Still a long way for termination as an unconditional right 

News: Recently, the issue of abortion was in the news internationally. This brings into picture the legal status of abortions in India. 

Legal Status of abortion in India 

Under the Indian Penal Code (IPC), voluntarily causing (if not caused in a good faith) a woman to miscarry is an offence attracting a jail term of up to 3 years or fine or both. 

The Medical Termination of Pregnancy (MTP) Act 1971 was enacted to legalise access to abortion in certain circumstances. It provided exceptions to the IPC provisions.  

In case of abortion in certain circumstances, the permission to terminate the pregnancy was sought from the judiciary. In various case, the courts had ruled that the right of a pregnant woman to decide on the continuation of her pregnancy is a part of her right to health and right to life. Therefore, right is non-negotiable. 

Further, The Medical Termination of Pregnancy (MTP) Act 1971 was amended in 2021. It broadened the scope of the law.  

Circumstances in which medical termination of pregnancy is allowed after amendment 2021  

Grounds 

(1) If the continuation of the pregnancy involves a risk to the physical, mental health or life of the pregnant woman.  

(2) If the pregnancy is a result of rape or failure of contraceptive used to limit the number of children. The continuation of such a pregnancy can cause grave injury to the mental health of the pregnant woman.  

(3) If the continuation of the pregnancy can cause substantial risk to the infant child in the form of serious physical or mental abnormality. 

Different Scenarios 

The pregnancy can be terminated for any of the above reasons keeping into consideration the gestational age of the pregnancy. Further, the medical opinion of the medical practitioner registered under the MTP Act is also required. 

(1) Up to 20 weeks of gestational age, opinion of a single registered medical practitioner.  

(2) From 20 weeks up to 24 weeks, the opinion of two registered medical practitioners is required. This is applicable to women, either a survivor of sexual assault/rape or incest, minors, women with major physical disabilities, mentally-ill women, foetal malformation incompatible with life, change of marital status during the ongoing pregnancy, i.e., either widowhood or divorce, etc. 

(3) Beyond 24 weeks, the opinion of a Medical Board as set up in each State, as per the law, is required. The abortion can be permitted only on the ground of foetal abnormalities.  

(4) In exception to all that is stated above, the pregnancy can be terminated at any time by a single registered medical practitioner if necessary to save the life of the pregnant woman.  

What are some associated issues?

The law does not acknowledge the right of a pregnant person to decide on the discontinuation of a pregnancy. 

After the right to privacy judgment, it has been argued that the right of a pregnant person to continue a pregnancy or not has to be part of the right to privacy and the right to life. The amended law is not in sync with this judgment.  

The amended law is also not in sync with other central laws such as the laws on persons with disabilities, on mental health and on transgender persons, to name a few.  

The amendments did not removed ambiguity between the MTP Act and the Protection of Children from Sexual Offences (POCSO) Act or the Drugs and Cosmetics Act, to name a few.

Source: The post is based on an article “Still a long way for termination as an unconditional right” published in the “The Hindu” on 12th May 2022.