The Insoluble Dilemma of Termination of Pregnancy

No women should be told that she can’t make decisions about her own body. When women’s rights are under attack, we fight back.

– Kamala Harris

Worldwide, abortion is acknowledged as an important aspect of reproductive health of women. At present, 26 countries including Egypt, Angola, Thailand, the Philippines, Madagascar and Iraq do not permit abortion and 39 countries including Brazil, Mexico, Sudan, Indonesia and Sri Lanka permit abortion when the women’s life is at risk. Only some countries like China, Russia, Canada, Australia, South Africa permit abortions on request mostly up till 12 weeks.

According to a study published in Lancet Global Health, out of 15.6 million abortions occurred in India in 2015, 78% were carried outside health facilities. Though abortion was legalized in 1971, unsafe abortions is the third leading cause of maternal deaths in India. Other barriers include the implementation of the Protection of children from sexual offences act, 2012 and the Pre-Conception Pre-Natal Diagnostic Techniques Act, 1994 as a result of which doctors hesitate to provide abortion services to women and young girls.

A study in the Indian Journal of Medical Ethics has observed that 10-13% of maternal deaths in India can be attributed to unsafe abortions. It roughly translates into at least six to seven women losing their lives due to unsafe abortions every day. Many of those who survive such methods are compelled to live a life of pain compounded by infertility, sepsis, and other internal injuries. Studies have shown that the 20 weeks limit on abortion is based on outdated medical concepts from the 1970s. Developments in medical science which include medical abortion pills and vacuum aspiration which allow for safer abortions have found no legal resonance in the Medical Termination of Pregnancy Act, 1971.

Recently, the Union Cabinet has approved the Medical Termination of Pregnancy (MTP) (Amendment) Bill, 2020. The bill seeks to extend the termination of pregnancy period from 20 to 24 weeks, making it easier for women to safely terminate an unwanted pregnancy. The amendment is significant because, in the first five months of pregnancy, some women realize the need for abortion very late. Usually, the foetal anomaly scan is usually done during the 20-21st week of pregnancy. If there is a delay in doing this scan and it reveals a lethal anomaly in the foetus, 20 weeks is limiting.

According to analysis, the 20 weeks limitation has spurred a cottage industry of places providing unsafe abortions services, even leading, in the worst of cases to the death of the mother. When women take the legal route to get formal permission for termination after 20 weeks, the process is tedious. Hence, the extension of limit would ease the process for these women, allowing the mainstream system itself to take care of safe termination of pregnancies and delivering quality medical attention. The move will ensure dignity, autonomy, confidentiality for women and upholds their reproductive rights over their bodies and the maternal mortality rate would be reduced. India now stands among nations with a highly progressive law which allows legal abortions on a broad range of therapeutic, humanitarian and social grounds. The new MTP (Amendment) Bill,2020 is a milestone which will further empower women, especially those who are vulnerable and victims of rape.

The court in the case of Mrs.X vs. Union of India has held that “a women’s right to make a reproductive choice is also a dimension of her ‘personal liberty’ under article 21 of the Constitution and that the right to bodily integrity allows her to terminate her pregnancy. Similar judgments were passed by the Supreme court in other cases where pregnancies were beyond 20 weeks and the fetuses had various medical conditions and anomalies, resulting in a high risk to the fetus and the mother(Tapasya Umesh Pisal vs. Union of India [24 weeks]; Meera Santosh Pal vs. Union of India[23 weeks]; Mamta Verma vs. Union of India[25 weeks]).

Yet, a basic question arises that whether the bill is enough to secure the interests of women?

While the MTP Bill, 2020 is a step in the right direction, it still fails to address most of the problems with the MTP Act. First, it doesn’t allow abortion on request at any point after the pregnancy. Secondly, it doesn’t take a step towards removing the prejudice against unmarried women by amending the relevant provisions. And finally, it enhances the gestational limit for legal abortion from 20 to 24 weeks only for specific categories of women such as survivors of rape, victims of incest and minors. This means any woman who does not fall under this category will not be able to seek an abortion beyond 20 weeks, even if she suffers from a grave physical or mental injury due to the pregnancy.

The Supreme Court has recognized women’s right to make reproductive choices and their decision to abort as a dimension of their personal liberty(in Mrs X vs. Union of India,2017)  and as falling within the realm of the fundamental right of privacy (in K.S. Puttasswamy v. Union of India,2017). Not only the current abortion law of 1976 fails to allow the exercise of this right but also the amendment made makes it evident that it is not enough to secure women’s interests, and there is still a long road ahead for progressive abortion laws since the question of abortion needs to be decided on the basis of human rights, the principles of solid science and in step with advancements in technology.

REFERENCES

  • Protection of children from sexual offences act, 2012
  • Pre-Conception Pre-Natal Diagnostic Techniques Act, 1994
  • Medical Termination of Pregnancy Act, 1971.
  • Medical Termination of Pregnancy (MTP) (Amendment) Bill, 2020.
  • X vs. Union of India, Feb 2017
  • Tapasya Umesh Pisal vs. Union of India, 10 August 2017
  • Meera Santosh Pal vs. Union of India, 2017
  • Mamta Verma vs. Union of India, 2017
  • S. Puttasswamy v. Union of India, 2017

ABOUT THE AUTHOR

Ipshita Mishra

Ipshita

Ipshita is a law graduate working as a legal researcher in the High Court of Allahabad. She takes a keen interest in reading and writing about contemporary issues related to and surrounding women.

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