by- Vidhi Krishnan;
Abortion from public standpoint has always been examined on the moral ground for being valid or not. When viewed from the legal perspective, in India, Article 21 grants right to life and personal liberty for every person which includes a woman as well as unborn child. However, the problem arises when we analyze whose right should be given precedence during the pregnancy of woman, Right of unborn or Liberty of woman of bodily autonomy.
The Abortion law in India is based on a needs based approach rather than a rights based approach and the Medical termination of Pregnancy Act, 1971 (hereinafter referred to as MTP Act) is the prime example of it. Section 3(b) of the MTP Act gives the Right to terminate the pregnancy of woman to a medical practitioner if he forms an opinion, in good faith that- “(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.” Here we can clearly see that no autonomy is given to the consent of the woman in who is carrying the unborn child in her womb, rather she is at the mercy of the Medical Practitioner who will give her the permission to abort the child, if he thinks fit. Therefore, this completely denies the liberty of women to take decision about her own body and about the life she’s carrying in herself.
Traditionally, the MTP Act was drafted to curb the cases of female feticide in the country and to reduce the population gap between male and female. However, this issue was covered with the enactment of Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT Act) which strictly punishes the persons involved in pre-natal diagnosis of sex of the fetus and its eventual abortion. There is no doubt that an overlap between the two acts exists but we also need to understand that the issue of Abortion and female feticide are distinct in nature and needs to be looked at from different standpoints.
In light of this and other major challenges posed to the MTP Act, on 25th March 2021, the Medical Termination of Pregnancy (Amendment) Act, 2021 got the presidential assent after having inculcated some major amendments in the Medical Termination of Pregnancy Act, 1971. These amendments and their critique is as follows:
These special cases include the categories of women that are rape survivors, victims of incest, minor, women with disability and other vulnerable women. This is no doubt a positive move and would decrease the burden of Courts up to a certain extent. However, this does not take into consideration, the fact that complications can arise at any stage of pregnancy and putting a limit on the termination will delay the process even further.
- Constitution of the Medical Board
The amendment also included that in cases of substantial foetal abnormalities diagnosed by the Medical Board the upper gestation limit shall not apply. There will be a single medical board in each state/UT and its astonishing to know that in a country like India where the people don’t even get the basic medical services at their perusal in the rural and underprivileged areas, the government is subjecting such vulnerable pregnant women to first go to these medical boards, which would surely be situated at far off places, and then get the approval to terminate their pregnancy. In a nutshell, it would make the whole process even more lengthy and burdensome for the woman who’s already suffering in her pregnancy because of which they might resort to illegal means of termination of their pregnancy.
- Name and particulars of the woman whose pregnancy is terminated shall not be revealed except to the person authorized by law
This amendment ensures that there would be secrecy in the process of abortion but an anomaly exists here as well. As per the existing law, a woman below 18 years of age cannot consent to abortion and her guardians are to be informed and their consent is required for such procedure to be conducted. In addition to this, as per section 375 of Indian Penal Code, a sexual intercourse with minor is considered a statutory rape and under section 19 and 21 of Protection of Children from Sexual Offences Act, 2012 (POCSO Act), a person who comes to the knowledge of the fact that a sexual offence is committed on a minor is bound to report to the police and failing to do so would result in imprisoned for up to six months and/or fine.
Therefore, in such a case the Doctor/Medical Practitioner is bound to disclose such information to the police or the parent/guardian of the minor. Therefore, teenage girls who don’t want to disclose such information to anyone other than the doctor would be hesitant to go through this procedure, as this procedure fails to provide them a safe space for termination of such unwanted pregnancy and is also a violation of their Right to privacy.
- The ground of failure of contraceptive has been extended to woman and her partner
This is a positive move by the legislature which recognizes the cases of unwanted pregnancy in a relationship of people who are/aren’t married. The Amendment Act, 2021 changed the word ‘husband’ to ‘partner’ which gives due recognition to the people who are not a married couple and grants them the ground to terminate the pregnancy in case of failure of contraceptives.
Conclusion
There is no doubt that the current abortion law in India is way forward in its approach in comparison to other countries of the world, there are still some challenges left for it to cover. The Medical Termination of Pregnancy (Amendment) Act, 2021 tries to overcome the anomalies present in the MTP Act but due consideration needs to be given to some areas of thought left unattended which include the choice of pregnant woman not given due recognition and a violation of Right to privacy of minor girls. However, with the speed with which the legal system is changing and taking a reformative turn, it surely isn’t a far off way when the legislature will inculcate the new changes in the law in the days to come.
Author:
Vidhi Krishnan, a Fourth Year student of B.A. LL.B. (Criminal Law Hons.) of Dr. Ram Manohar Lohiya National Law University, Lucknow.