Date : 18/10/2023

Relevance: GS Paper 2- Social Justice - Health

Keywords: The Medical Termination of Pregnancy Amendment Act 2021, Legal frameworks, gestational limit, reproductive choice, ambiguity,

Context-

The spotlight is once again on abortion laws in India as a married woman, 26 weeks pregnant, has approached the Supreme Court seeking permission to terminate her pregnancy due to post-partum depression and other health issues. The case has ignited a pro-life versus pro-choice debate, highlighting the complex legal and ethical issues surrounding abortion in the country. In this comprehensive article, we will explore the Medical Termination of Pregnancy Amendment Act, the specific case in question, the global trend in abortion laws, the arguments presented by Supreme Court judges, the legal status of a fetus, and the way forward.

Historical Background:

• Prior to the 1960s, abortion was considered illegal in India, and individuals, including women, could face penalties of up to three years of imprisonment and/or fines according to Section 312 of the Indian Penal Code (IPC).
  In the mid-1960s, the Indian government established the Shantilal Shah Committee, led by Dr. Shantilal Shah, to examine the issue of abortions and determine whether India should enact legislation to address it.
• Based on the recommendations of the Shantilal Shah Committee, a bill regarding medical termination of pregnancy was introduced in both the Lok Sabha and the Rajya Sabha. This bill was subsequently passed by the Indian Parliament in August 1971.
• The Medical Termination of Pregnancy (MTP) Act of 1971 officially came into effect on April 1, 1972, and it applied to all of India except for the state of Jammu and Kashmir.
• It's important to note that Section 312 of the Indian Penal Code, dating back to 1860, criminalizes the voluntary "causing of miscarriage," even when the miscarriage is carried out with the consent of the pregnant woman. However, an exception is made when an abortion is necessary to save the life of the pregnant woman. This means that both the woman herself and any other individual, including a medical practitioner, could be subject to prosecution for their involvement in an abortion.

The Medical Termination of Pregnancy (MTP) Amendment Act 2021

The MTP Act of 1971 governs the termination of pregnancies in India, but it underwent a significant amendment in 2021. The new amendment brought several changes to the existing law, aimed at expanding women's access to safe and legal abortion. Here are the key provisions of the MTP Amendment Act 2021:

1. Opinion of Medical Practitioners: According to the new law, the opinion of only one registered medical practitioner is required for the abortion of a fetus up to 20 weeks of gestation. For pregnancies between 20 to 24 weeks, the termination requires the opinion of two registered medical practitioners.
2. State-Level Medical Board: In cases of suspected fetal abnormalities, abortions over 24 weeks gestation require the opinion of a state-level medical board.
3. Increased Gestational Limit: The amendment increased the upper gestational limit for special categories of women, including survivors of rape, victims of incest, differently-abled women, and minors, from 20 to 24 weeks.
4. Confidentiality Clause: The new law introduced a confidentiality clause to protect women's privacy. It prohibits the disclosure of a woman's identity and other particulars related to her abortion unless authorized by law.
5. Access for Unmarried Women: The amendment extended MTP services for unmarried women, ensuring access to safe abortion based on a woman's choice, irrespective of her marital status.

The Case of the 26-Week Pregnant Woman

A married woman, 26 weeks pregnant with two other children, approached the Supreme Court seeking permission to terminate her pregnancy. She cited her inability to take care of the child due to post-partum depression and other health issues. The Supreme Court initially agreed to her plea, but a two-judge Bench later delivered a split verdict. Justices Hima Kohli and B.V. Nagarathna differed on whether the abortion could proceed after a report from the All India Institute of Medical Sciences (AIIMS) indicated that the fetus was viable and had a heartbeat. Aborting it at this stage would either stop the heartbeat or lead to premature delivery with potentially severe complications for the child. The case was then referred to a larger Bench headed by the Chief Justice of India, which emphasized the rights of the unborn child, sparking a pro-life versus pro-choice debate.

Global Trends in Abortion Laws

Globally, there has been a trend toward the liberalization of abortion laws and increased access to abortion services. Over the past few decades, nearly 60 countries have eased abortion laws, expanding the legal grounds for abortion. Only a few countries, such as the United States, El Salvador, Nicaragua, and Poland, have tightened abortion laws during this period. Notably, the U.S. Supreme Court eliminated the constitutional right to abortion in 2022, further intensifying the abortion debate.

Supreme Court Judges' Split Verdict and Legal Interpretations

The two-judge Bench, comprising Justices Kohli and Nagarathna, first allowed the woman to end her pregnancy but later differed on the decision after the AIIMS report revealed the need to stop the fetal heart. Justice Kohli expressed concerns about stopping the heartbeat of a fetus with life. At the same time, Justice Nagarathna upheld the petitioner's determination to not proceed with her pregnancy, which fueled the pro-life versus pro-choice debate. The petitioner argued that her request was based on her rights under Article 21, which protects life and personal liberty and overrides the MTP Act.

The Legal Status of a Fetus

The legal status of a fetus in India remains ambiguous. Dr. Arathi P.M., Assistant Professor at the School of Indian Legal Thought, Mahatma Gandhi University, Kerala, asserts that the Indian legal framework does not definitively define whether a fetus is a living being. She argues that the pro-choice discourse may not be a politically conducive argument for Indian society, given the limitations of the public health system and the high cost of private healthcare, making safe abortions precarious in the country.

Observations by the Chief Justice of India-Headed Bench

On October 12, the Supreme Court, led by the Chief Justice of India, urged the woman to reconsider her decision to terminate the pregnancy and carry the fetus for a few more weeks to avoid potential deformities. The Bench emphasized the rights of the unborn child and the importance of a woman's autonomy, aiming to strike a balance between the two.

The Way Forward

The petitioner's counsel and the Additional Solicitor General have both highlighted the woman's unwillingness to continue her pregnancy, even after the AIIMS report. The Supreme Court directed the AIIMS medical board to examine the fetus for abnormalities and assess the woman's health status, considering her reported depression and post-partum psychosis. The government has also offered to take care of the child and facilitate adoption if the woman agrees to carry the pregnancy to full term.

Conclusion

The case of the 26-week pregnant woman in India has brought abortion laws into the spotlight, raising complex legal and ethical questions. The recent MTP Amendment Act has expanded the rights of women, but the case demonstrates the challenges in balancing the rights of the unborn child and a woman's autonomy. As the Supreme Court continues to deliberate, it remains to be seen how this case will influence the broader landscape of abortion laws in the country and shape the ongoing pro-life versus pro-choice debate.

India's legal framework on abortion is largely considered progressive, especially in comparison to many countries including the United States where abortion restrictions are severely restricted — both historically, and at present.

Further, there is a need for a serious rethink in public policy making, also accommodating all the stakeholders to focus on women and their reproductive rights, rather than drawing red lines that medical practitioners cannot cross while performing abortions.

Source- The Hindu