. There is still a long road ahead for progressive abortion laws with a more approachable and accessible system that would allow medical practitioners to do their part safely within the confines of the law increasing access to safe abortion services in India. The current abortion laws do not allow the exercise of this right, which obviously shows that it does not do enough to secure women's interests.