In the words of Betty Friedan, the right to abortion is a matter of individual conscience and conscious choice for the woman concerned. Abortion, or as called in legal terms medical termination of pregnancy is an important family planning decision, and rather an overly emotional journey. Abortion law as a subject has also given way to legal controversies worldwide. This article seeks to present an overview of the legislation pertaining to abortion in India while also discussing certain other countries, wherewith hindsight laws were formulated.
Abortion has been pondered upon since ancient times and still continues to be a topic of argument as it deals with taking the life of a human. The conflict between the arguments in favour of and against abortion can be summarized in two terms- Pro-Choice and Pro-Life. Someone who favours Pro-Choice believes that everyone has the basic right to decide whether and when to have children, as individuals have unlimited autonomy with respect to their body.
On the other hand, someone who favours Pro-Life counters the idea of abortion stating that every human, including the unborn, has a right to live. Therefore, the legislative framework on termination of pregnancy differs from one country to another. Let us have a look at the laws of some countries-
Framework for Abortion Law
Before 1971, abortion was a criminal offence punishable under Section 312 of IPC, 1860 which was parallel to an abortion caused by miscarriage intentionally. In 1964, a committee formulated under the leadership of Shri Shantilal Shah submitted a report which called for the deletion of Section 312 of IPC, 1860 and emphasized the need to introduce a special law dealing with termination of pregnancies. As a result, exclusive abortion-related legislation- the Medical Termination of Pregnancy (MTP) Act, 1971, came into being and liberalized abortion law in India. Some important provisions of the MTP Act are as follows:
- termination of pregnancies can be carried out only through registered medical practitioners i.e. only gynaecologists or obstetric specialists, approved under Section 2(h) of Indian Medical Council Act, 1956. Section 3
- Abortion of pregnancy within 12 weeks requires the opinion of one registered practitioner whereas, pregnancy beyond 12 weeks but not exceeding 20 weeks requires the opinion of two registered practitioners. Section 3(2)
- A pregnancy can be medically terminated in the following circumstances: (i) risk to the life or grave injury to the physical or mental health of the concerned woman, or (ii) substantial risk that the child after birth would suffer from a physical or mental abnormality or (iii) pregnancy of a married woman arising out of a failure of contraception, or (iv) pregnancy occurring out of any sex crime such as rape. Section 3(2)
- Pregnancy of a (i) woman under the age of eighteen years, or (ii) woman who has attained the age of eighteen years, but is amentally ill person, shall be terminated only with the written consent of her guardian. Section 3(4)
- Section 4 states that termination of pregnancy shall be carried out at either a hospital established or maintained by the government or a place approved by the government for time being.
- Section 5(1) provides relaxation of provisions mentioned in section 3(2) and section 4, in case a registered medical practitioner forms a fair and bonafide opinion that the termination is promptly necessary to safeguard the life of the pregnant woman.
Medical Termination of Pregnancy (Amendment) Bill 2020-
In 2008, in Dr. Nikhil D. Datar and others v Union of India and others, the Bombay High Court rejected the petition filed for seeking an abortion of an unborn child suffering from heart defect which was detected in 22nd week of the pregnancy. Eventually, the mother faced miscarriage in 35th week. In another case of Samar Ghosh v. Jaya Ghosh, the Supreme Court examined whether a woman’s decision to abort a child without her husband’s consent would amount to mental cruelty. The Court ruled in positive stating that “the act of the wife to undergo an abortion without (i) any particular medical reason or (ii) without the consent or even knowledge of her husband, may lead to mental cruelty”.
Some of the abovementioned cases and their verdicts resulting in damage and conflict of interest and laws forced the government to come up with the recently approved Medical Termination of Pregnancy (Amendment) Bill 2020. Certain important features of the Bill are as follows:
- Revision of Section 3 of the MTP Act, 1971, by increasing the gestation period to 24 weeks, which was originally 20 weeks, provided it requires the approval of two medical practitioners- This is a welcome move as women will be spared from seeking the Court’s permission as there are a large number of cases where women are unaware of their pregnancy in the first five months and therefore time runs out on them.
- The old act allowed only married women to terminate such unwanted pregnancy occurring as a result of any contraceptive failure used by a married woman or her husband. However, the recent bill amends this provision to replace ‘married woman or her husband’ with ‘woman or her partner’ to enable all women, not just the married ones to seek an abortion. This is a more liberal move.
- Constitution of a Medical Board consisting of the following members: (a) a gynecologist, (b) a pediatrician, (c) a radiologist or sonologist, and (d) any other number of members, as may be notified by the state government which will provide recommendation and approval in critical and special circumstances of abortion.
