Study of Abortion Laws in India: An Overview
Author:- IESWARYA. N and S. Gowtham
Keywords:- abortion, prenatal, death, women, India, Sex-selection, miscarriage, termination, pregnancy, heath
Introduction
The word ‘abortion’ is derived from the Latin word “aboriri” which means to get detached from the proper site.[1] The term abortion means termination of pregnancy done before the birth of the child. In our country, some major acts deal with abortion including the Indian penal code, MTP act, pre-conception, and prenatal diagnostic technique (Regulation and Prevention of Misuse) Act, 2004. It contains provisions relating to abortion, to protect the life of women from an illegal abortion. Resulting in the death of many women or women conceived as a result of Rape who can abort the child by using the Medical Termination of Pregnancy Act 1971. It allows legal abortion upon certain conditions. Sex selection abortion is quite common in this male preference society to control such activity.
The pre-conception and prenatal diagnostic technique (Regulation and Prevention of Misuse) Act, 2004 came into force to prevent and punish sex screening and female foeticide.
The Indian Penal Code, 1860 also contains provisions relating to miscarriage and the punishment for the same. Women too have reproductive rights to have or not have children and it’s not only limited to that. But also have the right to access safe and legal abortion free from coercion or violation. Especially nowadays due to myths and preferences of male child domestic violence and cruelty against women are still in existence.
Constitution of India
Pregnancy is the thing which is the result of a consensual relationship burden must be shared by both partners. But it falls on women and affects their mental and physical health as per Article 21 of the constitution. The Constitution recognizes and protects the right of a woman to undergo termination of pregnancy if her mental as well as physical health is at stake. India allows legal abortion upon certain grounds that include married women. Although eliminates the addition of unmarried women’s right to abort is violative of Article 14 of the constitution. Recently the judgment passed by the court states unmarried women’s right to abort the child as similar as married women. This paper is about the laws that apply to women to get a legal abortion and their limitations.
Laws relating to Abortion Indian Penal Code, 1860
Indian Penal Code, 1860 provides for Sections 312 to 318 that deal with miscarriage and prescribe punishment for the same offense in a different manner or approach.
- Section 312 when the act of miscarriage is done not in good faith nor to save the life of a woman done by an illegal act or illegal means then punished with 3 year’s imprisonment or a fine or with both, a woman is quick with child (advance stage of pregnancy when the movement can be felt) shall be punished with imprisonment which may extend to seven years, and shall also be liable to fine.
- Section 313 this section says when such miscarriage is carried out without the consent of the woman done by family members or others without the consent of the mother shall be punished with life imprisonment may extend to 10 years imprisonment and is liable to a fine which is a cognizable and non-bailable offense.
Section 314
- It says death caused by the act done with intent to cause miscarriage shall be punished with 10 years imprisonment and a fine, done without the consent of the woman punished with imprisonment for life or with the above-mentioned punishment.
- Section 315 says any act done with intent to prevent the child from being born alive or to cause a child to die after birth, not in good faith shall be punished with 10 years imprisonment, or fine, or both.
- Section 316 by any act of husband or others which results in the death of a quick unborn child ( movement felt ) in the womb amounts to culpable homicide punished with 10 years imprisonment also with a fine.
- Section 317 punishes one who throws or abandons a child under twelve years of age and is punished with 7-year imprisonment and a fine.
- Section 318 which deals with concealment of birth by secret disposal of a dead body or engaging in exchange of a live baby with a dead baby or hiding a baby done by family members, doctors, or others shall be punished with 2 years of imprisonment or a fine or both.
Medical Termination of Pregnancy Act
The Medical Termination of Pregnancy Bill was drafted and introduced in the Rajya Sabha on 17 November 1969. On 2 August 1971, the MTP Bill was introduced in the Lok Sabha with the intent to “liberalize some of the restrictions under section 312 of the IPC.”[2] To protect women from illegal abortion and access to safe and legal abortion. Upon changing the scenario the amendment under the MTP act 2021 aims to increase access to safe and legal abortions to reduce maternal mortality and morbidity which extends the limit of abortion from twenty-four weeks previously which was limited to twenty weeks.
For Pregnancy of below 12 weeks duration, one medical officer can decide to perform an abortion. While it is between 12-20 weeks, two medical officers are required to terminate the pregnancy. However, if it is an emergency 12 weeks can be terminated even if only one doctor is available. Moreover, the termination must be carried out in hospitals established or maintained by the government. Also, the termination of pregnancy by not a registered medical practitioner is punishable with rigorous imprisonment of 2 years and extends to 7 years.
Section 3
Section 3 of the Medical Termination of Pregnancy Act, 1971 states the conditions for termination of pregnancy. As per section 3 of the MTP ACT, 1971 pregnancy may be terminated by the registered medical practitioner (RMP) it must be lawful, not violative under IPC, Period of termination must be between 12 weeks but not 20 weeks such termination should be decided by two doctors if there is the probability of child has poor physiological and mental health may be born as disabled. If the mother is under the age of 18 insane or unsound mind then the guardian or parents’ authorization is.
A woman’s bodily or mental health will be in great danger if the pregnancy is allowed to continue, However, not all women have the privilege of termination of pregnancy as a matter of right. As per Act 1971, only married women and rape victims are allowed to terminate their pregnancies. Unmarried women, widows, as well as divorced women, are deprived of their right to terminate their pregnancies. This results in women preferring illegal methods of abortion to mental trauma and social stigma.
MTP AMENDMENT ACT 2021.
The Act states only one registered medical practitioner can decide for terminating a pregnancy with a gestation period of 20 weeks rather than two ( as prescribed under section 3 of the MTP act 2021), added consultation of two or even more enrolled medical practitioners if a pregnancy is terminated between the 20 and 24 weeks. This act also aims to protect the confidentiality and privacy of women.
