“Abortion” the term carries a range of moral and ethical questions, like:
Is she Pro Life or Pro choice?
Is she a murderer if she chooses to abort?
Is she Progressive or conservative?
Is she selfish or selfless?
Due to the stigma that surrounds abortions, women find it hard to figure out how they really feel about it. Abortion is not an openly debated topic and the secrecy revolving around it, makes myths flourish which puts women under serious pressure. India, as a cultural society, is eminently dominated by emotions, social face value, and close-knit families which makes it more complicated when you are urged to make a decision under pressure.
Until 1971, abortion was criminalized under section 312 of the Indian Penal Code, 1960. The section defined abortion as “Intentional Miscarriage”. This was happening mainly due to premature and induced abortions of a female fetus after sex determination test which was being carried out on a very large scale in the country. Though sex determination is illegal, much of it is attributable to male preference in the families. Abortions in very large numbers were carried out to destroy female fetuses after illegal prenatal sex determination tests only to avert the birth of a female child. This section prevented people from abortions of the female fetus by punishing the doers of such a heinous act.
It was in 1960 that abortion was legal in 15 countries which led to deliberating on a legal framework for induced abortions. To address this, the Government of India instated a committee in 1964 led by Shantilal Shah to come up with the suggestion to draft the abortion law of India. The recommendations of the committee were accepted in 1970 and introduced in parliament as the Medical Termination of Pregnancy Bill. This bill was passed in 1971, as the Medical Termination of Pregnancy Act, 1971. The implementation of this act was an unprecedented step towards giving vulnerable pregnant women discretion, the right to choose for their welfare, promoting to seek legal and medical help for carrying out the abortion in a non-life-threatening manner, and to prevent opting for non-medical and orthodox ways for abortion.
The Medical Termination of Pregnancy Act came into effect in 1971. The Union Cabinet approved amendments to the Act with a view to increasing the upper limit for termination of pregnancy from 20 weeks to 24 weeks, and therefore, for pregnancy between 20 and 24 weeks, two physicians will be required to give their opinions rather than one. This has been done by keeping in mind ‘vulnerable women, including survivors of rape, victims of incest, etc.
A national debate on amendments (increase in the upper limit for termination) required to the MTP Act, 1971 in view of the development of medical technology, dates back to 2008 when Haresh and Niketa Mehta petitioned the Bombay High Court to allow them to terminate their 26-week-old fetus, which had been diagnosed with a heart defect. Niketa ‘s intention was reasonable because in the case of fetal anomalies there is no gestational age limit set for abortion, she did not want to give birth to a seriously disabled child and witness its pain and the trauma caused to her family, are a few reasons among other factors. Prudence in such cases lies in opting for abortion because it would be crucifying the lifetime of suffering and the feeling of abnormalities that the infant will experience in its formative years when witnessing other children be able to do things normally. The MTP Act prefers to preside with the health, welfare, and life of the woman over that of the fetus in circumstances where the court has to choose between the life of a woman and the fetus, where both the lives are in danger if the pregnancy is continued with.
Section 3(2) of the Medical Termination of Pregnancy Act, 1971 states the following:
A pregnancy maybe terminated by a registered medical practitioner if the practitioner is of the opinion, formed in good faith that,
- The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental, or
- There is a substantial risk that if the child is born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
The courts upheld this section in following case laws:
- In Meers Santosh Pal & Ors vs Union of India, Pursuant to Article 32 of the Constitution of India, she approached the court seeking direction to allow her to undergo medical termination of pregnancy. She apprehended the danger to her life, having discovered that her fetus had been diagnosed with Anencephaly, a defect that leaves the fetal skull bones unformed and is both untreatable and certain to cause infants to die during or shortly after birth, thus endangering the mother’s life. In these circumstances, given the danger to her life, there is no doubt that she has the right to protect and preserve her life and, in particular, that she has made an informed choice. In those circumstances, the court considered it appropriate, in the interests of the justice and, in particular, of the petitioner, to undergo medical termination of pregnancy under the Act.
- In Sonali Kiran Gaikwad vs Union of India, the honorable court allowed the termination of pregnancy as requested by the pregnant woman. After a thorough examination by the members of the medical board, it was confirmed that the fetus had a severe congenital anomaly as both the kidneys did not function and hence were not compatible with post-birth life. She wanted to terminate the pregnancy as there was no treatment available and the child would not survive. She was under a lot of stress because of the fetal condition.
As common knowledge says, pregnancy is a couple’s affair. Since it’s an act involving two persons, shouldn’t the decision to terminate also involve the consent of both the persons. Does the consent of the husband carry weight?
In Samar Ghosh vs. Jaya Ghosh, the court ruled, “If the husband submits himself for a sterilization procedure without medical reasons and without his wife’s permission or knowledge, and likewise, if the wife undergoes tubectomy or abortion without medical reasons or her husband’s knowledge, such an act of spouse could lead to mental cruelty. It also ruled that denial of having sex with one’s partner and a unilateral decision not to have a child is both mental cruelty. Thus, it is important to state that the consent of the husband is relevant when deciding to end a pregnancy.
In Planned Parenthood v. Danforth, the Court ruled that a denial of consent by a partner would in fact veto the ability of a woman to terminate a pregnancy. Although both prospective fathers and pregnant women have an interest in the decision, only one partner’s position can prevail when the two disagree. Since the woman is already bearing the child, according to the Court, “the balance weighs in her favor,” prohibiting the husband from vetoing her decision.
Another question that arises is whether a man should be obliged to provide financial support to a child that his partner gives birth to if he would prefer to remain childless? After childbirth, the father would generally be responsible for child support payments despite his objection to bringing the pregnancy to an end. It has prompted supporters of some fathers’ rights to condemn what they see as a double standard in family planning. Advocates for the rights of fathers claim that after birth, a man should be able to determine whether he does not wish to be a father. A “financial abortion” right would require a woman to notify a prospective father when she is pregnant. The man would then be allowed to refuse financial or legal responsibility for the child if he did not want to be a father. If the child were born in spite of this, the biological father would not be legally or financially responsible for the child’s upbringing. There is actually no right to a “financial abortion,” or to opt-out of paternity. In one well-publicized case, a father in Michigan objected to child support payments when his ex-partner gave birth after he knew he didn’t want children. The court rejected his argument that, since a woman could avoid motherhood through abortion, the man had the right to disclaim responsibility for a child born against his wishes. The court saw the issue not as one of the father’s interests versus the mother’s, but as the child’s right to parental support. Once a child was born, the parents were responsible for supporting and educating the child.
In the Amendment of 2020, two major changes in the act which made the act all inclusive, are as follows:
- Under the Act, if any pregnancy occurs as a result of the failure of any device or method used by a married woman or her husband to limit the number of children, such unwanted pregnancy may constitute a grave injury to the mental health of the pregnant woman. The Bill amends this provision to replace ‘married woman or her husband’ with ‘woman or her partner’.
- Protection of privacy of a woman: The Bill states that no registered medical practitioner will be allowed to reveal the name and other particulars of a woman whose pregnancy has been terminated, except to a person authorized by any law. Anyone who contravenes this provision will be punishable with imprisonment of up to one year, or with a fine, or both.
Deaths arising from unsafe abortions are entirely preventable, provided that services are lawfully administered by licensed practitioners. Estimating unwanted pregnancies is important as many of them result in abortions. The act grants women greater reproductive rights because abortion is seen as a significant part of women’s reproductive health.