Rushan Salim Suri (SIP 57)
Monika Rani (SIP 26)
Abortion is a phenomenon that has been deliberated upon since times immemorial and continues to be a topic of contention even today. This article is based on the assessment of abortion laws in India and the world. It begins with a brief introduction to abortion, historical background and status of abortion in recent times. The authors have then discussed provisions of law, landmark judgements of the courts dealing with cases of abortion. A section is devoted to the deliberate on the criticism of laws of some countries in Latin America, Asia and Europe, and the contemporary issues and criticisms associated with abortion. This article ends with a suggestion of giving due importance to providing safe abortion to those who need it, keeping in mind its impact on society at large.
Abortion, Women, Foetus, Rights, Illegal.
“There is no freedom, no equality, no full human dignity and personhood possible for women until they assert and demand control over their own bodies and reproductive process…The right to have an abortion is a matter of individual conscience and conscious choice for the women concerned.”
Abortion is the process of terminating a pregnancy by removing the embryo, foetus, and placenta from the uterus using medications or surgery, which is performed by a certified health professional.(1) By the end of nineteenth century, abortion as a practice was restricted in many countries of the world, including the imperial European countries Britain, France, Portugal, Italy, among others, which imposed restrictions on abortion on their colonies as well. Abortion has to be considered as an issue of priority of women, as it has a direct impact on their right to life, liberty, and choice to reproduce or not. Women’s rights, their wellbeing, sexuality, fertility and reproduction considerations have seldom been taken into account in the formation of policies related to abortion and since abortion is not only a medical-technical issue, these practices have sparked moral, ethical, social and political arguments.(2) It is thus a sensitive issue as it hinges on the issue of life and death of a woman and her unborn child.
Historically, abortion was considered as sin or a form of transgression of morality, and the laws were intended to punish and act as a deterrent. This view was strongly advocated by the Roman Catholic Church, where Pope Sixtus V in 1585 declared abortion to be homicide regardless of the stage of pregnancy.(3) Afterwards, it was restricted to be allowed only to protect foetal life in some or all circumstances. Another aspect was the safety of abortions in the past, as most women undergoing abortion died as a consequence. Hence, abortions risked women’s lives and were deemed dangerous, and the laws restricting abortions sought to protect such women. However, with the passage of time, abortion and its methods have become safe, and countries like Soviet Russia (1919), Iceland (1935), and Sweden (1938) were among the first countries to legalize certain or all forms of abortion(4), and thus laws against abortion made sense only for deviant and deterrent purposes.
ABORTION LAWS IN INDIA
In India, until 1971, abortion was criminalised except where it was done to save the mother’s life. Section 312(5) of Indian Penal Code (IPC) defined it to be ‘intentionally causing miscarriage’, and carried a punishment of up to 3 years (and/or with fine) for those carrying out abortion, and up to 7 years along with fine for the woman seeking abortion. In 1971, The Medical Termination of Pregnancy Act (MTP Act) was passed, which was the first comprehensive law for abortion in India. It broadened the scope of legalised abortions and Section 3 of the Act(6) permitted abortions where continuance of pregnancy would risk the life of the woman, or her physical or mental health (this includes cases of rape, or where contraceptives failed to work); or if there is a risk that the child will be born with physical or mental abnormalities, in two categories:
- up to 12 weeks of pregnancy, with the opinion of one medical practitioner and;
- up to 20 weeks of pregnancy, with the opinion of two medical practitioners.
The MTP Act was hailed to be a progressive piece of legislation as it recognised victims of rape and failure of contraceptives; however, it was not without its criticisms(7). Firstly, the Act failed to recognise the fact that with advancement in medical science and technology, foetal abnormalities may develop even after 20 weeks of pregnancy, and women seeking abortions in such cases have to face a legal hurdle, and it violates their reproductive rights, as beyond 20 weeks, only courts can allow pregnancy, taking into account the opinion of a medical board. Secondly, the Act provides that in cases of minor, pregnancy can be done only with the consent of her guardian. The guardian, due to social stigma attached to pregnancy may not allow pregnancy to take place, causing extreme agony to the minor, and in extreme cases, resulting in her death also. Thirdly, the Act does not recognise the rights of unmarried women to get abortion in cases of failure of contraceptive devices.(8)
To deal with such criticisms, the MTP Act was amended in 2002, but the most recent amendment was done in 2020, and the MTP Act, 2021(9) came into force on 25th March 2021. It increased the gestational limit to 20 weeks for abortion with the opinion of one medical practitioner (up from earlier 12 weeks), and 24 weeks for abortion with the opinion of two medical practitioners, with the conditions being the same as the earlier act. Such provision will uphold the reproductive rights of women, and also will prove to be beneficial in cases where foetal abnormality may arise after 20 weeks of pregnancy. Significantly, the new Act recognises the rights of unmarried women to get abortion in cases of failure of contraceptive devices. Also, the new Act protects the privacy of the woman getting abortion, in line with the Supreme Court’s Judgement in K.S. Puttuswamy case, and was hailed as a progressive provision.
