Author : Joyita Ghosh, Student at KIIT School of Law
ABSTRACT
Despite the liberal legislation, women have been struggling to get their fundamental rights and now, they are lacking not only access to safe abortion acre but also the reproduction rights. Despite the legislation for abortion, mortality continued to be a bigger problem in a women’s life, not only due to lack of information but also many urban and political issues. This paper discusses the origin of abortion in India since the 1960s and dives deeper into research on various types and consequences and other questions which are needed to be put out. This paper also puts forth the Medical Termination of Pregnancy(MTP) Act and the amendments in 2002, 2003, provisions and recent modifications. This act was introduced thinking in mind the women’s rights as well as political matters. This act has successfully prevented the wastage of women’s life and sex-selection abortions and had provided information to the public of safe accessible health care. This act has also helped the medical professionals for illegally being sued. This article also highlights the need flaws and the answers to a few pressing questions which often gets ignored and measures needed to improve the women’s access to safe abortion care.
Keywords : MTP, IPC, Abortion, Maternal Mortality, Termination, Reproductive Rights.
INTRODUCTION
Abortion means the annihilation of pregnancy by an unplanned or induced procedure before the foetus is developed sufficiently to sustain on his own. It implies, termination of a pregnancy with a nonviable foetus, i.e. not with a living infant. Around 205 million pregnancies occur worldwide every year. Most abortions or miscarriages are the result of unwanted pregnancies.
INDUCED AND SPONTANEOUS ABORTIONS
Spontaneous abortion is the manner of abortion which begins automatically with no external intervention[1]. Medically, it is termed as miscarriage which can occur due to multiple reasons like hypertension, mishap, trauma, injury and so on and frequently lies past the prevention controls of individuals. Spontaneous abortion can occur in roughly 30-5% of pregnancies. Induced abortion is when the process of abortion occurs with the assistance of the external intervention, or it can be better termed as intentional termination of pregnancy.
The word abortion directly or indirectly point out to an induced abortion. At the point when done appropriately, it is perhaps the most secure strategy but an unsafe abortion is the main reason for maternal mortality, specifically in evolving countries. It is even more secure than childbirth or labour which is 14 times more life-threatening in the US[2].
Unsafe abortion as termed by WHO (World Health Organization) is “a procedure for termination of a pregnancy done by an individual who does not have the necessary training or in an environment not conforming to minimal medical standards[3].” Approximately 56 million abortions are being executed every year worldwide, from which 45% ended hazardously[4].
Rate of Abortion has diminished noticeably with time as they have been given proper access to knowledge of family planning and usage of birth control.
WAYS TO ATTAINING ABORTION
In ancient days, abortions were aimed by consuming herbal medications, sharp tools, forceful massage, or done by other customary techniques. It has extensively developed and numerous secure options were made accessible for the women.
Nowadays, it can be performed surgically, by Manual Vacuum Aspiration (MVA), which consist of eliminating the foetus, placenta and membranes by suction using a suction pump.
Another way is Dilation and Evacuation (D&E) which involves opening of the cervix and evacuating the uterus with operating tools and suction.
Medical abortions are another method which is introduced by abortification pharmaceuticals. A 2020 Cochrane Systematic Review concluded that providing women with medications to take home to complete the second stage of the procedure for an early medical abortion results in an effective abortion[5]. It can also be done through by first inducing labour and then inducing foetal death if necessary. It is also called an induced miscarriage.
CONSEQUENCES.
Side effects can take place with induced abortion, either surgically or by taking a pill.
Physically
- It can cause abdominal pain, cramping, nausea, vomiting and diarrhoeas.
- It carries the threat of infection, damage to organs, scarring of the uterine lining.
- It can lead to death
- It can cause abortion or preterm birth for future pregnancies
- Can also link to breast cancer
Emotionally
- It can associate with the deterioration of mental health and can cause post-traumatic stress disorder.
- Can cause relationship problems, depression, guilt
- Can cause suicidal thoughts, flashbacks of the abortion
- Can cause sexual dysfunction
- Can lead to substance abuse and spiritual consequences.
ABORTION LAW IN INDIA
v Prior to 1971, Abortion was viewed as unlawful, or more precisely was criminalized under the sections 312 to 316 of the Indian Penal Code, 1860, depicting it as causing miscarriage except in the situations where it is done just to protect the life of a woman, and will be punishable whoever voluntarily causes the miscarriage, for 3 years in prison or be fined and if it’s a woman, 7 years of confinement or fine[6]. When the abortion rate along with maternal mortality started to increase when abortion was made lawful in India, the government of India instated a committee in 1964 as Shah committee led by Shantilal Shah.
Recommendations by shah committee:
They accumulated a wide-ranging evaluation of the socio-cultural, legal, and medical aspects of abortions. They suggested permitting abortion to avoid wastage of women’s health and lives on the basis of both humane and clinical grounds.
Legal Response to Abortion in India
The recommendations were acknowledged in 1970 and presented in the Parliament as the Medical Termination of Pregnancy( MTP) Bill. The abortion was made permissible in
1971 and the bill were approved in August 1971 as The Medical Termination Of Pregnancy Act and this act was enforced on 01 April 1972 and once amended in 1975.
