Need for Abortion Law in India

Recently, it has been enquired by the Delhi High Court from the Centre about a petition seeking to raise the time period for termination of pregnancy in case of any health risks either to the mother or the fetus, from 20 weeks to 24-26 weeks.

Key Facts Related to Abortion

According to a study report conducted by Guttmacher Institute:

  • In 2015, total 15.6 million abortions occurred in India, 78% of these were due to deprivation of appropriate health facilities.
  • In India, 3.4 million abortions take place due to improper health facilities.
  • 8 million abortions take place due to lack of health facilities and through unsafe methods.
  • 8% of maternal deaths in India are caused by unsafe abortions.

Laws Related To Abortion In India

According to Section 312 of IPC there is an imprisonment up to 7 years for the person voluntarily causing miscarriage to women or for the women herself if she proposes to miscarry.

According to POCSO Act, 2012 it is mandatory to report all abortion cases of girls under the age of 18 years.

Prenatal Diagnostic Techniques (PCPNDT) Act outlaws sex-selective acts of termination of pregnancy.

Medical Termination of Pregnancy Act (MTPA), 1971

MTPA governs the right to abortion. It allows medical termination of pregnancy but only by a “registered medical practitioner” at a registered medical termination of pregnancy center.

It limits the grounds of abortion to the following situations:

  • Where there is a risk that if child is born, it would suffer from physical and mental abnormalities.
  • Where pregnancy can be a threat to life of women or would cause grave physical and mental injury to her.
  • Where pregnancy caused due to rape or due to the failure of contraceptive methods.

Act allows the medical termination of pregnancy in the first 3 months, but only with the approval of one registered medical specialist.

Between 12-20 weeks, pregnancy can be terminated with the approval of 2 medical practitioners.

Beyond 5 months, termination of pregnancy is allowed on the grounds mentioned under Section 3 of the MTP Act, subject to the approval of court:

MTP Amendment Act of 2002

The act has been made as an amendment to the existing MTP, Act 1971 as an additional improvement.

It decentralized the regulation of private abortion facilities from the State to District Level Committees.

It also allowed Registered Medical Practitioners to provide medical pill abortions up to 7 weeks of pregnancy in a facility approved for providing abortion services.

Why Restrictions on Abortion?

  • A fetus after certain span of time gets converted to a living being with heartbeats and grown body parts with movements, thus killing it, must be counted as crime on par with killing of human being.
  • A fetus at the later stages has a Right to life.
  • Many women go through abortion under pressure from family or society, only to bear mental trauma due to guilt feeling afterwards.
  • There are evidence that abortion can cause damage and/or infection to the uterus and the Fallopian tubes making a woman infertile. It also increases the risk of breast cancer at the later stages of life.

Criticisms in India Regarding Abortion

POCSO-MTP issue: Due to the reporting requirements mentioned in POCSO act, abortion service providers hesitates in providing services to the girls less than 18 years of age. It becomes a big problem considering the fact that child marriage is still prevalent in rural India.

Violation of rights: Women should have the sole and legal right for any decision regarding her body. Thus, she should not be bound to carry pregnancy. She must be provided with Right to Life and liberty as enshrined under article 21 of the Constitution.

20 weeks ceiling:

  • The ceiling of 20 weeks for termination of pregnancy is concerning in itself as in cases involving child assaults and underage rapes, pregnancy may come to light very late.
  • Court Judgments on the abortion cases involving pregnancy of over 20 weeks have been arbitrary. There are many examples where judgment forced women to continue with the pregnancy and deliver babies with severe health defects.
  • Moreover, the judicial process is so slow that the victim’s pregnancy often crosses the legal limit and she is unable to abort.
  • In many cases, rape victims are not allowed to terminate the pregnancy if it is over 20 weeks and does not pose any risk to the life of the woman.
  • Most of the tests/scans done to identify any severe abnormality or genetic disorder are conducted after 20 weeks of pregnancy.

Misuse of PCPNDT Act: According to this Act, the law enforcement agencies look into the abortion cases to find out if their motive to terminate pregnancy was based on gender identification.  It goes against the MTP act, where termination of pregnancy is not dependent upon gender of foetus.

Lack of Adequate Doctors: One of the major reason due to which there is an increase in the numbers of unsafe termination of pregnancy is lack of sufficient number of registered and trained medical practitioners.

Future Perspective

Although the mechanism for abortion in India is full of challenges and concerns still it can be improved upon through the following steps:

  • Access to safe abortion services must be strengthened by adequate infrastructure and availability of trained professionals.
  • Upper gestation limit for abortions of 20 weeks must be extended considering the issues surrounding it.
  • A parliamentary panel in 2018 has recommended permitting abortions until 24 weeks of pregnancy and allowing unmarried women to medically terminate pregnancies
  • Awareness about legality of abortion among the backward areas must be increased by campaigns and programs with the help of anganwadi infrastructure.
  • MTP must be modified and aligned with the present requirements of the citizens.
  • Draft Medical Termination of Pregnancy (Amendment) Bill shall be passed as soon as possible. It provides for :
    • Improving the scope of legal access to MTP for special category of women which includes survivors of rape, victims of incest, single women.
    • Upper gestational limit for termination of pregnancy for survivors of rape has been proposed to be increased from 20 weeks to 24 weeks.

No upper gestation limit for pregnancies diagnosed with substantial foetal abnormalities.