INTRODUCTION: -There should be some rights related to reproduction in every kind to her own will.
There should be some rights related to reproduction in every kind of society. These rights mainly ensure that every female person shall reproduce according to her own will. She must have choice and control over her body. These rights are mainly governed in India by an act called Medical Termination of Pregnancy Act, 1971.
This act was passed almost 46 years ago and now it is failing on so many fronts. For an example, this act doesn’t allow a woman to have an abortion after 20 weeks of her pregnancy but according to the present medical technology, pre-natal defects could be revealed even after 20 weeks of pregnancy. In some cases, prenatal defects are discovered as late as in 27 weeks of the pregnancy or even more. Sometimes there is a risk to mother due to the pregnancy and sometimes there is a risk to a child’s life.
There are many situations in which it is declared that a child will be born with any kind of disease and not every family in India can provide a dignified life to such a child, these situations sometimes lead to illegal abortions and end in infections or sometimes even death of the mother. These things need to be sorted out and accordingly, there must be some amendments in the abortion laws of India.
Where are we now? (current laws related to abortion)
The Indian Penal Code, 1860 which primarily deals with the criminal laws of the country has made induced abortion a criminal offence under sections 312 to 316 of IPC 1860. The framers of the code have not used the word abortion but by legal interpretation, we find that voluntarily causing miscarriage would mean criminal abortion which is an offence under the code. The only exception was a medical ground like when there was a risk to the life of the mother. After this in the year 1971, the abortion laws were made liberal by enacting. The Medical Termination of Pregnancy Act, 1971 which made certain exceptions to the strict laws of the IPC. Under the MTP Act,1 pregnancy can be terminated only by registered medical practitioners and that too in good faith only and this way it permits pregnancy up to 12 weeks and from 12 weeks to 20 weeks, opinion of two or more medical practitioners is required because of many reasons. The act does not provide for termination of pregnancy after 20 weeks under any circumstances. There is no description of the term good faith under this act and thereby the discretion is in the hands of medical practitioners only. But there is a definition of 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 health; or
- There is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.the continuance of the pregnancy would involve a risk to the life
Then there is also the description of the place where the pregnancy can be terminated which is either a hospital established or maintained by government or a place for the time being affirmed with the end goal of this Act by Government
Analysis of the impact of current laws on abortion and suggestions for amendment
The 20-week limit till now mainly causes problems to those pregnant females whose pregnancy-related diseases are figured out after they have crossed the twentieth week. There are also some cases in which a person demands abortion within the 20-week limit only but due to the legal proceedings, time is wasted and hence the person crosses the limit and then abortion is not allowed. There was a case in Bombay back in 2005 where there were severe abnormalities in the foetus of a woman and when she came to know about this, she wanted an abortion as she was not ready to bear the thought that her child would suffer. The court didn’t allow abortion as she has crossed the 20-week limit and as a result, she has to give birth to her child who lived only up to the age of six. This case was examined by a doctor called Dr Nikhil Datar who said that “The child was dying in bits and pieces every day because he was born with abnormalities. The woman often visited me with her baby after delivery and the sadness in her eyes is something that I’ll never forget.2
Another case came to Dr Nikhil only where a woman was at 1:50 risk of delivering a baby with Down’s syndrome. To confirm this, she had to undergo a test called amniocentesis which confirms this fact whether a foetus has abnormality or not. Now, the complexity in the situation was that this test would take 4 weeks for the correct report and Dr Nikhil’s patient was at the threshold of completing 20 weeks which was the limit as per the MTP Act. She accordingly decided to have an abortion but when the reports of the test arrived, it was stated that her foetus was completely normal. The lady could never forgive herself and lived her life with a feeling of remorse that she had herself killed her child.
There is another case of the year 2008 where a woman called Niketa Mehta got diagnosed with a severe heart problem to her foetus but she couldn’t get an abortion as she had crossed the 20-week limit. Likewise, there was another case of a 10-year-old girl who was raped by her uncle, she was 32 weeks pregnant and her plea to abortion was rejected by the Supreme Court. She was repeatedly raped by her uncle over a period of seven months.
Like these cases, there are many other cases where females have to suffer because of this 20-week limit and this even causes a threat to their life in some situations. The centre has even put out a draft amendment related to the amendment in MTP Act in 2014 which is yet to be passed in the parliament. The MTP act was passed in 1971 when there were no ultrasounds or other such medical techniques to know a high- tech situation of the developing foetus but today medical science has advanced and there are various kinds of prenatal diagnostics because of which pregnancy-related diseases can be discovered after 20 weeks. In fact, most of the abnormalities are discovered only by the 20th to 24thweek and this exceeds the legal abortion ceiling. Dr Duru Shah, Gynaecologist, Director, Gynaec World says A lot of the kidney and brain defects manifest much later than the 20th week. Sometimes the report takes 2 to 3 weeks to come and all that doesn’t leave any window for termination.3
Twenty weeks is excessively thin a window for hereditary variations from the norm to show. Passing by the stark measurement of illicit premature births in India, the obsolete law does not prevent ladies from going oblivious to a risky quack to end an undesirable pregnancy. In a more attractive world, the administration would not sit for a considerable length of time on an enactment which keeps ladies from putting their lives in danger. Under the MTP Act, the woman has to request for an abortion, she doesn’t even have an agency over her body.
