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The Legality of Abortion

The legality of Abortion: How does the law treat abortion and What are the moral aspects of the problem?

By:Smriti Thakur[i]

 

Introduction of Abortion

Abortion means a procedure performed at any point during human pregnancy; it is sometimes is called is sometimes medically defined as either miscarriage or induced termination before the point of viability. Throughout, the history they abortion was induced by various methods, and moral and legal aspects are being debated in many parts of the world. A spontaneous abortion is also known as a miscarriage. Talking about the legality of abortion in India is legal under various circumstances. In India, it can be performed until 24 weeks of pregnancy as defined in the Medical Termination (Amendment) Bill, 2020, and in an exceptional case,s a court may allow a termination after 24 weeks.

Types of Abortion

There are two types of Abortion :

🔳 Induced Abortion          🔳 Spontaneous Abortion

Induced Abortion

An abortion that is brought about intentionally. It can also be referred to as an artificial or therapeutic abortion, or we can say that when a woman gets a pregnancy terminated voluntarily from a service provider, it is called induced abortion.

Spontaneous Abortion

It refers to the loss of pregnancy before the 20th week that can be both physically or mentally painful, or it can also say as miscarriage. It is opposite of the Induced Abortion.

Abortion is Safe or Not

According to the World Health Organization in the year 2017, observed that there was a dichotomous classification of abortion as safe and unsafe. However, with the advancement in technology, now abortion becoming safer to perform. Furthermore, they are being replaced by safer, less safe and least safe. However, permitting a more nuanced description of the spectrum of varying situations that constitute unsafe abortion and the increasingly widespread substitution of dangerous, invasive methods using Misoprostol outside the formal health system.

How these types of Abortion performed

     1.Safe Abortion: It is provided by health care workers and recommended methods by the World Health Organization.

  1. Less Safe Abortion: They are done by a trained practitioner using non-recommended methods or using a safe method, i.e. Misoprostol but with adequate information from a trained individual.
  2. Least Safe Abortion: It is done by a trained provider using dangerous methods.

History of Abortion Laws in India

Before 1971:

Before 1971 when there was no proper regulation over abortion, they were maintained under Section 312 of The Indian Penal Code, 1860.  It described abortion as to carry out to save the life of the woman except when done intentionally causing miscarriage. It defined as a punishable offence, and punishable provide to the offender or provider who caused a miscarriage of the unborn child, with three years imprisonment or fine or both and the woman availing of the service facing seven years in prison and a fine.

When abortion was legal in 15 countries, they also induced India to initiate the same. However, due to this initiative, there was an alarming increase in abortion in India and determined a phase of alert by the  Ministry of Health and Family Welfare.  In 196,4 there was a commitment formed led by Shantilal Shah, who draft some suggestions to draft the abortion laws in India. These recommendations thereby accThis recommendation produced in the Parliament as the “Medical Termination of Pregnancy Bill”, passed in August 1971 as “Medical Termination Of Pregnancy Act, 1971”.

Increment in Abortion Cases in India

It is assumed that almost 15.6 Million abortions take place every year. Moreover, from which a large proportion of abortion is expected to be unsafe. This makes the third largest issue by which a women dies. A data reveals that unsafe abortion results in 10 deaths of women in a single day. That is why it results in a need to form specific regulations to prevent them. The data from the Abortion Assessment Project defines an estimation of 6.4 Million abortions annually in India.

Medical Termination of Pregnancy Act, 1971

Objective: The main aim of the MTP Act, 1971 was to provide the legal framework for making CAC services available across India. Moreover, termination of pregnancies under the guidance of a practitioner and permitted for a broad range of up to 20 weeks of gestation. But extendable in the conditions,

All the conditions are defines as:

1.When there is a risk to a pregnant woman’s life in the meanwhile of continuation of pregnancy, which causes grave injury to the women, whether physical or mentally.

2.When there is a risk that if the child born, he/she will be disabled or dead due to physical or mental abnormalities.

3.When it is caused due to rape.

4.When pregnancy is caused due to failure of the use of contraceptives by married women, it leads to a mental or physical injury to the women.

This act specifies that

Time since conception The requirement for terminating a pregnancy in the MTP Act, 1971
Up to 12 weeks The advice of one doctor
12 to 20 weeks The advice of two doctors
20 to 24 weeks Not allowed
More than 24 weeks Not allowed
Any time during the pregnancy One doctor, if immediately necessary to save a pregnant woman’s life.

