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The right to life is the most fundamental and broad concept of all. In India, right to life has been recognised under Article 21 of the Constitution which states that "No person shall be deprived of his life and personal liberty except according to procedure established by law". Persons in this context include both men and women. Among the many rights available to women, the right to abortion is regarded as one of the most important. However, there is an ongoing debate on the question of whether an unborn child should be considered a human being and be given the status of a person.

The issue of the right to abortion is governed by a variety of factors, including religious beliefs, ethical principles, moral values, and legal considerations. Although abortion is widely condemned by most religions, the question of whether a mother has the right to terminate a pregnancy or if the fetus has the right to life remains a contentious issue. Ronald Dworkin conducted extensive research on the topic of abortion and argued that a fetus does not have interests before the third trimester. A fetus cannot feel pain until late in pregnancy, because its brain is not sufficiently developed before then. Researchers concur that the fetal brain is not developed enough to experience pain until around the twenty-sixth week of pregnancy.

Medical Termination of Pregnancy (MTP) Act:

The Medical Termination of Pregnancy Act, 1971 permits legal abortions in India. Originally, the act provides that abortions up to 12 weeks of pregnancy must be approved by one registered physician, and that the approval of two physicians is required for abortions up to 20 weeks. The Act was amended in 2021, which introduced the following key changes to the original act of 1971:

l  The amendment raises the upper limit of gestation from 20 to 24 weeks for certain groups of women, including survivors of rape and incest, vulnerable individuals such as differently-abled women and minors, and others.

l  The amendment permits abortion upon the recommendation of one doctor for pregnancies up to 20 weeks and the recommendation of two doctors for pregnancies between 20 and 24 weeks for certain categories of women.

l  The amendment stipulates that the upper limit of gestation shall not apply in instances of significant fetal abnormalities as determined by a Medical Board. Such pregnancies may be terminated beyond 24 weeks of gestation, and this decision can only be made by the Medical Board established in each state under the Act.

l  No registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force. Whoever contravenes this will be punishable with imprisonment which may extend to one year, or with fine, or with both 

Provisions related to miscarriages in Indian Penal Code:

Indian Penal Code, 1860 (IPC) contains several provisions regarding miscarriages.

Section 312 of the IPC states that "whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

Section 313 of IPC provides that whoever commits miscarriage without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Landmark Judgments:

In the case of X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, C.A 5802/2022, the Supreme Court has dismissed the distinction between married and unmarried women as criteria for terminating a pregnancy as it is ‘artificial and constitutionally unsustainable’. Both married and unmarried women are entitled to seek abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship. The court also held that ‘the rights of reproductive autonomy give unmarried women similar rights as married women’ and noted that the meaning of the term ‘rape’ under the Medical Termination of Pregnancy Act has to include marital rape. "Article 14 requires the state to refrain from denying to any person equality before the law or equal protection of laws. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14." the Apex Court observed.

In Suchita Srivastava and Anr. vs. Chandigarh Administration, Civil Appeal No.5845 of 2009, the Hon'ble Supreme Court observed that "there is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.”

In the case of Meera Santosh Pal v. Union of India,Writ Petition (Civil) No.17 Of 2017, the petitioner, who was pregnant with a fetus diagnosed with Anencephaly, approached the Supreme Court under article 32, seeking permission to terminate the pregnancy of 24 weeks due to the danger it posed to her life. The Medical Board confirmed that the fetal condition was not compatible with extra-uterine life and continuation of the pregnancy could gravely endanger the physical and mental health of the petitioner. The court observed that 'a woman's right to make reproductive choices is also a dimension of personal liberty as understood under Article 21 of the Constitution.' and ultimately allowed the termination of the pregnancy, noting that the right to bodily integrity and preserving the life of the petitioner outweighed the inability of the fetus to survive.

In the recent case of MRS. X v. GNCTD & ANR. W.P.(C) 16607/2022, the Delhi High Court allowed a 26-year-old married woman's plea seeking medical termination of her foetus of over 33 weeks suffering from cerebral abnormalities. "In conclusion, the Court holds that the ultimate decision in such cases ought to recognize the choice of the mother, as also, the possibility of a dignified life for the unborn child. Keeping in mind these two factors, the Court comes to the conclusion that the mother’s choice is being made in a completely bona fide manner. There is considerable doubt and risk involved in the unborn child’s chances of leading a dignified and self-sustaining life, based upon the medical evidence and reports. Considering this position, this Court holds that the medical termination of pregnancy ought to be permitted in the present case." the Delhi High Court observed.

References:

https://www.orfonline.org/expert-speak/amended-abortion-rights-in-india/

https://www.clearias.com/abortion-laws/

https://www.mondaq.com/india/personal-injury/1256112/upholding-decisional-autonomy-of-termination-of-pregnancy--the-apex-court-leads-the-way-

https://manupatra.com/roundup/373/Articles/PRESENTATION.pdf

https://www.livelaw.in/news-updates/delhi-high-court-medical-termination-of-pregnancy-215903?infinitescroll=1