A Legal Analysis Of Abortion In India & The Effect Of Covid-19

Author: Ishani Chakrabarty Symbiosis Law School, Pune

INTRODUCTION

Abortion can be defined as the termination of a pregnancy through the removal of the embryo or foetus before it can be naturally passed through childbirth. There are two main types of abortion procedures, they are surgical abortion methods and abortion pills.

Abortion has considered by many to be a controversial act for many years. Even today, there are protests, debates and arguments between those who are pro-choice i.e. those who believe abortion should be legally permitted and accessible to all women, and those who are pro-life i.e. those who do not wish for abortion to be practised. It could be said that pro-choice emphasises on the health and rights of the pregnant woman and pro-life emphasises on the health and rights of the unborn child.

According to the United Nations, 25% of all pregnancies end in abortion[1]. Although most countries permit abortions (with certain restrictions), there exist countries that do not permit abortions, such as Argentina and Chile.

INDIAN LAWS GOVERNING ABORTION

The Indian Penal Code,1860

Before the 1970s, abortion was illegal in India. The abortion laws present at the time were enacted were in conformity with the English law in force. There was no specific statute or legislation that dealt specifically with abortion. The Indian Penal Code, 1860 (hereafter known as “the Code”) criminalized abortion as “intentionally causing a miscarriage”. The Code made both causing a miscarriage “with the consent” as well as “without the consent” of the women punishable under Section 312 and 313 of the Code 1860 respectively.

The Medical Termination of A Pregnancy Act, 1971

The Medical Termination of A Pregnancy Act, 1971 (hereafter known as “the Act”) was enacted as an exception to the Code. This meant that the medical practitioners who perform abortions were exempted from criminal liability and no suit for other legal proceedings shall lie against them for any damage caused by a bona fide action[2] while following the provisions of the Act. The Act is thus a doctor-centric legislation that prescribes precise conditions for an abortion to be considered legal.

Before the amendment of 2020, a woman could only be permitted for an abortion if her gestation period was 20 weeks or less. A pregnancy of upto 12 weeks old requires one doctor to sign off on the termination[3] and pregnancy between 20-24 weeks requires two doctors for the same[4]. This means that the doctor or doctors must be of the opinion that either[5]

  1. i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health

  2. ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped

The aforementioned apply only when-

  1. i) the pregnancy is alleged to have been caused by rape

  2. ii) the pregnancy occurred due to the failure of a device or method used by a married woman or her husband

A woman under the age of eighteen can be given an abortion only with the consent of a guardian in . Additionally, a lunatic[6] requires the written consent of a guardian. Besides these exceptions, no woman requires the permission of her male partner or any other person to go through with an abortion.

In the case of Mangla Dogra v. Anil Kumar Malhotra[7],  a woman had received an abortion in her sixth week of pregnancy. Her parents filed a case stating that the abortion was unlawful as she not mentally stable at the time and thus was a lunatic and required her parents’ permission to perform the abortion. However, the Court held that her mental state was only dilapidated due to her abusive husband, in whose absence she would be mentally stable. Therefore, she was qualified to consent to her abortion.

With the allowance of abortion came the rise of sex-specific abortion i.e. female foeticide. Thus in 1994, the Pre-Conception and Pre-Natal Diagnostic Techniques Act was passed, making it prenatal sex screening and female foeticide punishable offences.

The 2014 Draft Amendment

On October 29, 2014, the Ministry of Health and Family Welfare had released a draft of the Medical Termination of Pregnancy (Amendment) Bill, 2014. Along with increasing the legal limit for abortion from 20 weeks to 24 weeks, the draft bill, if passed, would permit a woman to make an autonomous decision in consultation with a registered healthcare provider.

Despite how necessary the proposed changes were to the existing abortion laws, the Amendment Bill never saw the light of day.

The 2020 Draft Amendment

On March 2, 2020, the Union Health Minister introduced a new set of amendments to the Act in the Parliament[8]. The  Medical Termination of Pregnancy (Amendment) Bill, 2020 has increased the upper limit of the gestation period from 20 weeks to 24 weeks. Moreover, abortions are now available to any woman or her partner and were no more restricted to only a married woman and her husband. The name and other details of the woman having the abortion shall not be revealed except to a person authorised in any law.

