Abortion and Legal Scenario in India

Abortion and Legal Scenario in India

Introduction

Despite 30 years of liberal legislation, the majority of women in India still lack access to safe abortion care. This paper critically reviews the history of abortion law and policy in India after 1960s. Amendments in 2002 and 2003 to the 1971 Medical Termination of Pregnancy Act, including devolution of regulation of abortion services to the district level, punitive measures to deter provision of unsafe abortions, rationalisation of physical requirements for facilities to provide early abortion, and approval of medical abortion, have all aimed to expand safe services. Proposed amendments to the MTP Act to prevent sex-selective abortions would have been unethical and violated confidentiality, and were not taken forward.

The Indian Penal Code 1862 and the Code of Criminal Procedure 1898, made abortion a crime punishable for both the woman and the abortionist except to save the life of the woman. The term abortion refers to the deliberate medical termination of pregnancy in India, which can be done in two ways – medical and surgical.

  • Medical Abortion: A woman who is less than seven weeks pregnant can undergo a medical abortion. This process involves terminating a pregnancy with the help of pills and medications. It is a non-surgical method which one must do under the supervision of a physician.
  • Surgical Abortion: If a woman wishes to undergo an abortion beyond seven weeks of gestation, then it has to be done through surgical abortion. These are much more effective than a medical abortion, with a lower risk of an incomplete procedure.

Legality of Abortion

Abortion in India is legal under some circumstances and illegal. Acoording to the law, if the person getting an abortion is an adult, then you need no parental or spousal approval for it.

There is no legal age for abortion in India, however, the prescribed legal abortion weeks in India were up to twelve weeks but now The Union Cabinet chaired by Prime Minister Narendra Modi approved the Medical Termination of Pregnancy (Amendment) Bill, 2020 to extend the period to six months, making it easier for women to safely and legally terminate an unwanted pregnancy. [1] The only condition is, the woman has to seek permission from two doctors, including a government doctor, for the procedure. The amendment to the Medical Termination of Pregnancy (MTP) Act, 1971, will now be introduced in Parliament in the upcoming budget session.

Therefore, for a legal abortion, one can proceed with the procedure, along with the approval of two registered medical practitioners.

Is Abortion Legal in India for unmarried Girls?

The abortion laws in India for unmarried girls state that the legal age of abortion is 18 years. 

A woman who is unmarried and over 18 years of age can provide her own written consent to get an abortion. Legal age if below 18 years, then you must have written consent. This consent has to come from her guardian along with a specific reason for the abortion of pregnancy. [2] The amended law states abortion legal up to 6 months but if a woman is mentally unstable, then there must be a written consent from her guardian as per the MTP Act, 1971. In absence of any of these conditions will term the abortion illegal in under this Act.

Is Abortion Legal in India for Rape Victims?

Rape is one of the worst crimes against women. It not only harms women physically but impacts her mentally and emotionally as well. The crime of rape when leaves the victim pregnant, it becomes unbearable for her. Also, she might not feel the motherly instincts of raising the child with love.

Therefore, abortion is legal in India for rape victims. In such a Cace the rape victims can also file the petition directly before the High Court or Supreme Court for the termination of pregnancy and demanding a legal abortion – even if the pregnancy has lapsed 6 months of the legal abortion period.

In recent times, it has been observed that various petitions have been filed by the rape victims between 10-16 years of age. Even certain petitions have got an allowance from the court, where it did not harm the health or life of the pregnant women. But where the health or life of the pregnant women was at stake, the court does not allow for the abortion procedure.

If the act of ending the pregnancy is done in good faith [3] believing to protect the life of the pregnant woman, then even if there is no actual danger or threat, the act of abortion is legal in India.

When is abortion illegal in India?

Sections 312 to 316 of the Indian Penal Code 1860 state as to when abortion is illegal and punishable under the law.

Any person who voluntarily causes a woman with miscarriage will face punishment imprisoning up to 3 years and fine, especially, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman.

Under the law, abortion in India is illegal in two conditions:

  • When a woman is with child, the situation when the gestation period has commenced.
  • When a woman is quick with child, it means that the child’s motion is felt by the mother.

If child abortion in India happens with the woman who is quick with the child, then such a person will be punished with imprisonment of up to 7 years along with fine.

Even if a woman herself causes her miscarriage, then she will be held liable under the law. A woman who causes herself to miscarry also comes under this provision.

Earlier, women had to rely on informal channels for abortion, which are risky, and even led to death in some cases but now the law will help the rape victims, ill and under-age women to terminate the unwanted pregnancy lawfully.

References

  1. Pib.gov.in. 2020. Cabinet Approves The Medical Termination Of Pregnancy (Amendment) Bill, 2020. [online] Available at: <https://pib.gov.in/PressReleasePage.aspx?PRID=1600916> [Accessed 15 July 2020].
  2. 2020. [online] Available at: <https://www.myadvo.in/blog/is-abortion-legal-in-india> [Accessed 15 July 2020].
  3. Ibid

About the Author

Divik Gupta

Divik Gupta

Divik Gupta is a second year student at Symbiosis LAw School Noida. A Law enthusiast with experience in diverse fields. Passionate about writing and loves working for the society. Good at creative skills and problem solving . Society upliftment is his goal and persuing law to help and enhance the society as a whole. Passionate about singing and working for the people is his goal. He is also a Public speaker and fundraiser.

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