Abortion laws in India are
contained in the Medical Termination of Pregnancy Act, 1971, and the provisions
in relation to the procedure are governed by the Act. The Act has been widely
requested to be amended owing to the changed medical and social circumstances,
but the Amendment Act has been pending since 2014, while many aggrieved women
have been forced to approach the courts to seek remedies that are not available
in the written laws.
THE MEDICAL TERMINATION OF PREGNANCY ACT
The Act lays down situations
where a pregnancy may
be terminated, and the conditions to be met thereunder. Termination is
permitted if the continuance of the pregnancy would involve a risk to the life
of the pregnant woman or of grave injury physical or mental health; or if there
is a substantial risk that if the child is born, it would suffer from such
physical or mental abnormalities, but categorization of the level of medical
judgment required is done on the basis of gestation period completed:
·
Up to 12 weeks – One Medical Practitioner
·
12-20 weeks – Atleast two Medical Practitioners
The anguish caused by a pregnancy arising from rape is
regarded as a grave injury to the mental health; and similarly a pregnancy
arising from the failure of protection or contraceptives in a married couple
will be regarded as grave mental injury.
In case of minors or lunatics, the written consent of
guardian is essential to terminate the pregnancy; but the specific requirements
relating to the length of pregnancy do not apply where the Medical Practitioner
has formed an opinion in good faith that the termination of such pregnancy is
immediately necessary to save the life of the pregnant woman.
THE AMENDMENT BILL OF
2014
The Amendment Bill that has been pending for the past 3
years purports to introduce certain changes in the provisions of the Act:
·
To substitute “Registered Medical Practitioner”
with “Registered Healthcare Provider’ in the long title of the Act.
·
The ambit is widened to include Homeopathic
practitioners, Unani, Sidhha, and Ayurveda; or nurse or auxiliary nurse midwife who
possesses an authorized registration under their respective category.
·
S.3 pertaining to the conditions to terminate pregnancy
to be modified in favor of women and their will; up to 12 weeks of gestation, MTP
may be conducted upon request of the woman.
·
MTP allowed upto 24 weeks instead of 20.
·
S.5A to be introduced, to protect privacy of the
woman.
THE NEED OF THE
HOUR
With the
incidents of rape victims becoming pregnant, unwanted pregnancies and
unprotected intercourse on the rise, it is expedient for the Govt to take up
steps to ensure reproductive health of women. The data from the Sample
Registration System (2001-03) under the Registrar General of India, unsafe
abortions contribute to about 8% of the total abortions happening in the
country. The reasons for this are multifold, with women attempting to gain some
amount of autonomy in deciding whether or not they want the baby, and the law
continuing with the shackles it has placed on the freedom to decide. Apart from
affording women a rightful opportunity to decide on the same, the law also
needs to consider rape victims and child sexual abuse victims, who may be left helpless after 20 weeks of pregnancy.
The current scenario requires such aggrieved victims to approach the Courts of
law to interpret the clauses in a wide manner so as to accommodate their
anguish in the terms “grave injury to her
physical and mental health”.
In May, the Rohtak Court had granted permission to
a 10-year old child to terminate her 18-22 weeks old foetus; while a similar
matter is currently under the consideration of the Supreme Court.
Relevant Case Laws (INDIAN KANOON)
·
Mrs. X and Ors. v. Union of India and Ors.
·
Meera Santosh Pal v Union of India
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