The amendment also added “or preventing pregnancy” after the phrase “limiting the number of children”, which is a positive step towards the recognition that not all women want children and may want to prevent pregnancy altogether. However, it is unclear whether the amendment means that abortions will be limited to only partnerships or if it will include groups as sex workers and those who accidentally get pregnant outside of a committed relationship, as the former would render the necessity of only the pregnant woman’s consent invalid.

ANALYSIS

The new law is progressive, empathetic and deals at the sensitive issue of abortion with compassion. The amendment also puts India in the top league of countries with flexible, empowering abortion laws that help women make individual choices based on their personal priorities and beliefs.

The prescribed time-limit

The extension of the time limit from 20 weeks to 24 weeks is significant. There have been cases in which the women did not realise they were pregnant in the initial weeks of their pregnancy. By the time the abortion would have been approved by the Court, the foetus would have grown considerably, thus creating greater risks to the woman.

It is medically established that the earlier the better when it comes to terminating a pregnancy. After 20 weeks, the risk of death from abortion is about the same as childbirth[9]. However, a foetus is not developed enough in the 20th week for medical practitioners to determine whether there exist severe conditions or not[10]. This discovery is usually made after 20 weeks, after which the abortion would not be allowed under the previous grounds. Therefore, medical science has made the 20-week ceiling redundant.

Written consent of a guardian

Whether the written consent of a guardian should be necessary has been a matter of debate and scrutiny. On one hand, the consent of a minor for intercourse is not considered valid[11], which means that abortions should not be allowed purely based on the same consent. On the other hand, it has been seen that girls under 18 who get pregnant are likely to end their pregnancy without their guardian’s consent by any means necessary due to shame and fear. There have been instances[12]in which girls performed abortions on themselves through the insertion of an object or substance, the ingestion of harmful substances and the application of external force. If they do not perform abortions on themselves, they resort to the help of medical practitioners who are willing to perform the abortion without the necessary written consent. These practitioners may vigorously pummel the woman’s lower abdomen to disrupt the pregnancy, which can cause the uterus to rupture and result in the death of the woman[13].

Right to life

The right to life is not a mere animal existence[14]. The right is also attributed to the right to privacy as well as the right of bodily autonomy[15]. A woman’s right to privacy, dignity and bodily integrity should be respected and her reproductive choices of a woman should give her the right to procreate as well as to abstain from procreating.

The right to health is a part of the right to life. Health should not be limited to only physical well-being but must extend to mental stability as well. Even though the refusal of abortion post the 20-week mark may not risk a woman’s physical health, it does affect her mental health. In multiple cases, the Court has allowed the termination of a pregnancy on the basis of mental suffering.

Pro-choice v/s pro-life

The pro-choice v/s pro-life debate has been divisive around the world ever since the practice of abortion began. The argument is based on whether an unborn child’s rights trump the rights of the woman carrying it. If the foetus was considered a mere part of the maternal organism, the termination of pregnancy would remain entirely in the sphere of private life and not warrant public interferences. However, the foetus is considered an “autonomous human being” under Indian law. For instance, a child in the mother’s womb is deemed to be in existence for the purpose of inheritance and thus has a right to challenge any transaction and has a right of action and entitled to institute a suit as a child[16]. Thus, the termination of pregnancy has a social dimension that demands public regulation.

It can be said that India is a pro-choice nation that does not ignore the right to life of the unborn. The Court has stated[17]that a compromise which guarantees both the protection of foetus as well as the freedom of abortion of a pregnant woman is impossible because the termination of pregnancy always means “destruction of unborn life”. The State must effectively fulfill its duty to protect “developing life” and accordingly make a reasonable adjustment between unborn right to life and the woman’s right to her own life and health[18].

Given the ever-expanding population of India, it is fitting to allow those who do not desire children to not be forced, by law, to do so. Most of these unwanted children end up in adoption centres. Many of them do not get adopted into loving homes, which eventually has negative effects on their physical and mental health. Thus, the concept of ‘pro-life’ is in reality neither safeguarding the woman’s life nor the child’s life.

THE IMPACT OF COVID-19 ON ABORTION

In April, the United Nations’ sexual and reproductive health agency estimated that there could be seven million unintended pregnancies around the world[19], potentially increasing the demand for abortions if lockdowns continued for six months and there were disruptions to reproductive services.

