Abortion, according to Merriam Webster is "the termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo and foetus”
Quranic View on Abortion
The Holy Quran speaks about Abortion in Surah Anam Ch. 6 : V. 151 as well as Surah Isra Ch. 17 : V. 31 “...kill not your children for want of sustenance on a plea of want;- We (Allah) provide sustenance of you and for them..”
But Quran when read in toto makes it clear that in order to avoid a greater loss a lesser loss can be borne. Therefore, in order to protect the life of the mother or similar reasons of urgency, abortion is not prohibited.
Hinduism on Abortion
Texts (Vedas, Upanishads, etc) are strongly opposed to abortion:
-one text compares abortion to the killing of a priest
-another text considers abortion a worse sin than killing one's parents
-another text says that a woman who aborts her child will lose her caste.
BBC (Hinduism and Abortion)
ROME AND GREECE
Abortion was accepted in both ancient Rome and Greece.
'...when couples have children in excess, let abortion be procured before sense and life have begun; what may or may not be lawfully done in these cases depends on the question of life and sensation.'
- Aristotle, Politics 7.16
INDIA AND ABORTION
The Indian Penal Code 1862 and the Code of Criminal Procedure 1898, with their origins in the British Offences against the Person Act 1861, made abortion a crime punishable for both the woman and the abortionist except to save the life of the woman.
The period of 1960s and 70s saw liberalisation of abortion laws across Europe and the Americas which continued in many other parts of the world through the 1980s. In India the liberalisation began in 1964 in the context of high maternal mortality due to unsafe abortion. Doctors were coming across gravely ill or dying women who had taken recourse to unsafe abortions carried out by unskilled practitioners.This made them realise that the majority of women seeking abortions were married and under no socio-cultural pressure to conceal their pregnancies and that decriminalising abortion would encourage women to seek abortion services in legal and safe settings.
SHANTI LAL SHAH COMMITTEE
The Shah Committee, appointed by the Government of India, carried out a comprehensive review of socio-cultural, legal and medical aspects of abortion, and in 1966 recommended legalising abortion to prevent wastage of women’s health and lives on both compassionate and medical grounds.
According to the report, in a population of 500 million the number of abortions per year will be 6.5 million 2.6 million natural and 3.9 million induced.
Although some States looked upon the proposed legislation as a strategy for reducing population growth, the Shah Committee specifically denied that this was its purpose. The term “Medical Termination of Pregnancy” (MTP) was used to reduce opposition from socio-religious groups averse to liberalisation of abortion law. The MTP Act, passed by Parliament in 1971, legalised abortion in all of India except the states of Jammu and Kashmir.
The Medical Termination of Pregnancy Act 1971 and Regulations 1975
The Preamble of the Act states the purpose of the legislation and provides for the termination of certain pregnancies by the registered Medical Practitioners and for matters connected therewith and incidental thereto.
The MTP Act in India is founded on the principles of the British act passed by its parliament in 1967. The Act under Clause 2 of Section 3 states that a pregnancy can be terminated where the length of the pregnancy does not exceed twelve weeks; or where the length of pregnancy exceeds twelve weeks but does not exceed twenty weeks, when not less than two registered medical practitioners allow for the same based on other circumstances.
The law creates an exception in the event of abortion to save a woman’s life, the doctor need not have the stipulated experience or training but still needs to be a registered allopathic medical practitioner, a second opinion is not necessary for abortions beyond 12 weeks and the facility need not have prior certification.
It also allows any hospital maintained by the Government to perform abortions, but requires approval or certification of any facility in the private sector.
In the event of abortion to save a woman’s life, the law makes exceptions. The doctor need not have the stipulated experience or training but still needs to be a registered allopathic medical practitioner, a second opinion is not necessary for abortions beyond 12 weeks and the facility need not have prior certification.
The Medical Termination of Pregnancy Rules and Regulations 1975, define the criteria and procedures for approval of an abortion facility, procedures for consent, keeping records and reports, and ensuring confidentiality. Any termination of pregnancy done at a hospital or other facility without prior approval of the Government is deemed illegal and the onus is on the hospital to obtain prior approval.
ABORTION LAW REFORM
The 2002 Amendment to the MTP Act was done to Section 4 and 5 of the Act.
Section 4 was substituted for a new section while Section 5 was amended.
The new Section 4, highlighted that if the place of termination of pregnancy is other than a hospital maintained by the Government i.e. a place for the time being approved for the purpose of pregnancy, it shall be approved by the Government or a District Level Committee constituted by that Government with the Chief Medical Officer or District Health Officer as the Chairman of the Committee. It further mentions that the District Level Committee shall consist of not less than three and not more than five members including the Chairman.
This was done to reduce the bureaucracy for obtaining approval of facilities.
The amended Section 5 stated that if a person not being a medical practitioner carries out termination of a pregnancy he shall be guilty of an offence in this case. Also, any person not being a medical practitioner commits similar acts at any other place shall also be punished. The owner of a place where termination of pregnancy and which is not approved by Section 4 (b) shall also be punished under the amended section.
