Legitimacy and Legal Framework for Abortion in India

INTRODUCTION

Abortion is a delicate and complicated topic, and different nations have varied laws governing it. India’s abortion laws have changed significantly over the years in order to protect  health and reproductive rights of women. This article covers the relevant portions of the Bhartiya Nyaya Sanhita which provides  general definition of abortion and miscarriage, and discusses abortion regulations in India. It also emphasizes the importance of the Medical Termination of Pregnancy (MTP) Act, 1971.

The Supreme Court of India has been instrumental in shaping the country’s stance on reproductive rights and access to safe abortion. By interpreting the Constitution, the court has broadened the scope of fundamental rights such as the right to life, personal freedom, and equality to include a woman’s autonomy over her own body and reproductive health. In essence, the court has recognized that a woman’s right to make choices about her own body, including the decision to terminate a pregnancy, is an integral part of her personal liberty and dignity. This has been reflected in several landmark judgments related to medical termination of pregnancy, which have helped to clarify the legal framework surrounding abortion in India.

Some of the key judgments that have contributed to the evolution of abortion laws in India will be highlighted in this article, providing valuable insights into the country’s journey towards recognizing and protecting reproductive rights.

ABORTION AND MISCARRIAGE

When we talk about abortion, we are referring to the medical procedure that ends a pregnancy, resulting in the loss of the embryo or fetus. In simpler terms, it is the removal of the fetus from the womb. From a legal point, induced abortion is defined as a planned act to terminate a pregnancy, essentially ending the life of the fetus. According to legal expert P. Ramanatha Aiyer, abortion is essentially a premature delivery or expulsion of the human fetus, which means it is not yet capable of surviving on its own. It’s the emptying of the uterus before the fetus is viable.

On the other hand, a miscarriage occurs when the contents of the womb, including the embryo or fetus, are expelled before the pregnancy reaches full term. In layman terms, it means giving birth to a baby that’s not yet fully developed which results in its death. Medically speaking, a miscarriage is the spontaneous loss of a pregnancy, typically occurring within six weeks of conception.

In medicine, there are three words that refer to the removal of a fetus depending on the stage of gestation at which the removal or termination of pregnancy occurs: abortion, miscarriage, and premature labor. When a pregnancy is ended before the placenta forms, that is,within the first three months of pregnancy, it is referred to as an abortion, in contrast, a miscarriage occurs when the fetus is expelled during the first four to seventh months of gestation before it is viable or developed. Premature labor, which is the third word, refers to the delivery of a premature infant who may be able to survive.

The two names mentioned above are frequently used interchangeably. Taylor, in his Principle and Practice of Medical Jurisprudence (13th edition), asserts that the phrases ‘miscarriage’ and ‘abortion’ is legally equivalent since the fetus is recognized as human life from the moment of fertilization. When discussing these two terms—abortion and miscarriage—the Apex Court ruled in Jacob George v. State of Kerala (1994) that miscarriage refers to “spontaneous abortion,” whereas abortion is defined as “miscarriage produced by unlawful means.” The Court went on to say that an abortion or miscarriage involves the taking of a fetus’s life.

Constitutional Provisions for Abortion and Reproductive Rights of Women in India

The Indian Constitution, does not mention the right to abortion, has been interpreted by the judiciary to encompass reproductive rights and women’s healthcare through various fundamental rights. Two key provisions, Articles 21 and 14, play a significant role in shaping the legal framework for abortion and reproductive autonomy.

Right to Life and Personal Liberty (Article 21)

Article  21 of the Indian Constitution ensures that every citizen is entitled to the right to life and personal liberty. The Supreme Court has expansively interpreted this right to include reproductive autonomy and healthcare, recognizing the essential link between a woman’s right to life and her ability to make choices about her reproductive health. In the landmark case of Suchita Srivastava (2009), the Supreme Court held that reproductive rights are an integral part of the right to life and personal liberty under Article 21. This interpretation underscores the importance of protecting a woman’s autonomy and decision-making capacity in matters related to her reproductive health.

Status of the Unborn Child                               

The rights of the fetus are governed by Section 20 of the Hindu Succession Act, 1956, which implies that the fetus’s life should be protected from the moment of conception. Furthermore, the unborn child is considered a person with rights, albeit within the limits established by law. This provision highlights the need to balance the rights of the fetus with those of the mother, ensuring that both are protected and respected.

Right to Equality (Article 14)

Article 14 of the Indian Constitution guarantees the right to equality and prohibits discrimination. The Supreme Court has interpreted this right to include gender equality, emphasizing the importance of ensuring equal access to healthcare services, including safe and legal abortion, for women.

