REPRODUCTIVE RIGHTS AND ABORTION LAWS IN INDIA
By- Tejashwini Mallick, 2nd Year Student at National Law University and Judicial Academy Assam, Guwahati
Reproductive rights are merely not about the right to give birth but it is inextricably linked with the constellation of other rights which include the right to life, liberty, equality and non-discrimination, freedom from cruel treatment, etc. Women have the right to the highest attainable standard of health, where health means the state of complete physical, mental and social well-being ensuring that they have the right to comprehensive reproductive health information, right to make fully informed decisions free from discrimination, coercion, and violence so that every birth is safe and every child is wanted.
The status of abortion rights not just indicates the legality of whether women or girls are permitted to decide the pregnancy term or not but it also reveals their status in the society of which they are a part. It shows whether or not they are given the opportunity of being treated with equality and are given the freedom to driving the course of their own lives.
The Centre for Reproductive Rights categorizes the countries as (1) abortion prohibited altogether, where abortion is not permitted under any circumstances, including when the woman’s life or health is at risk and remarkably 26 countries which estimate 90 million women of reproductive age fall under this category. Other categories are (2) To save women’s life (3) to preserve health (4) broad social and economic grounds (5) on request (gestational limits vary).
India falls under the category of broad social and economic grounds where countries often consider a woman’s social or economic circumstances in considering the potential impact of pregnancy and childbearing.
India is among the first 15 countries of the world to develop policy and legal framework on abortion. By the virtue of the Medical Termination of Pregnancy act, 1971, abortion was made legal in India and the Act provides the circumstances and conditions under which pregnancies may be terminated by registered medical practitioners in a legal way.
During the last decade, there have been multiple times when apex court and high courts also identified reproductive rights as fundamental rights. In the case of Suchita Srivastava v. Chandigarh administration, the court reiterated that a women’s reproductive rights and independence form an aspect of ‘personal liberty’ under article 21. It said that the personal autonomy of the person should be respected with regard to a decision about termination of pregnancy. A women’s entitlement to carry her pregnancy to its full term, to abortion, to give birth, and to subsequently raise her child, all these rights form a nexus with her right to privacy, dignity, and bodily integrity.
Despite these rulings and judgments, women and girls still continue to face significant barriers to full enjoyment of their reproductive rights. While three fourth of the Indian population lives in rural areas where abortion facilities are rarely available, the socio-economic vulnerabilities also act as serious impediments to their access to safe abortion. In spite of abortion being legal in our country, 50% of abortion are unsafe and are estimated to account for 20% of all maternal deaths, which is similar to the countries where it is completely illegal.
The aforementioned statistics show that India has garnered little momentum in taking adequate measures to deal with maternal mortality and morbidity due to unsafe abortions. The challenges are faced by the major underprivileged population due to lack of access to abortion services, lack of awareness of the legality of abortion rights in rural areas, and an inadequate number of registered health care providers.
Furthermore, there are issues that need to be addressed under the MTP Act which states that a pregnancy may be terminated under 12 weeks with the permission of one medical practitioner, and if the pregnancy is between 12 and 20 weeks, the authorization of two medical practitioners is mandatory if they are of the opinion that the continuation of the pregnancy would risk the life of the pregnant woman by causing physical or mental injury or there is a substantial risk that the child born would suffer from physical or mental abnormalities. Because of this the doctors have the ultimate discretion of decision making and have control over the body and choice of the woman which evidently infringes her right to make reproductive choices. Also, in rural areas which have poor medical facilities and an inadequate number of registered health practitioners, it is difficult to find two medical practitioners for authorization which often leads to delay in abortion.
There has also been a number of cases in the past decade in which the apex court and high courts have given judgments in favour of termination of pregnancy beyond the limit of section 3 of the MTP act under various circumstances. In the case of Meera Santosh Pal & Others V. Union of India & Others, the Supreme Court allowed an abortion at 24 weeks of pregnancy as it endangered the life of the pregnant woman. There have also been cases in which many High Courts have allowed abortions in the 20th week of pregnancy in cases of sexual violence.
In many post 20 weeks cases, it has been observed that certain complications or fetal impairment may come to light only after the second and third trimesters. In cases of rape victims and sexual assault survivours, the pregnancy may come to light only after 20 weeks because of various reasons such as lack of awareness about the possibility of being pregnant or the symptoms of being pregnant. In such cases, if the girl or woman is forced to continue with the pregnancy then it may lead to trauma, mental anguish, and health risks. The courts have also recognized in many cases that unwanted pregnancies are a burden and forced pregnancy is violence against women. In the case of High Court on Its Own Motion v. The State Of Maharashtra, the division bench of the Bombay High Court passed a landmark judgment recognizing the absolute right of women to abortion. The court stated, “Woman owns her body and has a right over it. Abortion is always a difficult and careful decision and woman alone should be the choice-maker… unborn foetus cannot be put on a higher pedestal than the right of a living woman”.
There is also an urgent need to remove prejudice against unmarried women who still do not have the right to abortion as a reason for “failure of contraceptives”. It is only a legal reason for married women to get an abortion under reasons of “failure of contraceptive’ and “unplanned pregnancy”
All these compelling factors of denial and delay in abortion often lead women to opt for unsafe pathways. These clandestine procedures often take place in unsanitary and unsafe conditions and women who lack awareness are outright misled.
Therefore, there is a need to reform the reproductive laws and bring it in line with international guidelines and global recommendations. Countries around the world with liberal abortion rules have recognized physical and mental health as a ground for abortion without gestational limit. In Canada, abortion is allowed during any stage of the pregnancy at the request of the woman. Even countries with gestational limits allow termination of pregnancy beyond 23 weeks in case of health risks and foetal abnormalities.
Thus, India needs to reform its laws with regard to the termination of pregnancy by increasing the upper limit from 20 weeks to 24 weeks, to relax the requirement of the opinion of two medical practitioners, and make “failure of contraceptive” a legal reason for abortion in case of unmarried women without their rights of confidentiality being violated by mandatory reporting requirements. There is also an urgent need for awareness campaigns in rural areas as the majority of these underprivileged populations are unaware of their abortion rights and are often trapped under the barriers of social stigma, myths, and misconceptions. Although the proposed amendment bill covers most of these factors, there is still a long road ahead for India to remove all sorts of legal and practical barriers and come in line with the international standards.
Suchita Srivastava v. Chandigarh administration, (2009) 9 SCC 1
Meera Santosh Pal & Others V. Union of India & Others, (2017) 3 SCC 462
High Court on Its Own Motion v. The State Of Maharashtra, 2016 SCC OnLine Bom 8426
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)