The Medical Termination of Pregnancy Act(MTP)
To avoid the exploitation of the induced abortions and to decline the maternal mortality due to unsafe abortion, every nation has its stern methods in abortion laws and so has India.
However, with the introduction of the MTP Act, the penal provisions were not annulled.
The law on miscarriage and the punishments continue as before.
The Medical Termination Of Pregnancy Act, 1971, (the MTP Act) determines abortion as permissible when the foetus is less than 20-weeks old if a licensed physician terminates the pregnancy under the following circumstances:
- Prolonged pregnancy poses a danger to the life expectancy of a pregnant woman or might potentially be a reason for severe damage to her bodily or emotional health
- There is a large threat that, if born, the baby might remain severely disabled due to bodily/psychological abnormalities. Although, when the pregnancy surpasses 12 weeks but less than 20 weeks, the consultation of two registered medical consultants is obligatory.
- Pregnancy began due to rape (presumably causing serious damage to the woman’s mental health)
- Pregnancy caused because of the failure of contraceptives used by a married woman or her spouse (presumably causing serious damage to the women’s mental health)
This act states the circumstances for termination of the pregnancy, the persons capable to conduct the abortion and the place of operation.
Who can terminate a pregnancy?
MTP Act permits to terminate pregnancy only by a registered medical practitioner who:
- Has a recognised medical qualification under the Indian Medical Council Act[7] (IMC)
- Whose name is entered in the state medical register
- Has such knowledge or training in gynaecology and obstetrics as per the MTP rules.
Consent of the following types is required before a licenced physician can perform a legal abortion on a pregnant female:
- If one is married— written consent from her is enough. The approval from the Husband is not required.
- If single and beyond 18 years –written consent given by her is enough.
- If one is less than 18 years —written consent required from her custodian.
- If mentally unstable — written consent from her guardian.
Is attaining abortion be considered as murdering the foetus?
If we look at it in an emotionally, then we would be feeling like we might have murdered something which would have eventually grow up to be a person, so it can make one feel like they have murdered someone.
If we look at it from a very legal manner, to murder someone we need two factors:
- The one we are killing to be considered as a human being
- The killing must be justified
The foetus can’t be considered to be a living human being because it depends on its mother’s body for survival and development., All nutrients and oxygen is being. In India, only after birth, we can say that it’s a fully functional independent human being and The rights are provided to the child. Most countries have made this legal and that women should have the right to reproduction.
Why India’s law on abortion doesn’t use the word abortion?
In MTP act 1971, the lawmakers picked the phrase ‘medical termination of pregnancy’ over the recognised term ‘abortions’. It was aimed at ensuring abortion laws in India aren’t framed as granting women a choice or a right to go through safe abortions but as measures to protect specialists against trial for conducting abortions.
Reproductive rights in Indian courts
In recent decades, the court has for the first time acknowledged for the first time reproductive rights as fundamental to women’s equality and has called for women’s rights to autonomy and choice of pregnancy. The courts have acknowledged women’s rights to remedies for infringement of such – for example, considering maternal health as a right. But the focus on abortion had less to do with women’s rights and more to do with issues like family planning and possible criminal cases against clinical experts. They viewed abortion as more of public health issues.
It is contradictory to the Shah committee’s proposition of protection of women, while the MTP Act has few protections for women and more assurance to the practitioners. Section 3 of the MTP Act additionally states about the decisions of undergoing medical termination merely on doctor’s estimation, which points its figure towards the absence of autonomy for women. Although this Act is making abortion lawful, it has bonded the women in a definite way, to the estimations of the doctors. Rather than giving women the rights to choose and access safe abortions, this provision strips them off the agency over their bodies[8].
India’s abortion law is disappointing the women who need it the most. MTP Act is obsolete and ambiguous when it comes to rape victims. A minor rape victim had to forcibly give birth to her rapist’s offspring after the Madras High Court denied her abortion demand under the Act of MTP,1971. It was 19-weeks when the rape victim was first tested by the practitioner, although it was legitimate under the law, the practitioner refused to perform the termination. When her petition was finally heard, the pregnancy had already surpassed the 20-week limit past which abortion is forbidden by the Medical Termination of Pregnancy Act9. This case was featured in a 28th September report composed by attorneys Anubha Rastogi and Raunaq Chandrashekhar of “Pratigya”, a New Delhi-based NGO attempting to elevate the women’s rights to safe abortion in India.
Problems in the act
- This act was fundamentally introduced to address the issues of the population control, and completely overlooked the women’s rights which are the choices to make which can impact their bodies.
- The act was established at a time when the medical technology was not as progressive as of today. So there was a time limit kept since the only method known by them were dilation & evacuation which posed a threat to the maternal health if not done by some skilled professional. Presently, the circumstances are entirely altered, the technologies have improved and the termination of pregnancy at any point of time doesn’t pose as much risk as it did during 1971.
- The act causes damage to psychological condition on a similar level as that of physical health. For instance, a rape victim carries a child of the rapist can put a lot of pressure on her mental health just because of medical negligence and delay in court hearings.