Medical Termination of Pregnancy (MTP) Act, 1971

Background: Prior to 1970, terminating a pregnancy was considered a social stigma and illegal in India. However, with the introduction of the MTP Act in 1971, the scenario changed, and abortion was permitted under specific circumstances.

Objective: The primary goal of enacting the MTP Act was to enable the termination of certain pregnancies by qualified medical professionals and related matters. The Act acknowledges women’s reproductive  rights and aims to safeguard their health while providing safe pregnancy termination options under specific conditions.

Key Provisions some of the significant aspects of the MTP Act include:

Reproductive Autonomy: The Act recognizes women’s reproductive rights, empowering them to make informed decisions about their health and well-being.

Safe Abortion: The legislation ensures that pregnancy terminations are performed by registered medical practitioners, reducing the risk of complications and promoting safe healthcare practices.

Specific Circumstances: The Act outlines specific conditions under which pregnancy termination is permitted, balancing individual rights with societal concerns.

Section 2 of MTP ACT defines important terminologies like “guardian,” “medical board,” “mentally ill person,” “minor,” “registered medical practitioners,” and “termination of pregnancy”.

Certain conditions allowed to terminate pregnancy.

Section 3 of MTP Act defines specific circumstances and gestational age limits under which a registered medical practitioner can perform an abortion in India.

In the first 12 weeks of pregnancy, a woman can have an abortion without needing permission or special reasons.

Between 12 and 20 weeks of gestation, a woman seeking an abortion must obtain approval from two registered medical practitioners. These practitioners must conduct a thorough medical assessment and evaluation to determine that continuing the pregnancy would pose a significant threat to the woman’s life or result in severe physical or mental harm. Additionally, they must also consider the potential risks to the fetus, and if they conclude that there is a substantial likelihood of the baby being born with physical or mental abnormalities, an abortion may be permitted.

Section 3(4) of MTP Act, there are specific requirements for obtaining consent for an abortion in certain circumstances. If the pregnant woman is under the age of 18, or if she is 18 or older but has a mental illness, her pregnancy cannot be terminated without the written consent of her guardian.  

Section 4 OF MTP ACT, it defines the authorized location where pregnancy terminations can take place.

Abortions can only be performed in two types of facilities: government-established or maintained hospitals, or facilities that have been explicitly approved by the Government for this purpose. This provision ensures that pregnancy terminations are only carried out in safe and regulated environments, thereby protecting the health and well-being of women seeking this medical intervention.                                               

Section 5 of the MTP Act defines non applicability and provides specific exceptions to the general rules defined in Sections 3 and 4. In emergency situations where the life of the pregnant woman is at risk, the provisions of Sections 3 and 4 do not apply. In such cases the termination of pregnancy can be performed immediately by a registered medical practitioner to save the woman’s life. Furthermore, the Act emphasizes the importance of only allowing registered medical practitioners to perform abortions, as anyone else who does so will face punishment, including imprisonment for a minimum of 2 years and up to 7 years. Additionally, the owner of any facility that is not approved under Section 4 and allows abortions to take place will also face similar punishment.

The MTP Act also comprises additional provisions that define the powers and protections related to the implementation of the Act. Specifically, Sections 6, 7, and 8 of the Act confer powers to create rules and regulations, enabling the government to establish guidelines and standards for the termination of pregnancies. Furthermore, these sections provide protection to individuals who take actions in good faith, ensuring that they are not held liable for any unintended consequences arising from their actions. These provisions aim to provide a framework for the effective implementation of the Act, while also safeguarding the rights and interests of those involved.

Amendments to the MTP Act                                                           

The Medical Termination of Pregnancy (Amendment) Act, 2021 provides a significant up gradation to the original MTP Act of 1971. This recent amendment seeks to broaden access to safe and legal abortion services, strengthen women’s reproductive autonomy, and address certain shortcomings and concerns in the previous legislation. The changes introduced by this amendment aim to create a more comprehensive and supportive framework for women’s reproductive health, and some of the key revisions are mention below.

• The Amendment Act has extended the gestational limit for abortion, allowing women to seek an abortion up to 20 weeks with one doctor’s approval and beyond 20 weeks with two doctors’ approval in specific circumstances.
• In cases where a pregnancy termination or contraceptive method fails, both married and unmarried women have the right to terminate a pregnancy up to 20 weeks. This provision ensures that women have access to safe and legal abortion services, regardless of their marital status.
• The upper gestation limitation has been raised to 24 weeks for certain categories of women, includes rape survivors, incest victims, and other vulnerable women.
• The privacy and confidentiality of women seeking abortion are paramount. All records related to the abortion, including the woman’s identity, must be kept confidential and only shared with her consent, unless required by law. This ensures that women feel safe and protected when making this personal decision.

