This article is written by Simran Bhaskar, a 3rd year student pursuing B.A.,LL.B. from UPES, Dehradun.
Abortion has always been and continues to be a controversial topic. Whether one should be permitted by law to have an abortion, if yes then under what circumstances? Secondly, how does the law interpret the rights of an unborn child?
Abortion is opposed based on the ground that lives must be saved and not destroyed but shouldn’t a mother decide to whether she wants a child or not? Those who oppose abortion believe that life begins with fertilization, and on the other hand, some people support abortion because a fetus is an incomplete human being and it can’t be equated at par with humans.
The world is already divided between the issues of abortion. A country like Japan allows abortion where women will is more than enough to carry out but a country like India only allows abortion under various degrees of condition, and these conditions are variable.
A very important piece of legislation talks about half of India has gone unapplauded. In late January 2020, the Union Cabinet amended the 1971 Medical Termination of Pregnancy (MTP) Act which allows women to seek abortion as a part of their reproductive rights and gender justice. This amendment also places India in one of the top league of countries serving women to make individual choices from their perspective and predicament.
The amendment also raised its upper limit of MTP from 20to 24 weeks for women including the rape survivors, victims of incest, minors, and differently-abled women. India has also acknowledged the failure of contraception and MTP is now available to ‘any women or their partner’ rather than only ‘married women and their husband.’
A 2015 study on Indian Journal of Medical Ethics it has been observed that 10-13% of the maternal deaths in India are due to unsafe abortions. It is seen that every day around six to seven women lose their lives due to unsafe abortion and those who survive such methods are compelled to live with a life of pain and infertility. The access to safe abortion has established human rights by numerous international frameworks and in 2003 WHO has given guidelines to help the government to pass progressive abortion laws.
India was inspired by the landmark judgment of Roe v Wade which clearly states that to protect a woman’s liberty to decide whether she wants to abort the child or not without any government restriction.
Creation of conflict with the MTP Act
The purpose of the MTP Act is different from the PCPNDT Act. The former act helps to aid the cases of sex determination and sex-selective abortion but the amended Act does not allow sex determination of the child The it would be imperative of the law to see the purpose behind both the laws and apply it accordingly.
As per the PFI’s Executive Director, abortion is a reproductive right of every woman and the stigma attached to it is due to the lack of awareness.
Abortion laws around the world
The abortion laws across the globe have been modified with the advancement of the technologies.
- United States:
Roe v. Wade is almost the same as the US and abortion laws. According to it, medical judgment may be exercised in the light of all factors, physical, emotional, psychological, and familial, allowing the attending physician the room he needs for making the best medical judgment. Gestational limits vary between eight to twelve weeks. Twenty-two states have banned the use of procedure anywhere between 13 and 25 weeks. But states like Alabama do not allow termination throughout the pregnancy period.
Medical termination of pregnancy is available on request. The gestational limit is 14 weeks, calculated from the first day of the last menstrual period.
Legal abortions are permitted in case of rape and if there is no other way to save the life of pregnant women. Women and girls who terminate pregnancies under any other circumstances face up to three years in prison. Media reports say more than 300 abortion-related cases against women were registered by the courts in 2017, many of them reported by health professionals from whom women were seeking MTPs outside the system.
The gestational limit is 12 weeks from conception or 14 weeks from the first day of the last menstrual period, and MTP is available on request. During this period the intervention can be performed any time if two physicians, members of a multidisciplinary team, certify that continuance of the pregnancy seriously endangers the health of the woman or there exists a strong probability that the unborn child is suffering from a disorder of particular seriousness recognized as incurable at the moment of diagnosis.
Abortion is permitted on request and gestational limits vary depending on strict regulatory mechanisms.
· Sri Lanka
Abortion is legally permitted to save a woman’s life. Punishment for causing a miscarriage is a fine that could include up to three years imprisonment. Despite these laws, the number of abortions in the island nation remains high with the Ministry of Health reporting in 2016 that 658 abortions per day. In Sri Lanka, 12.5% of all maternal deaths are due to illegal abortions, making it the third most common cause of maternal mortality.
 India’s new abortion law is progressive and has a human face, Chitra Subramaniam, March 07, 2020, Health Express,https://www.orfonline.org/expert-speak/india-new-abortion-law-progressive-human-face-62023/
 It’s gender justice: Amendment to MTP Act will align the reproductive rights of women with 21st-century medicine, Smriti Irani, January 31, 2020, TOI Blog, https://timesofindia.indiatimes.com/blogs/toi-edit-page/its-gender-justice-amendment-to-mtp-act-will-align-the-reproductive-rights-of-women-with-21st-century-medicine/
410 U.S. 113 (more) 93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159
Image from here