The MTP Act also specifies that

(i) who can terminate a pregnancy;

(ii) till when a pregnancy can be terminated; and

(iii) where can a pregnancy be terminated? The MTP Rules and Regulations, 2003 detail training and certification requirements for a provider and facility; and provide reporting and documentation requirements for safe and legal termination of pregnancy.

Why women still have unsafe abortions?

According to the research, almost 65% of abortions in India are under the category of unsafe abortions. There can be so many reasons which lead to unsafe abortions areas:

1.Not adequate facilities at the local or village level.

2.Lack of trained practitioners.

3.Unhygienic conditions in the hospitals.

This can be well explained by an example of a lady from Guwahati, Assam who went for abortion in a private clinic. There the abortion performed by inexperienced medical practitioners lead to several abdominal pain after one month of abortion and later developed a disease, diagnosed with choriocarcinoma, a form of cancer in women’s uterus. This leads due to unawareness of the medical practitioner.

Situations related to late- termination of pregnancies

  1. In 2017, a 13-year-old rape survivor approached the Bombay High Court to seek termination of her 26th-week termination of pregnancy. This case stimulates where a girl was repeatedly raped by her cousin’s. Considering the issue and analysing the girl Bombay High Court’s medical report grant her to terminate the pregnancy.
  2. When a 24-year-old woman from Pune was diagnosed with a cardiac abnormality, she approached the Bombay High Court seeking permission to abort her 24-week foetus. The medical board then asked to examine the woman advised abortion while reporting that the child may have to undergo multiple surgeries. The Court consequently, granted permission for the abortion.

Like these, there are several issues but the passing of Medical Termination (Amendment) Bill, 2020 gained much controversy:

Medical Termination (Amendment) Bill, 2020

▪ This act regulates the conditions under the pregnancy, and by considering these conditions, pregnancy nay is aborted.

▪ In this time period for termination of pregnancy increases from 20 to 24 weeks

▪ It also defines that now pregnancy can be terminated in the case described as:

Time since conception The requirement for terminating a pregnancy in MTP Amendment Bill, 2020
Up to 12 weeks The advice of one doctor
12 to 20 weeks The advice of one doctor
20 to 24 weeks Two doctors for some categories of pregnant women.
More than 24 weeks Medical Board in case of substantial foetal abnormality
Any time during the pregnancy

 

One doctor, if immediately necessary to save pregnant woman’s life

 

 

Issues

  1. As there were a different set of opinions regarding the same for allowing abortion
  2. One opinion also defines that pregnancy termination should be a choice of women, not the doctors as it affects their life, and a part of her reproductive rights. Second, a state must save a life so there will be the conditions for not guaranteeing termination of abortion as they have to protect life.
  3. This Bill passed when several write petitions were filled for the same
  4. Thus Bill does not classify women who may terminate the pregnancies after 24 weeks and leave it to be decided through rules. It may be argued that such matters should be specified by Parliament and not delegated to the government.
  5. The Act (and the Bill) requires an abortion to be performed only by doctors specialising in gynaecology or obstetrics.  Moreover, due to shortages of doctors, how this will lead to success.

Conclusion

This article talks about the Medical Termination Act, 1971 and the amendment in 2020, known as Medical Termination ( Amendment ) Bill, 2020. It will be the choice of every woman whether she is ready for the responsibility of aborting a child or not. Even technology is so advance still we see the lack of adequate facilities and medical practitioners available to them. Therefore it is a need of an hour to work upon these aspects. Moreover, this paper describes all the issues related to Medical Termination Act. Moreover, a mother can abort their unborn child by fulfilling the requirements mentioned in the Medical Termination (Amendment) Bill, 2020. Therefore, it is good to increase pregnancy termination and understand women’s physical and mental pain.

References

1.[Name of the website:PRSIndia][URL:https://www.prsindia.org/billtrack/medical-termination-pregnancy-amendment-bill-2020] [ last visited on 11th Feb ]

2.[Name of the website:blog.ipleaders.in][URL: https://www.google.com/amp/s/blog.ipleaders.in/abortion-under-the-medical-termination-of-pregnancy-act/amp/][last visited on 11th Feb]

3.[Name of the Website:Legal services India][URL: http://www.legalservicesindia.com/article/2436/legalizing-abortion-in-India.html][last visited on 11th Feb]

 

 

[i] Smriti Thakur, Student of SS Law College

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