Sections dealing with provisions of miscarriage under Bhartiya Nayay Sanhita

Section 88: Causing Miscarriage: 

If someone intentionally causes a pregnant woman to miscarry, they can face serious consequences. This section says that if someone does this,

they can be punished with Up to 3 years in prison, a fine, or both, if the woman wasnot  close to giving births

Up to 7 years in prison, and a fine, if the woman was close to giving birth

 (i.e. quick with child).

The explanation also clarifies that if a woman induces her own miscarriage she falls under the scope of this section.

 Section 89: Causing miscarriage without woman’s consent:

As per this provision of the BNS, anyone who commits the offence defined in Section 88 without the woman’s consent. The punishment will be imprisonment for life or imprisonment that can be up to 10 years and a fine.

Section 90: Conditions where death is caused by an action intended to induce a miscarriage: 

If an individual does any act with an intention to cause the miscarriage of a woman with a child and results in the death of that woman.The punishment can be maximum 10 years of imprisonment and a fine.

It also states that if the act is done without a woman’s consent then the offender is punished either with imprisonment for life or with imprisonment that can be up to 10 years and a fine.

The explanation also clarifies that for this offence it is not necessary for the offender to be aware that their actions could result in death.

Section 91: Actions taken with the intention to prevent a child from being born alive or causing its death shortly after birth.: 

This section makes it a crime to intentionally cause a miscarriage or harm a child before or after birth, unless it’s necessary to save the mother’s life. The punishment can be maximum 10 years of imprisonment, a fine, or both.

Section 92: Causing death of an unborn child by actions that amounts to culpable homicide: 

This section of the law says that if someone does an act that would have been considered culpable homicide (a form of manslaughter) if it had caused the death of the pregnant woman, and that act causes the death of the unborn child, the offender is  punished  with maximum 10 years of imprisonment  and a fine.

Related Case Laws

X Vs. The Principal Secretary,Health and Family Welfare Department

In a landmark decision, the hon’ble Supreme Court addressed a significant issue concerning abortion rights and the framework surrounding them. The case revolved around a young woman, referred to as “X,” who sought permission to terminate her pregnancy at 24 week, exceeding  the legal limit of 20 week established by MTP Act.

The Court recognized the delicate balance between a woman’s right to make choices about her own body and the existing laws that govern abortion. In its judgment, the bench emphasized that a woman’s autonomy must be respected, particularly when her circumstances are dire—such as when the pregnancy poses a risk to her mental or physical health.

The bench  acknowledged that the 20-week limit for abortions can be overly restrictive in some cases, and they urged the need for a more compassionate approach in evaluating requests for terminations. Ultimately, the Court ruled in favor of “X,” allowing her to proceed with the abortion. Ultimately, the Court ruled in favor of “X,” allowing her to proceed with the abortion. This decision was not only a victory for her but also set a precedent that reinforces the importance of women’s rights and health.

This case also established that both married and unmarried women have the right to choose an abortion between 20 and 24 weeks, acknowledging the varied circumstances they may face.

CONCLUSION- EMPOWERING WOMAN ENSURING DIGNITY

The journey of abortion laws in India has been a long and winding one, marked by significant milestones and a growing recognition of women’s reproductive rights. The MTP ACT, along with relevant sections of BNS, provides a legal framework for safe and legalized access to abortion services. As we move forward, it is essential to recognize that the right to abortion is not just a medical issue, but a fundamental human right. It is a right that is deeply intertwined with a woman’s dignity, autonomy, and well-being. By empowering women to make informed decisions about their reproductive health, we are not only ensuring their physical and emotional well-being but also promoting a more equitable and just society.

REFERENCE  

1. Medical Termination of Pregnancy Act (MTP ACT):

             The Medical Termination of Pregnancy Act, NO. 34 OF 1971,INDIA CODE (1971).

2. Bhartiya Nayay Sanhita (BNS Act):

             The Bhartiya Nayay Sanhita , Act No.1 of 2023, INDIA CODE (2023)

3. Constitutional Provisions (Indian Constituiton):

              INDIA CONST.art.14.  .art.21.

4. Hindu Succession  Act,No. 30 of 1956,INDIA CODE (1956)
5. X v. Principal Secretary, Health & Family Welfare Dep’t, Govt. of NCT of Delhi & Another, (2022) SCC OnLine C. 1321 (India), https://nluwebsite.s3.ap-south-1.amazonaws.com/uploads/-x-vs-health-and-family-welfare-dept-5.pdf

6. Suchita Srivastava v. Chandigarh Administration, (2009) 14 C.C .244. https://privacylibrary.ccgnlud.org/case/suchita-srivastava-vs-chandigarh-administration