May 30,2022 | 5 min read

Legality of Abortion in India | Lawyered's Take

Introduction:

The term ‘Abortion’ put in terms means ‘removal or expulsion of the fetus or embryo from the uterus, resulting in the death of the embryo”. This can be either artificially induced through chemical or surgical or can be a result of a spontaneous miscarriage. Generally, abortion is the artificially inseminated procedure during the early termination of pregnancy which results in aborting the embryo in the uterus of the mother. Medically, it is allowed to terminate the pregnancy before 20 weeks gestation, which also became legal in the year 1971. The Medical Termination of Pregnancy Act, 1971, provides for the termination of certain pregnancies by registered medical practitioners. In spite of having a law in place for the medical termination of pregnancy, many women still are unaware of their right to terminate the pregnancy and choose to have unsafe abortions outside of the formal medical healthcare system.

Women have full autonomy over their bodies, and therefore, it's their right to life and liberty which gives them the right to terminate the pregnancy. Also, women possess right over their sexual and reproductive health, which has been recognised internationally as being critically important for their advancing human rights and development. The determination of the government to promote the reproductive rights of women can be noticed via the steps taken in drafting laws and policies for them.

The Medical Termination of Pregnancy Act, 1971:

The Medical Termination of Pregnancy Act, 1971, brought a new era which allowed women to have a fundamental right over their body, i.e. legalising medical termination of pregnancy without the fear of harm and pain from the untrained and unqualified professionals. Earlier, section 312 of the Indian Penal Code, 1860, penalised women for “causing a miscarriage”. Also, section 315 of the same act penalises a person who is found to commit an act done with the intention and motive to prevent the child from being born alive. Therefore, the MTP act came as an exception to the law that penalised pregnancy termination. Section 3 of the Act of 1971 allows the termination of pregnancy in certain circumstances, like where the pregnancy may endanger the woman's mental and physical health or where there are chances that the foetus might be born with significant physical and mental abnormalities. Also, in the circumstances where the pregnancy is a result of failed contraception or is a consequence of rape or sexual violence, the termination of pregnancy is allowed. Therefore, the right to terminate a pregnancy can only be availed in these two circumstances.

Punishment under the Act for Illegal Termination of Pregnancy:

Any other circumstance other than the aforementioned is considered to be a criminal offence. The grounds for the same are:

  1. Abortion within 4-5 months: Unlawful termination of pregnancy within 4-5 months is an offence and is punishable by up to 3 years of imprisonment and/or fine unless done in good faith of mother and child in the womb.

  2. Abortion in the case of Pregnancy above 5 months: In the case where abortion is performed where the foetus is moving is punishable with 7 years of imprisonment and a fine. This is termed ‘quickening’, and it normally occurs between the period of 17-20 weeks.    

  3. Forceful Abortion without women’s consent: If anyone compels a woman or performs forceful methods without her consent in order to abort the child, such a person can be punished for a term not less than 10 years and a fine.

  4. Death Caused by Abortion: Abortion is caused by an inexperienced individual which results in the death of the woman, the doctor who performed the procedure will be punished with imprisonment of 10 years and a fine.

  5. Intentionally causing the death of the Foetus: Intentionally causing the death of the foetus can also be tried under the Indian Penal Code up to imprisonment of 10 years in prison. 

The Medical Termination of Pregnancy(Amendment) Act, 2021:

The Amendment Act, 2021, obtained Presidential assent on March 25, 2021. The act modified the 1971 Amendment by increasing the number of weeks for terminating the pregnancy from 20 weeks for all indications to 24 weeks for rape survivors and beyond 24 weeks for substantial fetal abnormalities. Another amendment is related to the medical opinion, which is required to be taken for termination, and for breaking women’s confidentiality, change in fine from Rs.1000 to 1 year of imprisonment or fine. Earlier, the act was only applicable to married women, but now, unmarried women are also covered under it.

 

Conclusion:

The new amendment in the law can be understood as a progressive step adopted by the government while balancing out our country's diverse cultures and traditions. The next step is to ensure that the medical protocols are followed to facilitate healthy abortions, which must only take place in health care institutions. At last, it can be safely concluded that the country is on the path to addressing women’s issues more fiercely than ever before.

 

Keywords - abortion, medical termination of pregnancy, women's reproductive health, pregnancy


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