INTRODUCTION:
As said by Betty Friedan
‘There shall be no freedom, no equality, no dignity for the woman unless she has control over her own body. Women and their rights to sexuality, fertility, and reproductive health are influenced by the patriarchal setup of society. ‘Abortion’ has always been a topic for debate as there are two views of people regarding the same i.e.,
- Ethical: Taking away a human life.
- Legal: Choice of women.
HISTORY:
During the British Era ‘Abortion’ was a ‘Criminal Act’ under the Indian Penal Code, 1860, and the Code of Criminal Procedure, 1898. It was considered an offense and whoever does so shall be punished. It includes both mother herself or any other person who does so with or without the consent of the mother. Section 313 to 316 of the IPC talks about ‘Abortion’ being a ‘criminal act’. It only allowed abortions if done in ‘good faith’. Around the 20th century, abortion was considered illegal in various countries of the world. But with the judgment of Roe v. Wade by the Supreme Court of the United States of America legalized abortion. The 14th Constitutional Amendment in the USA provides for the ‘Right to Privacy in the Due Process Clause. It further allowed women the ‘Right to Choose whether to undergo an abortion or not. However, in India, several unsafe abortions were leading to high maternal mortality and morbidity. Therefore, the Indian Government appointed Shah Committee, which was headed by Shantilal Shah. The committee and analyzed the socio-legal aspects of abortion and suggested legalizing abortion on medical grounds.
MEDICAL TERMINATION OF PREGNANCY ACT:
- The government laid down The Medical Termination of Pregnancy Act, 1971 that provides for—
- Time
- Place
- Circumstances
- in which pregnancy can be terminated.
- It allowed abortion if Pregnancy is the result of—
- Contraceptive Failure.
- Rape.
- Grave Physical Harm.
- Mental Harm.
- Substantial Risk to Fetus.
- It further allowed the termination of pregnancy till 20 weeks of gestation.
- It is obligatory to have the consent of the Guardian if the mother is minor or lunatic.
- The act was amended in 1975, 2002, 2005, and 2008.
PROBLEMS WITH THE MEDICAL TERMINATION OF PREGNANCY ACT:
It was required that if the pregnancy is in twelve to twenty weeks, then the opinion of a medical practitioner was necessary. In India, there are only about 25% of registered qualified doctors as indicated by Health Statistics of 2018-19. The lack of trained medical practitioner’s leads forces women to look out for alternative and unsafe measures for abortion.
Sections 3 and 4 of the at were challenged on the ground it does not include eventualities. Here, the fetus has a complete heart block in the 26th week of pregnancy. Thus, the woman was requesting to terminate the pregnancy. The court held that it was not empowered to decide upon the statute. It was further held that Relief under Section 5 shall be provided if the non-termination of pregnancy would threaten the life of the mother. Hence, the petition stands dismissed. The Calcutta High Court allowed abortion in the 25th week of pregnancy. The Supreme permitted a pregnant rape survivor of 24 weeks to undergo an abortion.
A homeless woman was pregnant and had HIV and came to know about the same after 17 weeks. She went to the hospital for an abortion but the same was denied to her, she filed a petition in High Court that was denied. Finally, Supreme Court denied her request too as she has exceeded the gestation limit mentioned under the law.
THE MEDICAL TERMINATION OF PREGNANCY ACT (AMENDMENT) 2021:
- It stated that termination of pregnancy that is less than 20 weeks would require the opinion of one medical practitioner.
- It further states that termination of pregnancy in 20 to 24 weeks shall require the opinion of two medical practitioners.
- If a fetus is detected later than 24 weeks then a medical board shall be constituted. It shall comprise a gynecologist, pediatrician, radiologist, and any other member who will diagnose and address the same.
CONCLUSION:
The majority still disapproves ‘Abortion’ and society raises moral objections against the same. It is viewed is deemed as negative. This notion mainly harms young girls or unmarried women to the extent that it may drive them to end their life. As stated by Justice D Y Chandrachud ‘An unmarried woman can also undergo abortion in 24 weeks with a par to a married woman. The Supreme Court further said that the pregnancy of a married woman can be treated as marital rape. Though family planning awareness is increasing the issues like abortion and reproductive health should be addressed. It was opposed as it is regarded as ‘taking one’s life even if the child is not yet born. However, it was also contended that during the first trimester the fetus cannot survive independently. It was also stated that early motherhood could hurt social, mental, and financial health. The woman should be given the liberty to decide what is good for her body and what is not.
