ABORTION LAW IN INDIA : A CRITICAL REVIEW

Updated: Aug 26




ABSTRACT


Among issues related to reproductive health, none has more controversial connotations than abortion. Abortion is a universal phenomenon and is defined as termination of pregnancy by various methods including medical surgery before the fetus is able to sustain an independent life. Although abortion services in India were liberalized more than three decades ago, access to safe services remains limited to majority of women. This article synthesizes recent evidence on abortion scenario in India, explores the current law policy and what is still missing in it; it will also cover ‘’The medical termination of pregnancy act 1972 and regulations 1975”; it will also cover case laws regarding abortion.


INTRODUCTION


Abortion means deliberate termination of pregnancy generally performed before the first 28 weeks.Generally, if we look at traditional arguments for and against abortion, we discover legal and non secular arguments guiding each respectively. Antiabortionists, generally make a spiritual argument because the spearhead of their collective opposition to abortion.These practices have generated intense moral, ethical, political and legal debates since it’s not just a medico-technical issue but also ideological struggle in which the very meaning of the family, the state, motherhood and young women’s sexuality are contested.A person’s position on abortion could also be described as a mixture of their personal belief on the morality of abortion and ethical limit of the government’s legitimate authority is a woman’s individual rights, right to her life, to her liberty and to the pursuit of her happiness, that sanctions her right to possess an abortion. A women’s sexual health shapes her reproductive choices.In the recent year, governments from all over the world have acknowledged and pledged to advance reproductive rights to an unprecedented degree. Formal laws and policies are crucial indicators of government commitment to promoting reproductive right. Each and every woman has an absolute right to possess control over her body, most frequently referred to as bodily rights.



A WOMAN HAS RIGHT TO DO ABORTION UNDER THESE CONDITIONS:


* The continuance of the pregnancy would involve risk to the lifetime of the pregnant woman greater than if pregnancy is terminated, the termination is important to forestall grave permanent injury to the physical or mental state of the pregnant woman. *If in emergency, certified by the operating practitioner as immediately necessary to save the life of the pregnant woman or to stop grave permanent injury to the physical or mental health of the pregnant woman. *If the woman has suffered from rape, in that case also abortion is allowed. There are many more circumstances in which abortion is allowed, these are few of the them.



THE MEDICAL TERMINATION ACT 1971 AND REGULATIONS 1975


The MTP Act (No.34 of 1971) confers full protection to a registered allopathic medical practitioner against any legal or criminal proceedings for any injury caused to a woman seeking abortion, provided that the abortion was done in good faith under the terms of the Act. The act allows an unwanted pregnancy to be terminated up to 20 weeks of pregnancy and requires a second doctor’s approval if the pregnancy is beyond 12 weeks. The grounds include grave risk to the physical or psychological state of the lady in her actual or foreseeable environment as when pregnancy results from contraceptive failure or a humanitarian grounds or if the pregnancy results from a sex crime such as rape or intercourse with a mentally challenged woman or on eugenic grounds, where there is reason to suspect substantial risk that the child, if born would suffer from deformity or disease.The law allows any hospital maintained by the government to perform abortions, but requires approval or certification of any faculty in private sector.


CURRENT LAW AND POLICY WHAT IS STILL MISSING?


The requirement of a second medical opinion or a second trimester abortion further restricts access, especially in rural areas.The MTP Act mandates the state to provide abortion services at all public hospitals, however it lacks the approval for public health facilities exempts the public sector from the same regulatory processes that apply to the private sector.In the context of poor quality abortion care in the public sector, the same exacting standards should be applied as in the private sector and subject to same audit procedures that are expected of the private sector. Ironically, however the private sector in India also remains vastly unregulated and often lacks the self-discipline necessary to adhere to the quality standards specified in the law.



CASES RELATING TO ABORTION


*Dr. Rajeswari Vs State of Tamil Nadu and Others-The case, is of an unmarried girl of 18 years who is praying for issue of a direction to terminate the pregnancy of the child in her womb, on the ground that bearing the unwanted pregnancy of the child of three months made her to become unsound and therefore the continuance of pregnancy has caused great anguish in her mind, which could result in a grave injury to her mental health, since the pregnancy was caused by rape. The Court granted the permission to terminate the pregnancy.

*Dr . Nisha Malviya and Anr. Vs. State of M.P – The accused had committed rape on minor girl aged about 12 years and made her pregnant. The allegations are that the two other co-accused took this girl, and they terminated her pregnancy. So the charge on them is firstly causing miscarriage without consent of the girl. The Court held all the three accused guilty of termination of pregnancy which wasn't consented by the mother or the girl.

CONCLUSION


*There is a major gap in abortion policy in India, there is lack of explicit policy on good clinical practice and research. *National technical guidelines published in 2001 do not conform with WHO’s international guidelines and fail to ensure good clinical practice even at approved abortion facilities. *India has simply not found a way to ensure the use of improved and safer abortion practices brought about through research and continuously evolving reproductive technology.


© The People Bookmark | 2020

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