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Context

The issue of abortion is in the news again, internationally.

Criminal law provisions related to termination of pregnancy

• Under the general criminal law of the country, i.e. the Indian Penal Code, voluntarily causing a woman with child to miscarry is an offence attracting a jail term of up to three years or fine or both, unless it was done in good faith where the purpose was to save the life of the pregnant woman.
• A pregnant woman causing herself to miscarry is also an offender under this provision apart from the person causing the miscarriage, which in most cases would be a medical practitioner.

Background of the MTP Act

• In 1971, after a lot of deliberation, the Medical Termination of Pregnancy (MTP) Act was enacted.
• This law is an exception to the IPC provisions above.
• Who, when, where, why and by whom? The law sets out the rules — of when, who, where, why and by whom — for accessing an MTP.
•  This law has been amended twice since, the most recent set of amendments being in the year 2021 which has, to some extent, expanded the scope of the law.
• The law does not recognise and/or acknowledge the right of a pregnant person to decide on the discontinuation of a pregnancy.
• The law provides for a set of reasons based on which an MTP can be accessed.

Reasons allowed for MTP

• Reasons: The continuation of the pregnancy would involve a risk to the life of the pregnant woman or result in grave injury to her physical or mental health.
• The law explains that if the pregnancy is as a result of rape or failure of contraceptive used by the pregnant woman or her partner to limit the number of children or to prevent a pregnancy, the anguish caused by the continuation of such a pregnancy would be considered to be a grave injury to the mental health of the pregnant woman.
• The other reason for seeking an MTP is the substantial risk that if the child was born, it would suffer from any serious physical or mental abnormality.
•  A pregnant person cannot ask for a termination of pregnancy without fitting in one of the reasons set out in the law.
• Gestational age of pregnancy: The other set of limitations that the law provides is the gestational age of the pregnancy.
• The pregnancy can be terminated for any of the above reasons, on the opinion of a single registered medical practitioner up to 20 weeks of the gestational age.
• From 20 weeks up to 24 weeks, the opinion of two registered medical practitioners is required.
• Any decision for termination of pregnancy beyond 24 weeks gestational age, only on the ground of foetal abnormalities can be taken by a Medical Board as set up in each State, as per the law.
• The law, as an exception to all that is stated above, also provides that where it is immediately necessary to save the life of the pregnant woman, the pregnancy can be terminated at any time by a single registered medical practitioner.

Issues with the MTP Act provisions

• While India legalised access to abortion in certain circumstances much before most of the world did the same, unfortunately, even in 2020 we decided to remain in the logic of 1971.
• Right to health and right to life: By the time the amendments to the MTP Act were tabled before the Lok Sabha in 2020, a number of cases came before the courts.
• In these cases, the courts had articulated the right of a pregnant woman to decide on the continuation of her pregnancy as a part of her right to health and right to life, and therefore non-negotiable.
• Violation of right to privacy: In right to privacy judgment of the Supreme Court of India it was held that the decision making by a pregnant person on whether to continue a pregnancy or not is part of such a person’s right to privacy as well and, therefore, the right to life.
• The standards set out in this judgment were also not incorporated in the amendments being drafted.
• Not in sync with central laws: The new law is not in sync with other central laws such as the laws on persons with disabilities, on mental health and on transgender persons, to name a few.
• In conflict with other laws: The amendments also did not make any attempts to iron out the conflations between the MTP Act and the Protection of Children from Sexual Offences (POCSO) Act or the Drugs and Cosmetics Act, to name a few.

Conclusion

While access to abortion has been available under the legal regime in the country, there is a long road ahead before it is recognised as a right of a person having the capacity to become pregnant to decide, unconditionally, whether a pregnancy is to be continued or not.

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