Abortion is among the few matters which have been inculcated in discussions among both national and international organisations. The whole saga revolves around the dilemma of whether the right to termination of pregnancy of a woman supersedes the right to life of an unborn foetus or child. The right to life has been recognised as a very crucial aspect of the Indian Constitution as per the provisions of Article 21.
Many argue that the right to abortion is in the ambit of the right to personal liberty hence being under the purview of right to life. This creates a conundrum between the mother's right to life versus the unborn child's right to life. Abortion or termination of pregnancy laws are very strict in India. However, not being completely legal and shaped out of choice, in certain scenarios abortion laws provide leverage to termination of pregnancy for unmarried and married women as well as rape victims.
The Concept of Abortion
In India, the term "Abortion" refers to the termination of a pregnancy by the mother within the time limit which is legally prescribed by the authorities and legislation. An abortion after such time limit prescribed for termination is known as foeticide. There are two safe ways for performing a medical termination of pregnancy, i.e., medical and surgical.
Laws governing Abortion in India
Abortion laws in India are governed majorly by Indian Penal Code, 1860 (IPC) and the Medical Termination of Pregnancy (MTP) Act, 1971. Although, IPC does not contain a direct provision concerning abortion law it deals with concept and offence of miscarriage in Section 312 to 316. According to the provisions, prompting a miscarriage, with no good faith regarding saving the life of the concerned mother, is a punishable offence with up to three years of punishment with or without a fine.
The MTP Act, moreover, deals with the legislation of termination of pregnancy. It encompasses the legality of termination of pregnancy till 12 weeks or first trimester, along with Britain approval given by a medical professional specialist. Furthermore, it encompasses that any abortion that has to be done between 12 to 20 weeks must have the approval of two medical professional specialists attached to it. Any abortion after 20 weeks can only be done with prior approval by appropriate court. Such an order is generally only provided to rape victims or in exceptional cases, hence, is not elective in nature. This extends to 7 years of punishment if miscarriage is caused in a pregnancy in which the motion can be felt by the mother. The concept of approval is a necessity in order to ensure that the process of abortion is in accordance with the legislation and involves proper steps.
As per the provisions of MTP Act, the time limit of abortion is up to 20 weeks (24 as under the 2021 amendment), which shall require approval of either one or two medical practitioner(s) approval. Beyond this limit, abortion is considered legal in India only if it is approved by an order of the court in exceptional cases. Pursuant to the MTP Act, abortion is permissible in the following circumstances:
If the mother's physical or mental health is jeopardised as a result of the pregnancy.
The foetus has a significant chance of physical or mental impairment.
Within the first trimester, a woman develops rubella (German measles).
Congenital abnormalities were present in any of a woman's previous offspring.
RH illness is present in the foetus or if the foetus is exposed to radiation.
Pregnancy is a consequence of rape.
A woman’s economic or social standing may hinder a healthy pregnancy.
Contraception didn't work, resulting in pregnancy.
When it comes to the legal age of the mother there is no such prescribed bar. Nonetheless, in the case of a mother who is below 18 years of age, a written consent of her guardian with specific cause shall be attached.
MTP Amendment of 2021
The Medical Termination of Pregnancy (Amendment) Act of 2021 has made numerous significant modifications to abortion regulations and in Section 3 and Section 5A, including:
Abortion limits have been raised from 20 to 24 weeks of pregnancy, but only for certain groups of pregnant women, such as rape or incest survivors. However, this requires the signature of two registered doctors for termination.
Pregnancies, regardless of category, up to 20 weeks can be aborted along with the clearance of one doctor.
Unwanted pregnancies induced by contraceptive failure can now be terminated regardless of a woman's marital status, which was previously limited to a "married lady and her husband."
In the event of foetal impairment, there is no upper gestational limit for abortion.
Legality of Abortion: Is there a Right to Abort?
A simple answer to the question of whether abortion is legal in India or not is - Yes. Abortions are sanctionable in the circumstance of 'therapeutic grounds', encompassing protection of life of the mother leading to a necessary abortion. However, it does not encompass a right to abort a child and is not selective in nature. Abortion in India is rather permitted under certain situations with a prior approval of a medical practitioner and strictly governed under the provisions of legislation.
Justice Chandrachud asserted in Puttaswamy vs. UOI that reproductive choice is personal liberty assured under Article 21 which, even after putting a robust jurisprudence on reproductive rights and privacy of a woman, does not convert into a fundamental change in power from doctor to the woman desiring an abortion.
Although there are such positive changes in the country's reproductive rights for women, abortion has indeed sparked heated moral, ethical, political, and legal disputes. Since abortion is a centre of a much greater ideological conflict in which the fundamental concepts of the family, state, motherhood, and women's sexuality are fought, rather than simply being a medico-technical matter.
While particular modifications like extending gestational limits and including unmarried women are commendable, the amendment still exposes women to a number of conditions, which in many circumstances pose a hindrance to safe abortion accessibility. With the overriding qualification of "grave injury to her physical or mental health" or "serious physical or mental abnormalities of the foetus," the woman's choice takes a backseat, necessitating legal affirmation at every step. As a result, abortion is still linked to state-sanctioned conditions rather than a woman's rights, which needs to be amended in order to bring values of personal liberty and choice.