Editorial

Source: Hindustan Times

Introduction

• Abortion is legal in India from year 1971 under specific circumstances.
  • These circumstances include the risk to the life of the pregnant woman, a threat to her physical or mental health, the risk of the child being born with physical or mental abnormalities, and pregnancies resulting from rape or contraceptive failure.
• Abortion laws in India have undergone significant transformations over the years, reflecting the complex interplay of societal values, medical advancements, and evolving perspectives on reproductive rights.

What is the Historical Background?

• The journey of abortion laws in India can be traced back to the colonial era.
• The British-era Indian Penal Code, 1860 (IPC) criminalized abortion, considering it a serious offence except when done to save the life of the mother.
• Abortion was not legal in India until 1971 when the Medical Termination of Pregnancy Act, 1971 (MTP Act) was enacted, marking a turning point in the legal stance on abortion.
• However, Section 312 of IPC still criminalizes causing miscarriage, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman.

What is the Current Scenario?

• The debate on abortion laws in India extends beyond medical and legal considerations.
• At its core, it involves questions of reproductive autonomy and women's rights.
  • The right to make decisions about one's own body is fundamental, and restrictions on abortion can be seen as impinging on this autonomy.
• Recently, a woman suffering from post-partum depression sought permission of SC for abortion of foetus of 6 months.
  • The SC opinion is divided where the issue is whether the foetus has right to survive independently of the mother or not.
  • Justice Hima Kohli and Justice BV Nagarathna have referred the question to be decided by a 3-judge bench led by Chief Justice of India D Y Chandrachud.

What is MTP Act?

• About:
  • The MTP Act was enacted to provide a legal framework for the termination of pregnancies and to address the health risks associated with unsafe abortions.
  • The act allowed for the termination of pregnancies up to 20 weeks under specific conditions, such as when the pregnancy poses a risk to the mother's life or physical or mental health, in cases of fetal abnormalities, and if the pregnancy is a result of rape or contraceptive failure.
  • The Act contains 8 Sections and mentions that pregnancy can be terminated by a registered medical practitioner.
• Termination of pregnancy by a person who is not a registered medical practitioner is a punishable offence.
• Criticism:
  • The 20-week limit, however, has been a subject of debate.
  • In recent years, there have been calls to extend the gestational limit, especially in cases where fetal abnormalities are detected later in pregnancy.
  • Advocates argue that extending the limit would allow women more time to make informed decisions about their pregnancies.

What is MTP Amendment Act, 2021?

• In 2021, the Indian government took a significant step by introducing amendments to the MTP Act.
• The proposed amendments sought to increase the gestational limit for abortion from 20 to 24 weeks, providing women with more flexibility in making reproductive choices.
• It provided benefits of the statute to all women, including single and unmarried women.
• Along with the Amendment Act, the Central government also notified MTP, (Amendment) Rules, 202
  

What are Landmark Cases under MTP Act?

• Suchita Srivastava v. Chandigarh Administration (2009):
  • The Supreme Court held that the right to terminate pregnancy conferred to women under the MTP Act relates to the Constitutional right of women to make reproductive choices under Article 21 of the Constitution of India, 1950.
• High Court on its Own Motion v. State of Maharashtra (2018):
  • The Bombay High Court appropriately determined that forcing a woman to proceed with an undesired pregnancy infringes upon her bodily autonomy, increases her emotional distress, and adversely impacts her mental well-being due to the immediate societal, financial, and other repercussions associated with the pregnancy.
• XYZ v. State of Maharashtra (2021):
  • The Bombay HC allowed a 26^th-week pregnant woman to abort considering her socio-economic condition, and the impact of the continuation of pregnancy on her mental health.
• X v. Principal Secretary, Health and Family Welfare, Govt of NCT Delhi (2022):
  • The SC court gave the right to all women to terminate their pregnancy under the MTP Act, 1971 within 24 weeks of pregnancy.