An important aspect of Abortion laws are the Landmark Judgements, passed by the Supreme Court and High Courts, also known as Judicial Precedents. The first such judgement was in the case of K.S. Puttuswamy v. Union of India(10), famously known as the Privacy Judgement, in which the court included abortion as part of one’s Right to Privacy and held, “A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy”. This was done while upholding the judgement in another landmark case of Suchita Srivastava v. Chandigarh Administration(11), where the court held that “a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution”. Other than this, the Supreme Court and High Courts on various occasions have allowed the abortion after more than 20 weeks of pregnancy, before the MTP Act, 2021 came into force and even after more than 24 weeks, in cases where the foetus had various medical conditions and anomalies, resulting in a high risk to the foetus and the mother. The Courts relied upon the opinion of a Medical Board constituted to determine the substantial foetal abnormalities, whether abortion can be done at this advanced stage of pregnancy and whether such abortion, if carried out will have what kind of impact on the woman or minor, as the case may be. A few of such cases, where the court allowed abortion were Mrs. X v. Union of India (22 weeks)(12), Tapasya Umesh Pisal v. Union of India (24 weeks)(13), Meera Santosh Pal v. Union of India (23 weeks)(14), Mamta Verma v. Union of India (25 weeks)(15), among others.
ABORTION LAWS IN OTHER COUNTRIES
Abortion laws differ significantly from country to country and have evolved through time. Such laws range from allowing abortion on request, to regulating or restricting abortion based on circumstances, to complete prohibition in all circumstances.
Let us discuss abortion laws of three countries: El Salvador, Vatican City and Poland. El Salvador in Central America is a country where the law on abortion has been through many changes as it allowed abortion to be performed under some limited circumstances, but, in 1998, all exceptions were removed, and abortion was outlawed.(16)
In the world’s smallest country, Vatican City, abortion remains illegal due to the operation of the Cannon Law of the Roman Catholic Church as provided in its Catechism, according to which any abortion procedure is morally unacceptable.(17)
In Poland, abortions are legal only in the cases of a threat to the mother’s life or health. While earlier, abortion could also be done if there is a foetal abnormality but in 2020, the Constitutional Tribunal of Poland, the forum adjudicating on the Polish Constitution declared the law authorising abortions for foetal abnormality to be unconstitutional, effectively banning most abortions carried out in Poland. About 100,000 people and pro-abortion advocates protested against this ruling.(18) Despite large-scale protests, as of May 2021, the ruling remains in force.
What is common in the three countries mentioned above is that abortion is illegal, and as such, it is a gross violation of internationally recognised rights, such as the right to health, life, liberty, and physical integrity(19), because it denies women the ability to regulate their bodies and obtain reproductive health services that would allow them to lead healthy lives.
CONTEMPORARY ISSUES RELATING TO ABORTION
While abortion as an issue remains a major concern around the world, there are certain issues which need attention, the first being the issue of unsafe abortion, which comprises a major number of abortions done in the world, mostly in developing countries like India. A 2015 study in the India Journal of Medical Ethics(20) noted that 10-13% of maternal deaths in India are due to unsafe abortions. This issue becomes more daunting, when coupled with the ravages caused by COVID-19, a policy paper by Popular Foundation of India(21) found that the pandemic is likely to result in increased pregnancies, and a resultant increase in population as well as unsafe abortions, given the lack of access for women to the government’s reproductive health schemes during this period. On an earlier occasion, such view was also forecasted by the UNICEF in a report.(22)
Another issue is that in some countries, abortion is not only illegal but also carries punishments, usually in the form of incarceration. Such criminalization of abortion contributes to unsafe abortion methods, a lack of medical accountability, and discourages women from seeking post-abortion care. Another aspect to it is that while abortion as a whole remains illegal, it promotes the growth of an underground and discreet industry to develop, which not only resulting in a lack of control and regulation(23) but also that clandestine abortion providers are able to operate without being held accountable for the health of their patients.(24)
Thus, it is important that abortion, as a procedure as well as a policy decision be made women centric, which respects and recognizes the individual autonomy and rights of a woman over her body. In India, such is not the case as mostly, abortion is based on circumstances and not choice, and it is the will (“opinion” in law) of the doctor that ultimately decides whether abortion will take place or not. At the same time, the importance of appropriate counselling measures cannot be ignored which are to be adopted while dealing with cases where abortion is to take place due to certain specific reasons like rape, incest, failure of contraceptives, etc. Lastly, access to safe abortion is the need of the hour, and apart from the fact that abortions should be safe, it should also be accessible to those who need it, keeping in mind the recommendations and guidelines of the World Health Organisation in this regard. Abortion should be dealt with utmost care and importance as it carries the weight of having a detrimental effect on the society at large, if dealt with otherwise.