Abortion Laws in India A socio-legal perspective - PowerPoint Presentation

1. Abortion Laws in IndiaA socio-legal perspectiveMade By:- Gayatri Agarwal1

2. Definition According to Merrium-Webster:-the termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or foetus According to MedlinePlus:-An abortion is a procedure to end a pregnancy. It uses medicine or surgery to remove the embryo or foetus and placenta from the uterus. The procedure is done by a licensed health care professional.2

3. Historical SignificanceAbortion, even was widely practice unsafely, was illegal in India till 1971, when the Medical Termination of Pregnancy (MTP) Act was passed.The Act provides for the termination of certain pregnancies by registered medical practitioners. Before the Act, Section 312 of the Indian Penal Code, 1860, strictly criminalises the act of abortion and was a criminal punishment with imprisonment up to 3 years and/or fine. Shantilal Shah Committee carried out a review of multi aspects abortion and passed the MTP Act. This legalised medical termination of pregnancies. 3

4. Medical Termination of Pregnancy ActThe Act to some extend has helped in destigmatizing the concept of abortion. Termination of Pregnancy:- Under the act, a pregnancy may be terminated within 12 weeks, with the approval of one medical practitioner. For termination of pregnancies between 12 to 20 weeks, approval of two medical practitioners is required. 4

5. After the AmendmentThe Medical Termination of Pregnancy (Amendment) Bill, 2020, amended this provision and stated that a pregnancy may be terminated within 20 weeks, with the approval of a medical practitioner. And, for termination of pregnancies between 20 to 24 weeks, approval of two medical practitioners is required. The MTP Act specifically mentions that if any pregnancy occurs as a result of failure of any method used by a married woman or her husband to limit the number of children, such an unwanted pregnancy may constitute a grave injury to the mental health of the pregnant woman.  The Bill amends this provision to replace ‘married woman or her husband’ with ‘woman or her partner’.  5

6. Conditions of abortionThe termination of pregnancy can only be conducted under specific conditions:-If the pregnancy poses a great threat to life of the pregnant women or it causes grave physical or mental illness. Substantial risk that if the child is born, would seriously suffer from physical and/or mental disability. If pregnancy is a result of sexual assault or rape.If the pregnancy occurred due to failure of contraceptive.Consent requirement:-No pregnancy shall be terminated except with the consent of pregnant woman.If the pregnant woman is a minor or is a mentally ill person, then written consent of her legal guardian is required. 6

7. Who can conduct abortionRegistered Medical Practitioner with recognized medical qualification in clause (b) section 2 of the Indian Medical Council Act, 1956.Medical Practitioner registered in any state medical register.Has trained experience as per the Medical Termination of Pregnancy Rules, 2003.7

8. MTP Rules for Medical PractitionerFor medical Practitioner to perform abortion, in case of 12 weeks of gestation experience of at least 1 year in Gynecology & obstetrics. experience of at least 6 months of house Surgency in Gynecology & Obstetrics.Assisted a registered medical practitioner in 25 cases of medical termination of pregnancy. Out of which, at least, 5 cases were performed independently. For medical Practitioner to perform abortion, in case of 24 weeks of gestation PG degree or Diploma in Gynecology & Obstetrics. Completed 6 months of house staff ship in Gynecology & Obstetrics. At least 1 year of practice in Gynecology & Obstetrics at ant government hospital.8

9. Punishment of Illegal abortionSection 312 to 316 of Indian Penal Code provides that if any person performs illegal abortion, that person is subjected to:Imprisonment for 3 years and/or fine;If the pregnant woman was quick with the child, then the imprisonment for 7 years and fine.9

10. Safeguards from Unwanted AbortionIPC has defined some laws which safeguards women from unwanted pregnancy and gives them justice. Section 313 of IPC states, Whoever commits the offence of termination of pregnancy without the consent of the woman, whether the woman is quick with child or not, shall be punished with: imprisonment for life and shall also be liable to fine, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.10

11. Section 314 of IPC states Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with:imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;If the act is done without the consent of the women, then the punishment shall be:either imprisonment for life; orPunishment mentioned above.11

12. Section 315 of IPC states that Whoever does any act that results in termination of pregnancy before the birth of any child with the intention of preventing that child from being born alive or causing it to die after its birth, and if such act be not caused in good faith for the purpose of saving the life of the mother, shall be punished with: imprisonment of either description for a term which may extend to ten years, or with fine; or with both.12

13. Socialistic view of abortionAbortion is a hotly debated and taboo issue in India, and it two extreme sides to this debate, not just in India but globally as well, and that is, pro-choice vs pro-life. Pro-Choice Lobby People who believe in the concept that the women have the freedom of choice regarding whether to abort or not, are labelled as Pro-choice. According to them, personhood or an identity of a person begins at birth not at conception. They stand for women’s right to bodily freedom and freedom of reproductive choice.To allow legal abortions, it would be more medically safe, as compared to illegal abortions, and would lead to less psychological traumatic experiences as well. Abortion allows aborting abnormal foetuses and to some extend, abortion has been considered as a justified means to control the population.13

14. Pro-Life LobbyPeople who believe that the foetus has the right to live are labelled as Pro-lifer.According to them, personhood starts at the conception only, and aborting the foetus would be an act of murder.They justify the act of not aborting as it not being a method of contraception. Putting the child for Adoption instead of aborting the child, is suggested by the pro-lifers.They believe the act of abortion is going against the God wishes. They also believe aborting abnormal foetuses is discriminatory in nature.They also hold mothers or the pregnant women responsible for the pregnancy.14

15. Prevailing problemsRight to ChooseThe Act has been challenged many times on the grounds that the ultimate decision should not lie with anyone other than the pregnant women. According to the Act, it is the sole discretion of the doctor to decide whether a woman can abort or not. Furthermore, it provides for requirement of opinion and approval of two doctors if the pregnancy exceeds the 20 weeks mark. Not in consistent with the updated technologyThe act put a bar of 20 weeks earlier to reduce the cases of female feticides, an act where ultrasound technology is used to find the sex of the fetus and abort it if it’s a girl. However, now the technology has advanced that the sex of the fetus can be determined much earlier and the time limit on abortion has just deprived women from their right to choose. 15

16. Recognition only to medical riskThe law only recognizes medical risks as a ground for abortion, dismissing all the other reasons for a woman to abort. Non-medical concerns or reasons for aborting such as economical situation of the pregnant women, effect on career decision, and any other personal reason, are not considered or looked over by the law.By putting a bar of 24 weeks, the law forces the women to continue with the pregnancy unless it poses a threat to life, even if the fetus has the risk of physical or mental disability. Looming second opinionBy emphasizing and mandating the need of second opinion or approval of two doctors for termination of pregnancy after 20 weeks, has resulted in restrictions in abortion especially in rural areas. This ultimately led to unwanted continuation of pregnancy and an infringement of women’s right. 16