Is Abortion Legal? Pro Life vs. Pro Choice

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This post is written by Pragya Yadav, a third-year law student at IIMT, IP University, Delhi.

WHAT IS “ABORTION”?

In Criminal Law, abortion is defined as an intentional termination of pregnancy. In other words, abortion is premature removal of the Foetus from the woman’s body at any time of her pregnancy.

Abortion may be divided into two categories- first, natural or spontaneous abortion, which happens either spontaneously or accidentally due to some natural or medical occurrences; second, artificial or induced abortion, which occurs with the help of some medical procedure performed on the woman with the intention of the termination of pregnancy.

HISTORY OF LEGALISATION OF ABORTION IN INDIA?

The Indian Penal Code, 1862, made abortion a punishable crime except in the cases where the abortion has been done to save the life of the woman. The liberalisation of the abortion laws in Europe and America started in the 1960s and 70s along with India which saw the liberalisation of the abortion laws in the year 1964.  This movement in India was mainly due to the reason that many gravely ill and dying women had terminated their pregnancy with the help of an unskilled practitioner. The Indian Government realised that if they decide to decriminalise the abortion then the women would seek abortion in a safe and legal setting and created the Shah committee to assess the socio-cultural, legal and medical aspects of abortion. The committee after conducting a thorough review recommended the legalisation of abortion to ensure women’s health and lives on both compassionate and medical grounds.

Soon after this, the Medical Termination of Pregnancy [MTP] Act was passed by the parliament in the year of 1971 which legalised abortion in all of India except in the state of Jammu and Kashmir.

The MTP Act deals with the time, place and conditions under which a woman may be able to get her pregnancy terminated by a registered medical practitioner. The Act enumerates the medical, social, humanitarian and eugenic grounds for the termination of the pregnancy up to the time of 20 weeks of gestation.

The conditions mentioned in the MTP Act for the termination of the pregnancy includes grave mental or physical risk to the woman, as when the pregnancy is the result of the contraceptive failure, or on the humanitarian ground such as if the pregnancy is the result of sexual crime such as rape of the woman or sexual intercourse with a mentally-challenged woman or eugenic grounds where there may be a substantial risk to the child and if the child were to be born would suffer from some deformity or disease. In the aforementioned scenarios, the Act allows any government hospital or registered medical practitioner to perform the procedure of abortion.

ABORTION AS A FUNDAMENTAL RIGHT

The Supreme Court in the landmark judgement of the case, Suchita Srivastava & Another v. Chandigarh Administration, held that it is the women’s right to choose the continuation of her pregnancy. The Supreme Court held that the state must ensure a woman’s reproductive rights as a component of her rights to personal liberty, dignity and privacy under Article 21.

In another case of Laxmi Mandal v. Deen Dayal Hari Nagar Hospital, the Delhi High Court ruled that preventable maternal death represents a violation of Article 21 of the Constitution and commanded the NCT of Delhi to administer the service guaranteed in the National Rural Health Mission, including safe abortion services to prevent the maternal deaths. This landmark judgement ensured that the state took preventive measures to end the maternal deaths especially those maternal deaths which were the result of the inadequate access to safe abortion.

NEW CHANGES MADE IN THE MTP ACT

The Union Cabinet has approved some amendments to the MTP Act which will help in building up the women’s reproductive rights and may also help in preventing unsafe abortions. The new amendments to the Act include the extension of the gestation limit for the termination of pregnancy from 20 weeks to 24 weeks for rape victims, victims of incest, differently-abled women and minors.

Reacting to the new changes to the MTP Act Suryaprabha Sadasivan, vice-president and healthcare practice lead, Chase India, a research and public policy consultancy said “Replacing the archaic law of 1971 to keep up with medical advancements is a great step forward to ensure that women across India, legally and rightfully get access to safe abortions. This amendment was long overdue. In the times when countries, including many states in the US, are restricting abortion, it is heartening to see a trend of liberalization of abortion laws, which in today’s day and age, is not a privilege but an absolute right of every women”.

Sources:

  • https://www.tandfonline.com/doi/full/10.1016/S0968-8080(04)24017-4
  • https://www.livemint.com/
  • http://www.legalserviceindia.com/legal/article-724-abortion-laws-in-india.html
  • https://thewire.in/gender/abortion-pregnancy-law-india
  • https://lawlex.org/lex-pedia/step-up-indias-progressive-abortion-law/20205
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