However, the act 2021 doesn’t make a distinction between married and unmarried women. But the recent judgment by justices Dr. Dhananjaya Y Chandrachud, A S BOPANNA; J.B. PARDIWALA; In the case of X vs. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr. (SLP (C) No 12612 of 2022)[3]. The apex court observed that all women in India have the right to choose and that unmarried women have the right to get an abortion under the Medical Termination of Pregnancy Act (MTP).
Rule 3 (B) of the MTP act listed which category of women seek abortion beyond 20 weeks as it should be interpreted that unmarried women included since such exclusion is violative of equality under article 14 of the constitution.No distinction will be made between married and unmarried women under the abortion law in India, said the apex court. For purposes of abortion, rape will include marital rape too.[4]
Pre- Conception and Pre-Natal Diagnostic Techniques Act
The Pre- Conception and Pre-Natal Diagnostic Techniques Act 1994 criminalizes and prohibits the communication of the sex of the fetus to the pregnant woman or her relatives by any form like words, signs, or any other method. It stipulates those techniques, like ultrasound and amniocentesis, are used only to detect.
Genetic abnormalities, metabolic disorders, chromosomal abnormalities, certain congenital malformations, hemoglobinopathies, and sex-linked disorders. Any advertisement in any form like notice, circular, media, or by any other means can be imprisoned for up to three years and fined. Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT), was amended in 2003 to The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition Of Sex Selection) Act (PCPNDT Act) to improve the regulation of the technology used in sex selection. This act also empowers boards for supervision and prescribes strict punishment. No genetic counseling or clinic shall conduct prenatal diagnostic techniques unless registered.
Female foeticide![]()
In our country, a girl child is worshiped as Devi on one hand and denied her existence on the other hand as she has no right to live. One such thing is Female foeticide or sex-selective abortion is the elimination or killing of the unborn female fetus. Within the womb of the mother, one can identify the sex of the fetus by methods like amniocentesis, Chiron, villus, biopsy, and popular ultrasonography. To control such thing the preconception and prenatal diagnostic technique (Regulation and Prevention of misuse) Act, 2004 came into force. It brought ultrasound and amniocentesis under its ambit.
In the case of Centre for inquiry into Health and Allied Themes (CEHAT) V. The Supreme Court in this case directed the state government to take further steps to enforce the law and secretary. The court directed to seal and seize ultrasound machines that were used without proper registration.[5]
International perspective
Article 51 of the Constitution requires the state to foster respect for international law and treaty obligations in the dealings of organized people with one another. Article 6 of the International Covenant on Civil and Political Rights recognizes and protects the inherent right to life of all human beings. Also, the UN Human Rights Committee has remarked that, in terms of Article 6, State Parties have the responsibility to provide safe, legal, and effective access to abortion.[6]
The Committee on Economic, Social, and Cultural Rights in their comment on Article 12 of ICESCR. It has observed that the right to sexual and reproductive health is an integral part of the right to the highest attainable physical and mental health.[7]
Article 12 of CEDAW requires the State Parties to take appropriate measures to eliminate discrimination against women. In the field of health care services in connection with family planning, pregnancy, confinement, and the post-natal period. Similarly, Article 16 urges State Parties to eliminate all forms of discrimination against women. Ensuring that they have the same right to decide freely and responsibly on the number and spacing of children. Also to access the relevant information to effectively exercise these rights.
Judicial approach towards abortion
In Z v. State of Bihar[8] a woman approached the court to terminate their pregnancy as a victim of rape. The court found that the state authorities, including Patna Medical College and Hospital. Had erred in failing to terminate the pregnancy before the passage of twenty weeks shows the negligence of the authorities. Also, it noted that the proceedings in the High Court were unduly delayed. Leading to a situation where the pregnancy could not be terminated without endangering the life of the woman in question. Compensation was awarded to the petitioner (i.e., the pregnant woman).
Surendra Chauhan v. State of Madhya Pradesh[9], As per facts the accused had an illicit relationship with the deceased unmarried woman as a result of the relationship. She got pregnant, they approached Clinic (a doctor who is co-accused, not RMP or clinic is approved by the government) to terminate pregnancy around 3 months. During the procedure the women passed away. The court two judges upheld the Madhya Pradesh High Court’s order to convict the accused under Section 314. Read with Section 34 of the IPC for causing a woman’s death by miscarriage. This case is illustrative of the dangers of unsafe abortions, undertaken due to the social stigma surrounding pregnancies among unmarried women.
Conclusion
There is an immense need to have stringent laws on abortion that prescribe heavy punishment for wrongdoers. Recent judgments are steps forward to protect the rights of women. No distinction will be made between married as well as unmarried women under the abortion law in India. Although the Indian judiciary has welcomed post-33-week abortions among females stating mother’s choice is Ultimate. The absence of a manner that places women’s choices at the center and a robust law. That lays down detailed procedures for abortions can be felt heavily. Legislation that respects women’s reproductive choices needs to be framed in independent India.
Footnotes
1. Textbook of forensic medicine and toxicology, 19th edition, V V Pillay
2. Lok Sabha Debates, Fifth Series, Vol. VII, No. 53 (2 August 1972), on page 159
3. https://indiankanoon.org/doc/134729746/
4. https://www.livelaw.in/top-stories/all-women-entitled-to-safe-legal-abortion-distinction-between-married-unmarried-women-unconstitutional-supreme-court-210548
5. https://indiankanoon.org/doc/910275/
6. Human Rights Committee, General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, CCPR/C/GC/36 (30 October 2018)
7. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 24: Article 12 of the Convention (Women and Health), A/54/38/Rev.1, chap. I (1999)
8. (2018) 11 SCC 572
9. (2000) 4 SCC 110
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