Before 1971, abortion was criminalized under Section 312. It was described as deliberately causing miscarriage. In had certain exceptions where you could save the life of the woman. Otherwise, all those part-taking in the act would be thought criminal including the woman. The tenure was 3 years in prison for the person causing the woman to abort and 7 years for the woman herself.
In the 1960s however, around 15 countries worldwide have legalized abortion. Due to the alarming increase in abortion numbers, the Ministry of Health and Family Welfare was put on alert. The Government thereby initiated a Committee in 1964 led by Shantilal Shah to come up with suggestions. In August 1971, the Medical Termination of Pregnancy Act was passed.
Here are the things you need to know about abortion laws in India:
First things first, abortion is completely legal in India. We bet that you’ve seen a multitude of ad-boards that coax you into perhaps unsafe abortions. Abortion has been legal in India since 1971 but only under 4 circumstances.
A woman cannot have an abortion by choice and is purely based on the circumstances of your pregnancy.
– In case continuation of the pregnancy poses any risks to the life of the mother or her physical or mental health
– If the foetus has any severe abnormalities
– In case the pregnancy occurred as a result of a failure of contraception (but this is only applicable to married women)
– If pregnancy is a result of sexual assault or rape
Furthermore, a woman cannot decide if she can get an abortion or not.
The doctor does. The doctor will run a set of mandatory tests to make sure at least one of the above 4 are applicable. If found true, he will go ahead with the abortion.
Also, if the abortion is to take place within the first 12 weeks of conception, the woman only needs one doctor to sign off. If she, however, exceeds the 12-week bar (from 12 to 20 weeks), she needs two doctors to sign-off.
If you are an adult, you do not need your family’s or husband’s consent.
This is one of the best parts of this abortion law. Coaxing women into getting abortions or coaxing her to give birth against her will are often problems faced by Indian women. This law protects such women from the hateful and prying hands of their family and safeguards them to do whatever they please with their bodies.
The Right also protects a woman’s privacy.
Yes, that’s true. In a benchmark judgement, the Supreme Court of India said, “A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy”.
When you compare the provisions to countries like Vatican City or Chile where abortions are completely illegal, India is at a higher standing. It also doesn’t delve into religion or schools of thought.
Yet, the idea of free choice is completely omitted from the act. The liberal act only recognizes a few situational aspects for a valid and safe abortion. Why is it that women or people with the ability to get pregnant are stripped of the right to their own bodies.
Why the 20-weeks?
As per the MTP Act, abortions can only be carried out until 20 weeks of conception. This was created when the technologies were much weaker. Such, that the gender of the foetus could only be predicted after 20 weeks. This saved women from forceful abortions and sex-selective abortions.
However, in the current times, technology has advanced mightily. The gender test can now we executed safely by the 10th or 12th week using CVS or amniocentesis.
And what about abortions post the 20-week mark. In certain cases, the foetal abnormalities and it’s dangers to the mother come to light only after 20 weeks. These cases require court approval. However, there have been many cases where the courts give judgement in the negative despite the family wanting the abortion. In February 2017, a case was turned down by the supreme court despite the risk of the 26-week-old foetus to be born with Down syndrome.
What about cases with child assault and underage rape victims? The conditions of pregnancy come in much after the 20-week bar when the child slowly develop symptoms. These children are then forced to give birth, risking both the child, the baby as well as mental health. Such cases are no rarity and in fact are rampant, such as the case of the 10-year-old who had to deliver her rapist’s child in Chandigarh last year.
Also, what inevitably becomes a problem is slow and drawn out law proceedings. A case like the 14-year-old girl in UP must be brought to light. She was raped but denied an abortion because the proceedings took 8 entire weeks, pushing her into an advanced state of pregnancy. Sadly, the girl had to marry her rapist, following ostracization from the family and society.
How do we change this?
When we talk about just the medical aspects, doctors say that aborting even until 24 weeks is absolutely safe. This is ofcourse with the reason for scientific advancement and extensive research. Many doctors even say that abortions today are much safer. It is only the law that hinders such rights from the public woman.
Many doctors have continually been voicing opinions on pregnancy and abortions. Abortion is strictly a medical and personal issue. At any point of one’s pregnancy, termination should be solely at the discretion of the woman and the doctor. A set of qualified doctors should discuss and share opinions on the safe termination, and if proven to be okay, so be it.
They have even gone ahead and vouched for a medical committee set up for the sole reason of looking into safe abortions for the woman. This will prevent lags that occur due to slow proceedings.
An amendment was proposed in the MTP Act by the Ministry of Health and Family Welfare in October 2014. The bill proposed certain very valid propositions, such as an extension of the legal abortion limit to 24 weeks.
This gives the right to legal abortion to every woman despite her marital status. It also discusses the elimination of the need for a second doctor’s sign-off beyond 12 weeks and so on.
The primary objective of the bill was not just to empower women but to reduce the number of unsafe abortions that are carried out in India (which were sadly more than the number of legal abortions as per the Abortion Assessment Project in 2000 to 2004). The draft did some rounds in the cabinets and to the Prime Minister’s office but was stalled.
What we need today is a stronger recognition of women’s agency. While 20 weeks pregnant, it is not just insensible to expect women to flock to court but also insensitive. Denial to give a woman her right to her own body, her own baby and her own mental health are all going against the rights that are supposedly available to every and all human beings in India.