The Dilemma of Abortion in India - Moral and Legal Issues

By Kahinee Bhatt (Final Year Law Student at Institute of Law, Nirma University)

Abortion in any territory is engulfed by a whirlwind of issues – be it cultural, religious, legal, or moral or just simply as it ideally should be – medicinal. The concept of ‘abortion’ is multifaceted with various aspects to be taken into consideration, and to quote Petchesky "abortion is the fulcrum of a much broader ideological struggle in which the very meanings of the family, the state, motherhood and young women's sexuality are contested".

We cannot deny that abortion in India is put to an aggravated scrutiny of moralists, amalgamated with the age old malpractice of female foeticide. History, in many ways, has suggested that a woman has limited choices when it comes to her own body. The connotation behind her right to choice has over years become her right to choice with ‘*conditions applied’.

Indian laws governing abortion have been a case in point of how women’s right to make a decision comes with a conditions applied asterisk. The Medical Termination of Pregnancy Act, 1971 (“MTP”) states that it is at the sole discretion of a doctor, and not the woman, to choose to terminate a woman’s pregnancy. If the abortion needs to take place in the first trimester, only one doctor needs to sign off on the termination and the abortion needs to take place after twelve weeks of pregnancy, then two doctors need to sign off on such termination. Therefore, while termination of a pregnancy requires the mother’s consent, it eventually falls upon the doctor’s discretion to actually determine whether she can terminate her pregnancy – thus, a ‘*conditions applied’.

A legal abortion can be performed if prolonging the pregnancy poses risks to the life or physical or mental health of a woman, the foetus has any severe abnormalities, pregnancy occurrs as a result of failure of contraception (applicable to only married women) or if the pregnancy is a result of sexual assault or rape.

In any of these situations, termination can be performed only up to 20 weeks into the pregnancy. Although there are numerous cases where a woman only learns about risks after 20 weeks of pregnancy or in cases of sexual assault, a woman may only come to knowledge of her pregnancy after 20 weeks. This bar of 20 weeks has been put in place keeping in mind the prevalent malpractice of female foeticide – the ‘sex’ of a child can be identified only after 20 weeks of pregnancy. According to various medical institutions around the world ‘Chorionic Villus Sampling’ and amniocentesis testing can determine the sex of a child as early as 8 weeks. Sex identification in India is illegal and the prescribed 20-week bar works when certain individuals identifying the sex after 20 weeks and attempt to terminate the same based on gender.

In cases where termination of pregnancy post 20 weeks is required (only for the situations stated above), a court order/approval will be necessary. In a petition filed in the Bombay High Court, the petitioner sought the court’s permission for an abortion in the 23rd week, as the foetus was diagnosed with a congenital anomaly and could be born in a vegetative state. However, the foetus’ anomaly in no way hampered the mother’s life and the court ruled against the petitioner. This could have been a routine abortion if the anomaly had been diagnosed just three weeks before. The mother went through emotional and mental trauma and eventually underwent a miscarriage during the 27th week of the pregnancy. The ruling of this case may not have been in the her favour but it most certainly provoked thought leading to a review of the abortion laws.

In January 2020, the Cabinet approved certain commendable amendments to the MTP. The earlier legislation mandated approval of two doctors post the first trimester, however it has now been changed to just 1 doctor. If termination is required between 20 to 24 weeks, then it shall be review by 2 doctors and upon their discretion the termination may be decided. In case of a termination required after 24 weeks, the appropriate Medical Board would review the same, in case of substantial foetal abnormality. The most doting change however is the inclusion of unmarried women in its purview. Under the previous legislation, only married women were allowed to terminate pregnancy, however the new amendments now allow unmarried women to terminate pregnancy upon failure of contraceptives. The right of privacy has also been added and emphasised with the new amendments; the medical practitioner is allowed to reveal the identity of a pregnant woman seeking abortion only to a person authorised by law; violation of the same is punishable with fine and imprisonment.

Yes, these changes are certainly progressive in nature and India will now stand amongst nations with a highly progressive law which allows legal abortions on a broad range of therapeutic, humanitarian and social grounds. It is a milestone which will further empower women, especially those who are vulnerable and victims of rape.

However, there is still is a long way to go to remove the conditions applied asterisk, to this interpretation of abortion in India. Justice Chelameshwar in a privacy judgement stated that “a woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy”.

Deciphering this, we need to emphasise that what a woman wishes to do with her body should not be dictated by her husband, family, state or the law. Any moral dilemma arising out of her decision is her, and only her, concern and should be respected in accordance with medical probabilities of her health.

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