Due to the multiple lockdowns implemented around the nation and the world, the opportunity for women to seek abortions during the COVID-19 outbreak is far less. Self-isolation has led to an increase in sexual activity amongst many, not to mention the increased risk of sexual violence within quarantine settings[20]. This is likely to create a spike in the number of unwanted pregnancies being forced upon women as well as the number of women being forced to resort to illegal, unsafe methods to terminate them. Women who find themselves with an unwanted pregnancy will be forced to choose between exposing themselves to the risk of infection with COVID-19 in clinic waiting rooms and continuing with a pregnancy they do not want. The rest will, however, choose to end their pregnancies themselves with the use of dangerous objects and methods.

From an international perspective, the closing of borders of countries with less strict abortion laws has made it harder for women in countries with strict abortion regulations such as Poland to seek the procedure in these nations. Before the pandemic, medical abortions France, Ireland and England were permitted only after an in-person consultation with a doctor. The medication had to be taken in a clinic in the presence of a certified practitioner, not at home. Due to the COVID-19 pandemic, these countries relaxed these restrictions and permitted at-home abortions with medication administered by prescription and the guidance of a medical professional over the phone or online[21]. This practice was, unfortunately, not enforced by most countries, even those that permit abortions.

CONCLUSION

Every woman must have the basic human right to decide the number, spacing and timing of her children. She must be allowed, by law, to do so freely and responsibly without the use of coercion and violence. Each woman should have enough information to make a decision that is in accordance with her health, life and plans. We as a nation must strive to achieve the highest standard of sexual and reproductive health so that women do not fear for their own lives. Access to legal and safe abortion is essential for the realization of these rights.

Doctors often hesitate to perform abortions due to fear of prosecution under the Indian Penal Code. Therefore, it is imperative to have laws that allow abortion on request or at will instead of emphasising on the doctors’ opinions. The conflicts between different laws have a dire effect on doctors’ willingness to perform abortions. The law must shift from being doctor-centric to one that is based on a pregnant person’s decision, made in consultation with their doctor. This is the only way to ensure the longevity of the law as well as the safety of women across the country.

[1] Preventing unsafe abortion,  https://www.who.int/news-room/fact-sheets/detail/preventing-unsafe-abortion

[2] Section 8, The Medical Termination Of A Pregnancy Act, 1971

[3] Section 3(2)(a), The Medical Termination Of A Pregnancy Act, 1971

[4] Section 3(2)(b), The Medical Termination Of A Pregnancy Act, 1971

[5] Section 3(2), The Medical Termination Of A Pregnancy Act, 1971

[6] Section 2(a), The Medical Termination Of A Pregnancy Act, 1971

[7] Dr Mangla Dogra & Ors. v. Anil Kumar Malhotra & Ors., (2012) 167 PLR 267

[8] Proposed Changes to Abortion Law Continue to Sideline Pregnant Persons, https://science.thewire.in/health/proposed-changes-to-abortion-law-continue-to-sideline-pregnant-persons/

[9] In-Clinic Abortion, https://www.plannedparenthood.org/learn/abortion/in-clinic-abortion-procedures

[10] Brief for the American College of Obstetricians and Gynecologists and American Congress of Obstetricians and Gynecologists In Support of Plaintiffs-Appellants and Reversal as Amicus Curiae, Isaacson v. Horne, 716 F.3d 1213

[11] Section 375, The Indian Penal Code, 1860

[12] When Abortion Is Illegal, Women Rarely Die. But They Still Suffer, https://www.theatlantic.com/health/archive/2018/10/how-many-women-die-illegal-abortions/572638/

[13] Vijay Laxmi v. State, 2011 SCC OnLine Del 1045

[14] Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 129

[15] Justice K.S. Puttaswamy and Ors. v. Union of India and Ors., AIR 2017 SC 4161.

[16] Aswini Kumar Pan v. Primal Debi, AIR 1964 Cal. 354

[17] Surjibhai Badaji Kalasva v. State Of Gujarat, 2018 SCC OnLine Guj 89

[18] D.D. Basu, Commentary on Constitution of India, Vol. III Edn., 2008 3143

[19]Coronavirus Disease (COVID-19) Pandemic UNFPA Global Response Plan, https://www.unfpa.org/sites/default/files/resource-pdf/UNFPA_Global_Response_Plan_Final_Revised_June.pdf

[20]Coronavirus Crisis: No lockdown for domestic violence, https://www.deccanherald.com/specials/insight/coronavirus-crisis-no-lockdown-for-domestic-violence-829941.html

[21] Coronavirus Created an Obstacle Course for Safe Abortions,  https://www.nytimes.com/2020/06/14/world/europe/coronavirus-abortion-obstacles.html

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