Abortion Laws in India
Current Situation:
- A married woman’s request to terminate her 26-week pregnancy is currently being heard by the Supreme Court.
- The case has reached two separate SC benches, posing significant issues about the legal framework and a woman’s right to make her own abortion decisions.
What is the case?
- The married 27-year-old mother of two boys has maintained that the pregnancy was not intended.
- She has stated that she is taking medication for postpartum depression following the birth of her second kid and that her family’s income is insufficient to afford another child.
- After speaking with the petitioner via video conference, a two-judge bench consisting of Justices Hima Kohli and B V Nagarathna approved the pregnancy termination on October 9.
- The court reasoned that an unintended pregnancy brought on by the ineffectiveness of contraceptive measures is equivalent to a forced pregnancy for whom a 24-week abortion is permitted.
- But since the baby is “currently viable,” AIIMS, Delhi, moved to the SC requesting a directive on whether foeticide—stopping the foetal heart—can be performed prior to termination.
- After the AIIMS report on October 11, the same bench could not agree on whether to authorise the abortion. As a result, the case was heard by a three-judge panel led by Chief Justice of India (CJI) D Y Chandrachud. The Bench requested a new medical report on Friday to describe the woman’s and the foetus’s conditions.
What is the abortion law?
- Three phases of pregnancy termination are permitted under the Medical Termination of Pregnancy Act (MTP Act).
- On the recommendation of one doctor, pregnancy termination up to 20 weeks is permitted.
- As an exception, and only in specific situations, the right to obtain an abortion is decided by two licenced medical professionals if a pregnancy is between 20 and 24 weeks along.
- A medical board must be established in “approved facilities” after 24 weeks, and it can only “allow or deny termination of pregnancy” in the event that there is a significant foetal abnormality.
Does the court permit termination after more than 26 weeks?
- Indeed, in a few instances. On August 21, a special Saturday session of the bench presided over by Justice Nagarathna allowed for the termination of a rape survivor’s pregnancy at 27 weeks and 3 days.
- But in this instance, the woman’s marital status appears to make a difference, suggesting that the conception was consensual and not in any way a coerced pregnancy.
- A bench presided over by Justice Chandrachud permitted an abortion in September 2022 for an unmarried woman in a consensual relationship who was 24 weeks pregnant.
- There have also been cases where the medical board’s decision to permit termination was overturned by the courts.
What about an unborn child’s rights?
- The CJI-led Bench’s remarks on Friday wavered between the notion that a woman’s rights “must trump” and the necessity of “balancing out the rights of the unborn child.”
- Without a question, our legal system is significantly superior to those of other nations, according to CJI. Our legal system is pro-choice and liberal.
- Although courts have interpreted the MTP Act broadly, India is a new country where abortion is permitted only if the threshold of “foetal viability” is met.
- The Roe v. Wade decision, handed down by the US Supreme Court in 1973 and making abortion a constitutional right, permitted abortion up until the moment of foetal viability, or the point at which a foetus may survive outside the womb.
- In 1973, foetal viability was estimated to be 28 weeks (7 months), however with advances in science, this has been lowered to 23–24 weeks.
- The law in India is criticised for giving doctors, not the woman, the authority to decide whether to end a pregnancy after 20 weeks.
- Although there isn’t a legal challenge to this part, there is a legislative gap that is indicated by the many instances in which women approach the court at the last minute.
- The Indian legal system favours a woman’s autonomy to make decisions and choices over the rights of the unborn child when it comes to reproductive rights.
- In the 2005 case of Nand Kishore Sharma versus Union of India, the Rajasthan High Court dismissed an appeal against the constitutionality of the MTP Act, arguing that it infringes upon the unborn child’s fundamental right to life.
Way Forward:
- The abortion controversy presents an ethical conundrum between pro-choice and the right to autonomy over one’s own body. In light of this, abortions performed after a particular amount of time should be performed on an individual basis in accordance with legal, ethical, and moral guidelines.
