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All women have Right to Legal and Safe Abortion: Supreme Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : MRTP Act

Mains level : Abortion rights debate

The Supreme Court has held that all women, irrespective of their marital status, are entitled to safe and legal abortion till 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP) Act.

A case for safe abortion

  • A Bench led by Justice D.Y. Chandrachud was hearing the appeal of a woman who wanted to abort her 24-week pregnancy after her relationship failed and her partner left her.
  • The lower court had taken an “unduly restrictive view” that her plea for a safe abortion was not covered under the Medical Termination of Pregnancy Act.
  • This was since the pregnancy arose from a consensual relationship outside wedlock.

What was the last amendment?

  • The court noted that an amendment to the Act in 2021 had substituted the term ‘husband’ with ‘partner’, a clear signal that the law covered unmarried women within its ambit.

Reiterating the live-in recognition

  • Chastising the lower court, the Bench said live-in relationships had already been recognised by the Supreme Court.
  • There were a significant number of people in social mainstream who see no wrong in engaging in pre-marital sex.
  • The law could not be used to quench “notions of social morality” and unduly interfere in their personal autonomy and bodily integrity.

About Medical Termination of Pregnancy (MTP) Act

  • Abortion in India has been a legal right under various circumstances for the last 50 years since the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971.
  • The Act was amended in 2003 to enable women’s access to safe and legal abortion services.
  • Abortion is covered 100% by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion.

The idea of terminating your pregnancy cannot originate by choice and is purely circumstantial. There are four situations under which a legal abortion is performed:

  1. If continuation of the pregnancy poses any risks to the life of the mother or mental health
  2. If the foetus has any severe abnormalities
  3. If pregnancy occurred as a result of failure of contraception (but this is only applicable to married women)
  4. If pregnancy is a result of sexual assault or rape

The pregnancy can be terminated upto 24 weeks of gestational age after the opinion of two registered medical practitioners under these conditions —

  • If the woman is ​​either a survivor of sexual assault or rape or incest
  • If she is a minor
  • If her marital status has changed during the ongoing pregnancy (i.e. either widowhood or divorce)
  • If she has major physical disabilities or is mentally ill
  • On the grounds of foetal malformation incompatible with life or if the child is born, it would be seriously handicapped
  • If the woman is in humanitarian settings or disaster, or emergency situations as declared by the government

These are the key changes that the Medical Termination of Pregnancy (Amendment) Act, 2021, has brought in:

  1. The gestation limit for abortions has been raised from the earlier ceiling of 20 weeks to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors. But this termination would need the approval of two registered doctors.
  2. All pregnancies up to 20 weeks require one doctor’s approval. The earlier law, the MTP Act 1971, required one doctor’s approval for pregnancies upto 12 weeks and two doctors’ for pregnancies between 12 and 20 weeks.
  3. Women can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status. Earlier the law specified that only a “married woman and her husband” could do this.
  4. There is also no upper gestation limit for abortion in case of foetal disability if so decided by a medical board of specialist doctors, which state governments and union territories’ administrations would set up.

Criticism of Abortion

  • Foetuses feel the pain: If the foetus is beyond 20 weeks of gestation, gynaecs assume that there will be pain caused to the foetus.
  • Abortions cause psychological damage: Young adult women who undergo abortion may be at increased risk for subsequent depression.
  • Abortions reduce the number of adoptable babies: Instead of having the option to abort, women should give their unwanted babies to people who cannot conceive. Single parenthood is also gaining popularity in the US.
  • Cases of selective abortion: Such cases based on physical and genetic abnormalities (eugenic termination) is overt discrimination.
  • Abortion as a form of contraception: It is immoral to kill an unborn child for convenience. Many women are using abortion as a contraceptive method.
  • Morality put to question: If women become pregnant, they should accept the responsibility that comes with producing a child. People need to take responsibility for their actions and accept the consequences.
  • Abortion promotes throwaway culture: The legalization of abortion sends a message that human life has little value and promotes the throwaway culture.

Arguments in favour for Abortion Rights

  • Upholding individual conscience and decision-making:  The US Supreme Court has declared abortion to be a fundamental right guaranteed by the US Constitution.
  • Reproductive choice empowers women: The choice over when and whether to have children is central to a woman’s independence and ability to determine her future.
  • Foetal viability occurs post-birth:  Personhood begins after a foetus becomes “viable” (able to survive outside the womb) or after birth, not at conception. Abortion is the termination of a pregnancy, not a baby.
  • No proof of foetal pain: Most neuroscientists believe that the cortex is necessary for pain perception. The cortex does not become functional until at least the 26th week of a foetus’ development.
  • Preventing illegal abortions: Access to legal, professionally-performed abortions reduces maternal injury and death caused by unsafe, illegal abortions.
  • Mother’s health: Modern abortion procedures are safe and do not cause lasting health issues such as cancer and infertility.
  • Child’s health: Abortion gives pregnant women the option to choose not to bring fetuses with profound abnormalities to full term.
  • Prevents women’s exclusion: Women who are denied abortions are more likely to become unemployed, to be on public welfare, to be below the poverty line, and to become victims of domestic violence.
  • Reproductive choice protects women from financial disadvantage: Many women who choose abortion don’t have the financial resources to support a child.
  • Justified means of population control: Many defends abortion as a way to curb overpopulation. Malnutrition, starvation, poverty, lack of medical and educational services, pollution, underdevelopment, and conflict over resources are all consequences of overpopulation.

Conclusion

  • Hence it is now established that the right to abortion is a legal right of all women.

 

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