Indian Laws on Abortion

Why in the News?

Recently, the United State Supreme Court overturned the landmark Roe v. Wade judgement of 1973, which gave women in America the right to have an abortion before the foetus is viable outside the womb or before the 24-28 week mark.

Key Points:

How did abortion laws come about in India?

• In the 1960s high number of induced abortions were taking place in India.

• In response, the Union government constituted the Shantilal Shah Committee to deliberate on the legalisation of abortion in the country.

• In order to reduce maternal mortality from unsafe abortions, the Medical Termination of Pregnancy (MTP) Act was enacted in 1971.

Evolution of MTP Act from 1971 to 2021:

• New rules on abortion were introduced in 2003, it allows the use of then newly discovered abortion medicine misoprostol, to medically terminate a pregnancy up to seven weeks into it.

• The latest amendment to the MTP Act 1971 was made in 2021.

• Under the Medical Termination of Pregnancy (Amendment) Act, 2021, abortion is permitted after medical opinion under stipulated circumstances.

• The 2021 Act increased the upper limit of the gestation period to which a woman can seek a medical abortion to 24 weeks from 20 weeks permitted in the 1971 Act.

• Another major amendment was that MTP could now be accessed on the opinion of a single registered medical practitioner up to 20 weeks of the gestational age.

  • From 20 weeks up to 24 weeks, the opinion of two registered medical practitioners is required.

  • In the previous version of the Act, the opinion of one registered doctor was required to access a medical abortion up to 12 weeks of pregnancy, while two doctors were required to endorse the abortion up to 20 weeks.

Judicial Interventions in cases of Abortions:

• Justice K.S.Puttaswamy v. Union of India and others (2017): The Supreme Court had held that the decision by a pregnant person on whether to continue a pregnancy or not is part of such a person’s right to privacy as well and, therefore, the right to life and personal liberty under Article 21 of the Constitution.

• Calcutta High Court (2022): It allowed a 37-year-old woman, who was 34 weeks into her pregnancy, to get a medical abortion as the foetus was diagnosed with an incurable spinal condition. This judgment allowed abortion for the furthest gestation in the country so far.

Challenges:

• Shortage of Obstetrician-Gynaecologists: The MTP Act requires abortion to be performed only by doctors with specialisation in gynaecology or obstetrics.

  • However, the Ministry of Health and Family Welfare’s 2019-20 report on Rural Health Statistics indicates that there is a 70% shortage of obstetrician-gynaecologists in rural India.

• Unsafe Abortions: As the law does not permit abortion at will, it pushes women to access illicit abortions under unsafe conditions.

  • Statistics put the annual number of unsafe and illegal abortions performed in India at 8,00,000, many of them resulting in maternal mortality.

• Mandatory reporting under the POCSO: Mandatory reporting requirements under the Protection of Children from Sexual Offences Bill (POCSO), 2011 law against child sexual offences, impact privacy and hinder access of adolescents to safe abortion services.

• Unregulated Ultrasound clinics: The unregulated ultrasound clinics in India continues to facilitate the illegal practice of sex determination, resulting in unsafe abortions and female foeticide.

• Unmarried and transgender people continue to face stigma and can be turned away from health facilities, forcing them to resort to unsafe care.

Way Forward:

• There is an urgent need to shift the discourse on abortions from just being a family planning and maternal health issue to one of sexual health and reproductive rights issue.

• Health systems must be improved to ensure good quality and respectful abortion care.