Abortion laws in India: What changes did 2021 Amendment bring

In a country as diverse as India, the conversation around abortion or medical termination of pregnancy isn't just about laws; it's a deeply personal and medical choice. India's abortion laws have evolved significantly over the years. The Medical Termination of Pregnancy (MTP) Act of 1971 was a crucial milestone, decriminalizing abortion in specific circumstances.

The recent 2021 amendment to this 1971 Act expanded access to safe and legal abortions, reflecting a commitment to comprehensive care allowing married women to terminate pregnancies up to 20 weeks with a single RMP's approval. Whereas termination of pregnancies between 20-24 weeks of gestation requires opinion of 2 RMP's. Now, what about medical termination beyond 24 weeks, is it allowed? Because at this stage, the status of the fetus is critical.

Let's delve into this blog to learn about the major changes the 2021 amendment brought, what are the circumstances under which abortion can be done, provisions etc. 

SC all-woman bench gives split verdict in medical termination of pregnancy case

In this unique case, two remarkable judges, Justices Hima Kohli and BV Nagarathna, made history by being part of the Supreme Court's fourth-ever all-woman bench. The case revolved around a married couple expecting their third child, but the pregnancy had gone past the legal 24-week limit for abortions according to the Medical Termination of Pregnancy Act of 1971. Justice Hima Kohli said in the verdict that she cannot allow the woman to have an abortion, while Justice B.V. Nagarathna upheld the order allowing the woman to undergo abortion. Given the divergent verdict of the two judges, the matter will now be placed before Chief Justice of India DY Chandrachud to set up a new appropriate bench to hear the matter.

The Centre has relied on an email sent by a medical board doctor who examined the woman deliberating that the unborn baby is fine and is expected to be born alive. If an abortion is done at this time, the baby may be harmed.

In another landmark case of Justice K.S. Puttaswamy (Retd.) vs. the Union Of India And Others (2017): While the Indian Constitution acknowledges women's constitutional right to make reproductive choices, it doesn't always mean the woman has the final say when seeking an abortion. The power balance can still be quite complex in reality, despite the legal framework supporting reproductive rights and privacy.

History of Medical Termination

Before 1971:

• Abortion laws in India were governed by the Indian Penal Code (IPC), which mostly treated abortions as criminal, except when performed to save a woman's life.
• No distinction was made between wanted and unwanted pregnancies, making it tough for women to access safe abortions.
• Under the IPC, causing a miscarriage was a crime punishable by up to seven years in prison.

The MTP Act of 1971:

• The Medical Termination of Pregnancy (MTP) Act was introduced as a "health," "humanitarian," and "eugenic" measure.
• It aimed to decriminalize abortion in specific circumstances and under medical supervision.
• Abortions were allowed up to 20 weeks, that is; with one doctor's opinion before 12 weeks and two doctors between 12 and 20 weeks.
• Legal grounds for abortion included risk to the woman's life, fetal abnormalities, saving the woman's life, or severe injury to her physical or mental health.
• The Act also permitted married women to terminate unwanted pregnancies with their consent, as long as they hadn't crossed 20 weeks of gestation.
• Medical professionals performing abortions under the MTP Act were exempt from prosecution.

1994 and the PCPNDT Act:

• In 1994, the Indian government introduced the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act.
• It aimed to prevent the misuse of the MTP Act for sex selection and prohibited prenatal diagnostic techniques for sex determination, particularly to prevent 'female foeticide.'
• The PCPNDT Act also regulates prenatal diagnostic techniques for detecting genetic abnormalities and other disorders.
• Violators of the PCPNDT Act could face up to five years in prison and monetary penalties.

Is abortion a Criminal Offence in India?

Voluntarily terminating a pregnancy is a criminal offence under the Indian Penal Code, 1860 (IPC). Under IPC, the sections related to abortion are:

1. Section 312: Causing miscarriage.
2. Section 313: Causing miscarriage without a woman's consent.
3. Section 314: Death caused by act done with intent to cause miscarriage.
4. Section 315: Act done with intent to prevent child being born alive or to cause it to die after birth.
5. Section 316: Causing death of a quick unborn child by an act amounting to culpable homicide.