A right of a woman over her body should be respected and she must have a choice regarding her reproduction. Many developed countries which have liberal laws on abortion like India have kept the limit as 24 weeks. Now, there are many contentions by the courts and authorities in India because of which they are reluctant to increase the 20-week limit. The major reason is that increasing the limit would result in sex-selective abortion but this ground fails as medical advancements have made it possible to know the sex of the infant as ahead of schedule as 10 to 12 weeks through chorionic villus sampling (CVS), in the vicinity of 15 and 20 weeks through amniocentesis, and at 7 weeks, through another blood test that has quick picked up notoriety among medicinal practitioners in Europe, since discoveries were distributed in 2011 in The Journal of the American Medical Association.
There is another argument which takes into consideration the right to life of the child. Now, this is a point of contention that when does a foetus becomes a baby and when does its right to life begin. There are various conceptions related to this but unfortunately, there is no single acceptable answer related to this. So, there is no benchmark related to this law.
In maximum of the cases it has been said that the abortion will not be a safe procedure to be carried on and hence have declined the pleas but it has been proved by various gynaecologists that in many situations when there is a complexity involved with the foetus or the mother, the best option is abortion in all the cases. Even if abortion is risky, then also the risk level would be equivalent to or less than the pregnancy. So, in any situation Abortion is the safest thing to be carried on. In a judgement of Supreme Court of India4 on July 25, a supreme court bench which comprised of Justice J. S. Khehar and Justice Arun Mishra changed the legal landscape of the Medical Termination of Pregnancy (MTP) Act of 1971.
The case is referred to relates to a 20-year-old lady, Ms X, who cases to have been assaulted by her life partner, who backpedalled on his guarantee of marriage. Twenty a month pregnant, with a twisted baby, she had tested the 20-week top on the period at which a medicinal end of pregnancy could be executed according to the MTP Act. Ms X had tested the Act contending that the 20-week constrain was outlandish, discretionary, and damaged her entitlement to life and uniformity. Proceeding with the pregnancy, her legal counsellors contended, predicted “grave damage to her physical and psychological well-being”. Advocate General Mukul Rohatgi contended that if the mother’s life is in danger, “there is no time limit for conducting an abortion. If you have to save a life, you need to cross the limit of 20 weeks”. We have not recounted her explanations behind deferring looking for premature birth. In another case also, the Supreme Court allowed termination of pregnancy to a girl of 13 years in her 31st week of pregnancy.
The parents of the 13-year-old girl, who was raped by her father’s business partner about six months ago, filed the petition in the Supreme Court seeking permission for medical termination of pregnancy. This, after they realised she was pregnant just four weeks ago. Then her parents took her to a doctor to check whether her sudden ‘obesity’ was caused by thyroid. Sonography then showed that she was 27 weeks pregnant. Police officials claim that until that moment, she had not informed her parents about the sexual assault. Precious time was wasted because first she was admitted to a shelter home and the mother had no time to file medical documents. Later, holidays delayed the process further.
These two cases show how the court itself disregards the 20-weeks limit and takes into consideration the other factors and has allowed abortion. Like these two cases, there are many other cases where courts themselves felt the need for the amendment in the MTP Act. And in many cases where the courts gave judgement of not allowing the abortion irrespective of the threat to the life of the mother and/or foetus, the courts felt restricted only on the legal grounds whereas all other claims went in the favour of abortion. There are many cases of rapes and especially underage girls who get raped get to discover pregnancy very late and thus have to leave their life at the mercy of courts.
There are many instances where precious time is wasted in the slow legal proceedings and in some cases, the female person crosses on the 20-week limit only because of the legal proceedings and then she again has to suffer. An example of this is that of a woman from Bihar who was HIV positive and she was forced to have a baby because her paperwork stuck for 4 weeks in a government department and as a result, she crossed the 20-week limit.
The MTP Act should be amended and the twenty-week limit till now should be increased at least till a twenty-four-week limit. Most of the cases where pregnancy-related diseases are discovered relate to the women who are mainly in their twenty to twenty-four weeks of pregnancy. If the limit is increased, then most of the problem of going to courts and women crossing the limit because of legal proceedings would be solved. It would be safer for both the woman and her child. Twenty weeks is excessively tight a window for hereditary anomalies to show. Passing by the stark measurement of unlawful premature births in India, the obsolete law does not prevent ladies from going oblivious to a perilous quack to end an undesirable pregnancy.
In a more attractive world, the legislature would not sit for a considerable length of time on an enactment which keeps a woman from putting their life in dangTwenty weeks is excessively tight a window for hereditary anomalies to show. Passing by the stark measurement of unlawful premature births in India, the obsolete law does not prevent ladies from going oblivious to a perilous quack to end an undesirable pregnancy. In a more attractive world, the legislature would not sit for a considerable length of time on an enactment which keeps ladies from putting their lives in danger. Faultfinders generally premature births would state looking into the Medical Termination of Pregnancy, Act is a pointless government mediation.