In 1973, through the landmark decision in case of Roe v. Wade, the U.S Supreme Court legalized abortion nationwide by declaring that the Constitution of the United States protects a pregnant woman’s freedom to choose to undergo an abortion without excessive government restriction. Later in Planned Parenthood v. Casey (1992), the Court upheld the constitutional right to abortion that was established in Roe v. Wade, and added that a legislature cannot make a specific law that is too oppressive or prohibitive of one’s right to have an abortion.
Even though the legislation established by the U.S Supreme Court in the above two cases was quite liberal, practically the effective availability of abortion varies significantly from one state to another. For example, Alabama’s new House Bill 314 banned all abortion from the time a woman is known to be pregnant with no exceptions at all. This is the harshest law yet. Whereas, on June 29, 2020, the U.S. Supreme Court restated the right to abortion by striking down Louisiana’s Act 520 prohibiting abortion.
The UK Parliament legalized abortion in 1967 bypassing the Abortion Act 1967, which was later amended by the Human Fertilisation and Embryology Act 1990. It states that a doctor can perform a termination of pregnancy if it is authorized by two doctors, up to 23 weeks in the case where if the pregnancy is continued, there would be a risk of injury to the physical or mental health of the concerned woman, greater than if the pregnancy was terminated.
However, this Act only applied to England, Wales and Scotland, and not to Northern Ireland. In Northern Ireland, abortion was made a punishable crime under Sections 58 and 59 of the Offences Against the Person Act 1861. However, these sections were repealed in October 2019 by The Abortion (Northern Ireland) Regulations 2020, to make abortion by a registered medical professional legal in the country.
In Singapore, The Abortion Act, 1969 (now repealed) legalized abortion on socioeconomic as well as on medical grounds. It allowed abortion on the grounds like (i) serious risk to the life or mental health of the woman, (ii) substantial risk to the child being born with physical or mental abnormalities as to be seriously handicapped, and (iii) pregnancy resulting out of rape or incest under the Penal Code, 1872 or intercourse with an insane person.
Earlier, the Penal code, 1872 s. 312, permitted abortions only to safeguard the life of the mother. But now Singapore has a comprehensive Termination of Pregnancy Act, 1974 that abolished the termination of pregnancy board and left the abortion decision exclusively between the woman and her doctor.
Sri Lanka has one of the strictest abortion law in the world. It punishes abortion under sections 303 to 307, of the Ceylon Penal Code of 1885. These provisions are similar to those provided in sections 312 to 315 of Indian Penal Code, 1860. Further, abortion is permissible only to save the mother whose life is at risk due to pregnancy. In 2017, recommendations were made by a Special Committee to allow abortions in cases of rape and incest, pregnancy in a girl below 16 years of age and with serious foetal impairments.
However, the Bill was disapproved due to the strong opposition by Roman Catholic Church in Sri Lanka. Thus, it seems like no serious efforts have been made to liberalize the abortion law in Sri Lanka as yet.
Despite advances in the reproductive health laws worldwide, the Philippines is still not open to legalization of abortion. Article 256 of the Revised Penal Code of Philippines, 1932 makes intentional abortion and Article 257 makes unintentional abortion punishable. The Code did not permit termination of pregnancy even to save the life of the woman concerned. It is possibly due to the strong influence of the Catholic church which is against abortion under any circumstances.
In 2012, the Philippine government took a positive step and passed a landmark reproductive health bill geared towards easy and improved accessibility of contraception and providing sexual and reproductive health education. The bill also legalized hospital care for women who had suffered complications from unsafe abortions. However, the bill was quickly resisted by the Catholic groups and anti-abortion activists, leading to a Supreme Court challenge that eventually delayed its full implementation.
Scrutiny of the abortion law in different countries would reveal that the countries are divided on the issue. Some countries permit abortion freely, others permit with certain limitations and some do not permit at all. The difference in approach maybe because of the strong feelings and attitude of the people, the influence of religion and various other social. economic, psychological and moral factors, etc. that influence the nation to permit or not to permit abortion with qualifications.
The countries discussed above can be classified into the following four categories: First, countries like the Philippines that do not permit abortion under any circumstances, where termination of pregnancy is illegal and punishable under the law. Second, countries like Sri Lanka that permit abortion only to safeguard the life of the concerned woman. Third, countries like India UK and USA that permit abortion under particular circumstances as provided under the abortion legislation of the concerned country. Fourth, countries like Singapore that permit abortion not only under medical emergencies but also at the sole discretion of women, provided that it should be performed by a registered medical professional in a clinic or hospital approved by the government.