Blog Details

Author - Associate Nupur Mehrotra

Women are blessed with the gift of producing a new life. But it is very important to understand that before being a mother a woman is a human being and she should have all the rights to decide whether she wants to carry a child or not. Controversies exist in relation to the right of the mother for abortion, right of the foetus to life. If we look at the numbers of death of women due to pregnancy it would be large and scary.

Let us first understand as to what is abortion-

If we talk about the criminal law, it clearly states abortion as an intentional termination of pregnancy.

In Medical terminology abortion is describes a ‘termination of pregnancy before the foetus is capable of extrauterine life generally considered to be prior to the 20 weeks of gestation or the conceptus achieving a mass of fewer than 500 grams or a crown-rump length of 18 cm’.

There can be many reasons as to why a lady might go for abortion.-

1. Sexual activities by the teenage girls before marriage;
2. Not being financially stable and ready to handle the burden of pregnancy;
3. The decision of the parent to stop having a child after giving birth to one;
4. Unwanted Pregnancy of the sex workers;
5. Rape victim etc.

In many cases like Suchita Srivastava vs V Krishnan, it has been clearly stated that it is the fundamental right of the woman under Article 21 to choose as to whether she wants to continue with the pregnancy or not. Under many other similar cases, it has been stated the same keeping in mind the usage of Article 21 which clearly gives the rights to personal liberty, dignity and privacy.

Abortions are basically of two types- artificial abortion and natural abortion- Natural abortion includes threatened abortion, inevitable abortion’ incomplete abortion, septic abortion, missed abortion and habitual abortion. Artificial abortion can be defined as the elective termination of pregnancy prior to viability.

Indian Laws on Abortion-

• In IPC Act no 45 of 1860 act as an exception to the rule of punishment for abortion of the woman and permits to take an act of abortion if it is for the good faith of saving the life of the woman.
• Section 312 to 316 deals with the punishment pertaining to the act of illegal abortion and states the punishment of imprisonment of 3 to 7 years according to the circumstances.
• On 10th August 1971, the Medical Terminal Of Pregnancy Act was passed which has legalized the abortion. In this section 3(2) stated that the abortion should be done by the medical practitioner in good faith where there is a risk in carrying the pregnancy should be terminated within 20 weeks and should not exceed it. It also mentioned that the act should take place in only government hospitals.
• Later in 2002, the Act was Amended and in 2003 it was decentralized stating that the abortion can also take place in private hospitals following the proper guidelines. This increased access for women to use such facilities in the private sector with better pieces of equipment and advancements.
• Again in 2014, a bill was proposed to amend the MTP bill. This bill proposed that the 20 weeks gestational abortion period should be increased to 24 weeks and also all the women irrespective of their marital status should be given the right to abortion.
• In January 2018, the same bill was introduced in the Lok sabha with an addition that it should be raised to 27 in the case of the survivors of the rape.
• In 2018, the introduction of the Women’s Sexual, Reproductive and Menstrual Right Bill by Shashi Tharoor to do away with the practitioner opinion for the pregnancy cases not exceeding 12 weeks but it had no effect on the 20 weeks gestational abortion period.
• In 2019, the cased was filed at Supreme Court of India regarding the 20 weeks gestational period.
• The amendment awaits cabinet approval.

Conclusion

There are few instances where the court has given permission for abortion after 20 weeks also looking at the danger to the mother. But this does not solve the problem of the entire nation on such issues. There have to be proper enforceable laws regarding the issues so that it does not amount to a heavy task for the woman to apply to the higher court for justice which is actually her lawful right.

‘‘ A woman has a right to an abortion. It’s a decision that’s up to the pregnant woman, not up to the pope or some do-gooders or the religious right’’- BARRY GOLDWATER.