- The act also doesn’t recognise the socio-economic effects of unintended pregnancy and its effect on women. This can lead to an incomplete purpose of why a woman searches for an MTP and why she should be eligible.
- MTP only allows allopathic physicians to perform the termination process. Bearing in mind all the advances in technologies drugs, skills, MTP needs to identify the services of the advancement of the Ayurveda, homoeopathic medicinal doctors as well.
- MTP is obsolete and is in a need to be restructured with the current technologies in line. Various foetal abnormalities are only identified after 20 weeks, which could turn a wanted pregnancy into an unwanted one.
- Courts frequently disregard the woman’s gynaecologist’s medical advice and aid for permission from the clinical council, which consists of court-appointed gynaecologists. In another case, an HIV rape victim from Bihar, who was denied an abortion by Patna Medical College when she was 18 weeks pregnant, was forced to give birth due to the 2017 postponement by the High Court of Patna as was mentioned in Hindustan Times[9].
- Although section 3 doesn’t deny abortion to unmarried, separated or widows, the use of the phrase “married women or her husband’s consent” might send a wrong message. Although activists tried to replace it with “all women”, but the recommendation has not been taken yet[10].
Recent Modifications
Finally, in an increase of female reproductive rights, the government held that the Cabinet had sanctioned prolonging the abortion limit from 20weeks to 24 weeks. Young girls, disabled girls, rape victims and others who face these difficulties will be benefitted from these. This change was done since the 20-week limit sometimes leads girls and women to pursue risky abortion in unlawful manners which are causing more maternal mortality. They also tried to eliminate the abortion limit for sex assault victims[11].
CONCLUSION
Abortion is rarely an easy decision to make, and I don’t believe it’s remotely fair to blame a woman into carrying a baby that she doesn’t want or cannot care for. It should wholly be a women’s right to choose and not by the boards of the medical team to decide. Abortion should be made accessible for one and all despite their circumstances. There needs to be a balance in considering these acts so that the woman doesn’t endure the worst part of the conflict of interest. Indian courts need to further reinforce the reforms of MTP and legal frameworks. They should give more considerations to women’s rights and defend them[12].
FOOTNOTES
[1] ‘Wayback Machine’ (20 June 2018)
<https://web.archive.org/web/20180620180646/http://www.pratigyacampaign.org/wpcontent/uploads/2014/07/8-Media-Kit_Glossary.pdf> accessed 30 August 2020.
[2] Elizabeth G Raymond and David A Grimes, ‘The Comparative Safety of Legal Induced Abortion and Childbirth in the United States’ (2012) 119 Obstetrics & Gynecology 215.
[3] Bela Ganatra and others, ‘Global, Regional, and Subregional Classification of Abortions by Safety, 2010–14:
Estimates from a Bayesian Hierarchical Model’ (2017) 390 The Lancet 2372.
[4] ‘Worldwide, an Estimated 25 Million Unsafe Abortions Occur Each Year’ <https://www.who.int/newsroom/detail/28-09-2017-worldwide-an-estimated-25-million-unsafe-abortions-occur-each-year> accessed 30 August 2020.
[5] Katherine Gambir and others, ‘Self‐administered versus Provider‐administered Medical Abortion’ (2020) 2020 The Cochrane Database of Systematic Reviews <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7062143/> accessed 30 August 2020.
[6] ‘Section 312 in The Indian Penal Code’ <https://indiankanoon.org/doc/1990693/> accessed 3 September 2020.
[7] ‘Indian Medical Council Act 1956 | Ministry of Health and Family Welfare | GOI’ (27 December 2019) <https://web.archive.org/web/20191227222222/https://mohfw.gov.in/medicaleducationcounselling/indianmedical-council-act-1956> accessed 30 August 2020.
[8] ‘Women Don’t Have Absolute Right to Abort: Government to SC’ (Hindustan Times, 19 September 2019) <https://www.hindustantimes.com/india-news/women-don-t-have-absolute-right-to-abort-government-tosc/story-xJYnwFibwU7Jezm5yRRu0H.html> accessed 31 August 2020. 9 Ganatra and others (n 3).
[9] ‘In a First, SC Orders Rs 10 Lakh Relief for Rape Victim Denied Abortion – India News – Hindustan Times’
<https://www.hindustantimes.com/india-news/in-a-first-sc-orders-rs-10-lakh-relief-for-rape-victim-deniedabortion/story-meFYuM9CyLSQyfqK1wFo6O.html> accessed 31 August 2020.
[10] Siddhivinayak S Hirve, ‘Abortion Law, Policy and Services in India: A Critical Review’ (2004) 12 Reproductive Health Matters 114.
[11] ‘India Backs Looser Abortion Laws in Boost for Women’ Reuters (29 January 2020)
<https://www.reuters.com/article/us-india-women-abortion-idUSKBN1ZS20B> accessed 31 August 2020.
[12] ‘Reproductive Rights In India’ Centre for Reproductive Rights (Blackwell Publishing Ltd 2009) < https://reproductiverights.org/sites/default/files/documents/Reproductive-Rights-In-Indian-Courts.pdf > accessed 30 August 2020.