Abortion laws in India are contained in the Medical Termination of Pregnancy Act, 1971, and the provisions in relation to the procedure are governed by the Act. The Act has been widely requested to be amended owing to the changed medical and social circumstances, but the Amendment Act has been pending since 2014, while many aggrieved women have been forced to approach the courts to seek remedies that are not available in the written laws.
THE MEDICAL TERMINATION OF PREGNANCY ACT
The Act lays down situations where a pregnancy may be terminated, and the conditions to be met thereunder. Termination is permitted if the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health; or if there is a substantial risk that if the child is born, it would suffer from such physical or mental abnormalities, but categorization of the level of medical judgment required is done on the basis of gestation period completed:
- Up to 12 weeks – One Medical Practitioner
- 12-20 weeks – Atleast two Medical Practitioners
The anguish caused by a pregnancy arising from rape is regarded as a grave injury to the mental health; and similarly a pregnancy arising from the failure of protection or contraceptives in a married couple will be regarded as grave mental injury.
In case of minors or lunatics, the written consent of guardian is essential to terminate the pregnancy; but the specific requirements relating to the length of pregnancy do not apply where the Medical Practitioner has formed an opinion in good faith that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
THE AMENDMENT BILL OF 2014
The Amendment Bill that has been pending for the past 3 years purports to introduce certain changes in the provisions of the Act:
- To substitute “Registered Medical Practitioner” with “Registered Healthcare Provider’ in the long title of the Act.
- The ambit is widened to include Homeopathic practitioners, Unani, Sidhha, and Ayurveda; or nurse or auxiliary nurse midwife who possesses an authorized registration under their respective category.
- 3 pertaining to the conditions to terminate pregnancy to be modified in favor of women and their will; up to 12 weeks of gestation, MTP may be conducted upon request of the woman.
- MTP allowed upto 24 weeks instead of 20.
- 5A to be introduced, to protect privacy of the woman.
THE NEED OF THE HOUR
With the incidents of rape victims becoming pregnant, unwanted pregnancies and unprotected intercourse on the rise, it is expedient for the Govt to take up steps to ensure reproductive health of women. The data from the Sample Registration System (2001-03) under the Registrar General of India, unsafe abortions contribute to about 8% of the total abortions happening in the country. The reasons for this are multifold, with women attempting to gain some amount of autonomy in deciding whether or not they want the baby, and the law continuing with the shackles it has placed on the freedom to decide. Apart from affording women a rightful opportunity to decide on the same, the law also needs to consider rape victims and child sexual abuse victims, who may be left helpless after 20 weeks of pregnancy. The current scenario requires such aggrieved victims to approach the Courts of law to interpret the clauses in a wide manner so as to accommodate their anguish in the terms “grave injury to her physical and mental health”.
In May, the Rohtak Court had granted permission to a 10-year old child to terminate her 18-22 weeks old foetus; while a similar matter is currently under the consideration of the Supreme Court. (Refer News item posted on the same).
Relevant Case Laws (INDIAN KANOON)
- X and Ors. v. Union of India and Ors.
- Meera Santosh Pal v Union of India