The Ethical Dilemma of Abortion – Its Legality in India and Anti-Abortion Laws

By Subhashree Pattnaik, 3rd year student at Capital Law College, Bhubaneswar, Odisha.

Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or “spontaneous abortion’’.

The practice of abortion—the termination of a pregnancy—has been known since ancient times. Various methods have been used to attempt an abortion, including the administration of abortifacient herbs, the use of sharpened implements, the application of abdominal pressure, and other techniques.

Abortion laws and their enforcement have fluctuated through various eras. In many western countries during the 20th century, for example in 1929, the Infant Life Preservation Act was passed in the United Kingdom, which amended the law (Offences against the Person Act 1861 and South Africa allows abortion on demand under its Choice on Termination of Pregnancy Act and these movements were successful in having abortion bans repealed. While abortion remains legal in most of the West, this legality is regularly challenged by anti-abortion groups.

This article mainly focuses on the controversies around abortion, and religious, moral, and cultural factors that continue to influence abortion laws. 

INTRODUCTION:

Abortion was legalized in 1973, but the topic still remains controversial. The central philosophical question in the abortion debate concerns the moral status of the embryo and fetus. Killing human beingsis often deeply wrong, so is abortion wrong? If so, when? 

Abortion can be performed only under four conditions:

The idea of terminating your pregnancy is purely circumstantial. There are four situations under which a legal abortion is performed:
– In continuation of the pregnancy poses any risks to the life of the mother or her physical or mental health that is stress over being pregnant, changes in the body during the pregnancy. Some pregnant women may have depression or anxiety: Some women may have depression before getting pregnant.
– If the foetus has any severe abnormalities.

– If pregnancy occurred as a result of failure of contraception.
– If pregnancy is a result of sexual assault or rape

Termination of pregnancy of a length less than 20 weeks i.e. the gestation period of pregnancy will require the opinion of a registered medical practitioner and for a length 20-24 weeks, the opinion of two registered medical practitioner will be required.

If besides the provided condition an abortion occurs it will be termed illegal. It is solely at the discretion of the doctor that a woman may or may not undergo an abortion.

Before 1971, abortion was criminalized under Section 312 of the Indian Penal Code, 1860, describing it as intentionally “causing miscarriage”. Except in cases where abortion was carried out to save the life of the woman.

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ABORTION AND ETHICAL CONSIDERATIONS

There is a range of moral and ethical issues which may arise about unplanned pregnancy and abortion. A pregnant woman has the right to make her own decision about the pregnancy based on the unique circumstance concerning their personal values. For example, before becoming pregnant, some people feel that they would choose the abortion option without difficulty. However, even with reasons why having an abortion would be the best option, some people feel that this decision would not be right for them.. 

Women had conflicting feelings concerning abortion on grounds of foetal sex, and problematic issues of sexuality, especially for single women in relation to abortion, also arose. 

The judgment of the Bombay High Court from last year [2019] in which it was categorically stated that unless it is an extreme emergency that poses an immediate risk to the life of the pregnant woman, one has to take permission from the court for termination.”

The Medical Termination of Pregnancy Act, 1971

The Medical Termination of Pregnancy (MTP) Act, 1971 provides the legal framework for making Comprehensive Abortion Care (CAC) services available in India. Termination of pregnancy is permitted for a broad range of conditions up to 20 weeks of gestation as detailed below:

  • When continuation of pregnancy is a risk to the life of a pregnant woman or could cause grave injury to her physical or mental health;
  • When there is a substantial risk that the child, if born or dead would be seriously handicapped due to physical or mental abnormalities;
  • When pregnancy is caused due to rape (presumed to cause grave injury to the mental health of the woman);
  • When pregnancy is caused due to failure of contraceptives used by a married woman or her husband (presumed to constitute a grave injury to mental health of the woman).
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LEGALITY OF ABORTION IN INDIA

It is estimated that 15.6 million abortions take place in India every year by the last large-scale study on induced abortion in India which was conducted in 2002 as part of the Abortion Assessment Project. The studies as part of this project estimated 6.4 million abortions annually in India.

Abortion in India is legal and can be performed until 24 weeks pregnancy after MTP act amendment 2021 comes in force by notification in Gazette of India with notification of the formation of MTP amendment 2021 rules and regulations.

What changes does the Medical Termination of Pregnancy (Amendment) Bill, 2020 bring in?

India feels it is necessary to bring a change in the 1971 amendment law, the Medical Termination of Pregnancy Act, 1971 that raises the legally permissible limit for an abortion to 24 weeks from the current 20 weeks. Following the efforts of the Health Ministry, the change also accepts the failure of contraception as a valid reason for abortion not just in married but also in unmarried women.

The changes that the 2020 amendment bill brought in was:

  • It increases the maximum permissible gestation age for abortion to 24 weeks, with the proviso that for pregnancies that are between 20-24 weeks opinions will be required from two doctors rather than one. This has been specially done keeping in mind “vulnerable women including survivors of rape, victims of incest and other vulnerable women (like disabled women, Minors) etc.
  • According to a government statement: “The Medical Termination of Pregnancy (Amendment) Bill, 2020 is for expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds. It is a step towards the safety and well-being of the women and many women will be benefited from this.
  • The original draft of the Bill had included the contraceptive failure clause only for married women, which, the Health Ministry has now felt, would have left unmarried women, on whom social pressures to abort are more acute, at the mercy of quacks.

In landmark cases such as Suchita Srivastava v. Chandigarh  and Devika Biswas v. Union of India, the Supreme Court has held a woman’s reproductive autonomy to be her fundamental right to privacy and has said that the decision to have or not have a child should be hers alone, devoid of any state intervention but so far, there has not been any visible change in the MTP Act to give effect to these judgments. An amendment has been proposed that would increase the upper limit in applying for abortions to 24 weeks, but none of the provisions of the amendment Bill refers to granting autonomy or agency to women over their own bodies in terms of making their decision to abort.

Therefore, after estimation and analysis, it is the responsibility of the government that State actions should be limited to providing comprehensive and safe abortion care along with other sexual and reproductive healthcare. Beyond that, any intervention in matters of choice is not only against the principles of equality but also an infringement of the fundamental right to privacy of women.

ANTI- ABORTION LAWS

While abortions are legal at least under certain conditions in almost all countries, these conditions vary widely. According to a United Nations report with data gathered up to 2019, abortion is allowed in 98% of countries to save a woman’s life. Other commonly accepted reasons are preserving physical (72%) or mental health (69%), in cases of rape or incest (61%), and cases of foetal impairment (61%). Performing an abortion because of economic or social reasons is accepted in 37% of countries. Performing abortion based on a woman’s request is allowed in 34% of countries, including in the United States, Canada, most European countries and China.

Abortion laws vary considerably between countries and have changed over time. Such laws range from abortion is freely available on request, to regulation or restrictions of various kinds, to outright prohibition in all circumstances

Also according to the WHO, the number of abortions worldwide is declining due to increased access to contraception. Almost two-thirds of the world’s women currently reside in countries where abortion may be obtained on request for a broad range of social, economic, or personal reasons.

CONCLUSION

Abortion includes various social and financial issues. The MTP Act 2021 has made a lot of progress in abortion laws but still, the laws are needed to strengthen more. I would like to conclude my article by adding that a mother’s right is limited to have a termination of pregnancy. It is on the shoulders of the law to take care of the independence and freedom of the mother as well as the life of the unborn. The medical community and society need to offer love and support to women with unplanned pregnancies and to assist them in finding empathetic alternatives to abortion.

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