The Medical Termination of Pregnancy Act of 1971 authorizes medical doctors (with specific specialization) to abort a pregnancy on certain grounds. In 1971, the Medical Termination of Pregnancy Act paved the way for safer abortions, yet the ultimate decision rested with the doctor. While legal battles recognized women's constitutional right to reproductive choices, they didn't fully shift the balance of power.

Then came the Medical Termination of Pregnancy (Amendment) Act 2021, broadening access to safe and legal abortions on various grounds. Now, any woman, whether married or unmarried, can terminate a pregnancy up to 20 weeks, offering a significant stride toward comprehensive care and women's autonomy. Termination is also permitted at any time during the pregnancy if it is necessary to save the life of the woman concerned.

Key points on the Medical Termination of Pregnancy Amendment Act, 2021

• Termination due to failure of contraceptive method or device: Under the Act, a pregnancy may be terminated up to 20 weeks by a married woman in the case of failure of contraceptive method or device. It permits unmarried women to also terminate a pregnancy for this reason.
• Opinion needed for termination of pregnancy:

1. Opinion of the State-level medical board is essential for a pregnancy to be terminated after 24 weeks in case of substantial foetal abnormalities.

2. Opinion of two RMPs for termination of pregnancy of 20-24 weeks of gestation.

3. Opinion of one Registered Medical Practitioner (RMP) for termination of pregnancy up to 20 weeks of gestation.

• Upper Gestation Limit for Special Categories: Increases the upper gestation limit from 20 to 24 weeks for special categories of women, including survivors of rape, victims of incest and other vulnerable women (differently abled women, minors, among others).

• Confidentiality: The “name and other particulars of a woman whose pregnancy has been terminated shall not be revealed”, except to a person authorised in any law that is currently in force.

Issues with Medical Termination of Pregnancy

• Differing Views: The abortion debate hinges on whether it's a woman's right or the state's duty to protect fetal life.
• Global Variation: Worldwide, countries have diverse rules based on fetal health and maternal risk.
• 24-Weeks Limit: Abortions past 24 weeks are allowed only for severe fetal abnormalities, leaving little recourse for late-stage cases, such as for rape victims.
• Specialist Requirement: The Act mandates gynecologists or obstetricians for abortions, but a 75% shortage of such doctors in rural areas poses challenges for safe access to abortion services.

Conclusion

In conclusion, the 2021 amendment to the Medical Termination of Pregnancy Act marks a significant milestone in India's journey toward more comprehensive and women-centric abortion laws. This change empowers women by expanding their access to safe and legal abortion services, regardless of marital status. However, the broader conversation surrounding reproductive rights, the role of healthcare providers, and the balance of power in making abortion decisions remains complex.

Competitive Exam Questions on Abortion Laws

Question 1: What is the legal framework that governs abortion in India before the 2021 amendment?

A) Abortion is completely illegal in India

B) The Medical Termination of Pregnancy Act, 1971

C) The Criminal Procedure Code

D) The Indian Penal Code

Question 2: Before the 2021 amendment, under the Medical Termination of Pregnancy Act, what was the maximum gestational age for a woman to seek an abortion?

A) 10 weeks

B) 20 weeks

C) 28 weeks

D) 32 weeks

Question 3: What significant change did the 2021 amendment to the Medical Termination of Pregnancy Act bring?

A) It completely banned abortion in India

B) It extended the gestational limit to 24 weeks

C) It allowed for abortion without any gestational limit

D) It introduced strict regulations making it harder for women to access abortion services.

Question 4: Under the 2021 amendment, what specific cases allow for an abortion beyond 24 weeks of gestation?

A) Cases of the woman's choice without any restriction

B) When a woman has been raped

C) When there is a substantial risk to the woman's life or serious fetal abnormalities

D) Only if the woman's family agrees to it.

Question 5: What is the minimum age for a woman to seek an abortion without the consent of anyone else under the 2021 amendment?

A) 18 years

B) 21 years

C) 25 years

D) There is no minimum age requirement.

Answers

1. B) The Medical Termination of Pregnancy Act, 1971

2. B) 20 weeks

3. B) It extended the gestational limit to 24 weeks

4. C) When there is a substantial risk to the woman's life or serious fetal abnormalities

5. D) There is no minimum age requirement