The amended MTP Rules also recognise medical abortion methods and allow a registered medical practitioner to provide mifepristone + misoprostol in a clinic setting to terminate a pregnancy up to seven weeks, provided that the doctor has either on-site capability or access to a facility capable of performing surgical abortion in the event of a failed or incomplete medical abortion. However, the Drug Controller of India has approved mifepristone provision only by a gynaecologist, thus effectively restricting access to women in urban areas. National consensus guidelines and protocols for medical abortion are currently being developed.
INDIAN JUDICIARY ON ABORTION, a bird’s eye view
The two judge Apex Court reversed The Hon’ble High Court of Gujarat’s order, in the case of Chandra Kant versus State of Gujarat 2015and allowed a 14 year old rape survivor to terminate her 23 week old foetus if it is necessary to save her life.
The bench of Apex Court was held by Hon’ble Justices Anil Dave and Kurian Joseph.termination citing the 20 weeks bar on termination mentioned in MTP Act 1971.
The High Court of Kerala allowed a petition seeking termination of termination of more than 20-week pregnancy of a rape victim.
Invoking Section 5 of the Medical Termination of Pregnancy Act, 1971, the court observed: “She did not expect such conduct and behaviour from the person with whom she maintained an intimate and affectionate relationship. The circumstances narrated will show, she is and was not mentally prepared to accept the state of affairs at which she is now.”
The Karnataka High Court allowed a 24 year old woman to terminate her 31-week pregnancy after it was found that the foetus had multiple abnormalities.
The woman was in her second pregnancy. She underwent anomaly scan at the time of 29th week of her pregnancy, for the first time, foetal abnormalities were found and the doctor observed in the said report that due to multiple abnormalities the risk for chromosomal abnormalities in particular Trisomy 21 has significantly increased. Therefore surgery was required as soon as the baby was born.
The Karnataka High Court allowed a plea filed by a 32-year-old woman seeking to terminate her 25 week pregnancy, due to anomalies in the foetus.
The ultrasound scan of the foetus revealed Congenital Pulmonary Airway Malformation with evolving Hydrops and Polyhydramnios.
The Doctors had also opined that the baby would not survive on delivery and therefore the pregnancy has to be medically terminated.
A Division Bench of the Rajasthan High Court has upheld the notion that the reproductive choice of a woman is a fundamental right encompassed under the umbrella of Article 21 of the Constitution of India.
It also held that right of child rape survivor to make any reproductive choice outweighs the right of the unborn child to be born, even in cases where pregnancy is at an advanced stage.
CHALLENGES WITH THE OLD LAW
*A decision to terminate a pregnancy, as provided by existing laws, is the right of the women but as per the act abortion can only be provided at the discretion of a medical practitioner.
*In cases of child victims, pregnancy is known to the guardians generally post 20 weeks.
*56% abortions in India are unsafe and 10 women die due to it everyday.
*Only 22% abortions take place in were obtained in health facilities.
To address this, the draft MTP (Amendment) Bill 2014, presented by the Central government for public opinion, had proposed expanding the abortion provider base to include nurses and AYUSH practitioners. But sadly, this key clause has been omitted in the final amendments.
Proposed Amendment to the MTP ACT
The Bill ‘Medical Termination of Pregnancy Bill 2020’ was passed by the Lok Sabha on 17th March 2020 to amend section 3 of MTP Act, 1971.
FEATURES of the Bill:
*The Bill under Section 2 (e) defines, "termination of pregnancy" means a procedure to terminate a pregnancy by using medical or surgical methods
*The amendment bill seeks to increase the upper limit for termination of a pregnancy from 20 weeks to 24 weeks in case of such category of woman where any pregnancy is alleged by the pregnant woman to have been caused by rape.
*It proposes the requirement of opinion of one registered medical practitioner (RMP) for termination of pregnancy up to 20 weeks of gestation.
*It also provides for the requirement of opinion of two RMPs for termination of pregnancy of 20 to 24 weeks.
*For unmarried women, the Bill seeks to relax the contraceptive-failure condition for “any woman or her partner” from the present provision for “only married women or her husband”, allowing them to medically terminate the pregnancy.
IMPORTANCE OF THE AMENDMENT
*A study by Lancet Global Health states, out of 15.6 million abortions occurred in India in 2015, 78% were carried outside health facilities.
*3·4 million abortions (22%) were obtained in health facilities.
*Unsafe abortions is the third- leading cause of maternal deaths in India.
Therefore, this Amendment would act as a milestone.
Reproductive rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children.
Studies show that the risk involved in terminating the pregnancy in the 28th week is no greater than the risk involved in the 20th week. Therefore, the period for allowing MTP could have been more than 24 weeks. Nepal allows abortion upto 28 weeks in case of rape, HIV etc.
There are 59 countries that allow abortion “without restriction as to reason,” or “elective,” or “abortion on demand.” Only seven of the 59 countries allow elective abortions after 20 weeks, the group found: Canada, China, Netherlands, North Korea, Singapore, the United States and Vietnam. (Washington Post 2017/10/09)
Also, the Hon'ble Supreme Court in the case of the case of Suchita Singh vs Chandigarh Administration, 2009 that to procreate or abstain from procreating is a woman's right to privacy, dignity and bodily integrity that should be respected, "the right to make reproductive choices is is also a dimension of personal liberty as understood under section 21 of the constitution of India". Though the amendment to the MTP Act is a step in the correct direction but the MTP Laws in India are far from ideal for women.