Abortion laws in India

Abortion laws in India

Introduction

An abortion is the end of pregnancy by the expulsion of the fetus before it can survive outside the uterus. An abortion that occurs without intervention is known as a miscarriage or spontaneous abortion. When deliberate steps are taken to terminate a pregnancy, it is called an induced abortion. There can be many reasons for induced abortion, mainly in the woman’s mental or physical condition.
Abortion in India is legal in certain instances only. It can be executed on various grounds until 20 weeks of pregnancy. In exceptional cases, a court can allow medical termination of pregnancy after 20 weeks.
Before 1971, abortion was criminalized under section 312, of the Indian penal code, 1860. Labelling it as purposely causing miscarriage. Aside from in situations where premature birth was done to spare the life of the lady, it was a culpable offence and condemned ladies, with whoever intentionally made a lady with a kid lose confronting three years in jail as well as a fine, and the lady benefiting of the service is confronting seven years in jail or potentially a fine.

Brief overview

The Medical Termination of Pregnancy Act 1971 and Regulations 1975 provides full protection to a registered medical practitioner only if the abortion was done in good faith and to save the life of the women. This act allows any unwanted pregnancy to be terminated which is under or up to twenty weeks. The provisions include grave risk to the mother both physically and mentally or when the pregnancy happens because of serious sex crimes such as rape etc. only in these cases, the court has to grant an order, and then the termination of pregnancy can be conducted. This allows any hospital-owned, funded, or maintained by the government but in the private sector, proper certification and approval from the government are required.
The Medical Termination of Pregnancy Rules and Regulations 1975, define the criteria and procedures for authorization of an abortion facility, procedures for agreement, keeping records and reports, and ensuring discretion. Any termination of pregnancy done at a hospital or other facility without prior approval of the Government is deemed illegal and the responsibility is on the hospital to obtain prior approval.
The initial years from 1972 to 1986 after the legalization of abortion showed only a marginal increase (8-10%) in the number of official abortion facilities and the number of abortions reported by those facilities. In contrast, the late 1980s and 90s showed a declining trend in the number of abortions reported in approved facilities.
In the early 2000s, the government to make the procedure and approval for abortion easily introduced the Medical Termination of Pregnancy (Amendment) Act 2002 and amended Rules and Regulations 2003 after consulting with many governmental and non-governmental bodies. One of the steps taken was to decentralize the procedure for abortion clinics from state-level approvals to district level approvals.
In the act of Prohibition of abortion act, 1971, the Supreme Court in a case held that abortion cannot be granted beyond 20 weeks limitation where the continuation of the pregnancy does not pose any grave risk to the physical and mental health of the woman.
Furthermore, the IPC acknowledges that the embryo is entitled to legal protection, and protection of the unborn child’s right to life even provides punishment to the woman for causing miscarriage to the child.
It is the state’s responsibility to work for the preservation of any and every life and this effectively includes a human organism that has not been born but lives within the womb of the mother. Article 21 guarantees that no one can be deprived of his life or personal liberty except for the procedure established by the law. The Madras high court in Queen Empress Vs Ademnia, noted that lexically and logically an unborn child is a person having a life, which would mean that the state under article 21 has to protect it. The life of each human being begins at conception and the unborn children have a protectable interest in life, health, and well-being. Denial of the right to life to human beings in utero is discriminatory based on age, size, ability, location, or dependency which violates article 21 of the constitution.
There exist several legislations that recognize the fetus as a legal person. The Code of Criminal Procedure, 1973 mandates the postponement of the capital sentences on a pregnant woman thereby indirectly recognizing the right to life of a fetus. It is hence submitted that a fetus is a legal person entitled with the right to life.

Conclusion

To conclude with the article, there are some suggestions which can be implemented. There is a high time the abortion laws are liberalized and made it easier for women in the county to get an abortion. Also, there should be stricter rules and laws to be implemented for those who are merely abusing the act for their benefit like sex determination of the fetus. In the legislation, there should be at least some women whose opinions are taken into consideration because they are the ones who go through the process of abortion. Thus, these are the requirements that are truly required to be implemented for a better future.

References

  • “India rape victim, 13, allowed to abort”. BBC News. 6 September 2017.
  • “Abortion law: In 24-week pregnancy case, the Supreme Court failed to address women’s right to their bodies – First post”. Www.firstpost.com. Retrieved 20 June 2018.
  • “The Indian Penal Code 1860”.
  • Government of India. The Medical Termination of Pregnancy Act [Act No. 34, 1971]. New Delhi: Ministry of Health and Family Planning, 1971.
  • Government of India. The Medical Termination of Pregnancy Rules and Regulations. Vide GSR 2543, New Delhi: Gazette of India, 1975.
  • Government of India. The Medical Termination of Pregnancy Act [Act No. 34, 1971]. New Delhi: Ministry of Health and Family Planning, 1971.
  • Z vs The State of Bihar and Ors 2017(9) SC ALE 85.
  • See Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others, AIR 1981SC 746.
  • Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
  • See William L. Webster et al V. reproductive health services at el, 492 U.S. 490.
  • Also, see A.24 &A.26 of ICCPR.
  • S.13&20, Transfer of Property Act, 1882, S.2 (bc), the Pre-Conception and Pre-Natal Diagnostic Techniques
  • (Prohibition of Sex Selection) Act, 1994, Explanation II, §s 6 of the Limitation Act, 1963.
  • S.416, The code of Criminal Procedure 1973; See also A.6.5 ICCPR.

About the Author

Aliasgar Challawala

Aliasgar Challawala

A second year law student studying in NMIMS KPMSOL MUMBAI pursuing the course of BBA LLB with keen interest in international law, arbitration and corporate laws.

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