EVOLUTION OF RIGHT TO ABORTION IN INDIA

Introduction

Abortion is defined as the procedure to end a pregnancy. It involves the removal of the placenta and the embryo or fetus from the uterus. This process can either be carried out through surgery or a medicine by a licensed healthcare professional.

The different methods and kinds of abortion are-

• Therapeutic Medical Abortion- Abortion is performed when the pregnant woman has a medical condition which would render the pregnancy as dangerous to the mother or child. In this type of abortion, some hormonal medicines are administered after conducting a physical examination and finding out the medical history of the patient. These medicines expel the fetus and the placenta tissue out of the uterus and this leads to some bleeding.
• Elective Abortion- The abortion is performed by the choice of the woman.
• Spontaneous Abortion- When a pregnancy ends on its own due to some internal or external stress on the body. This is more commonly known as miscarriage. 
• Surgical Abortion- When a pregnancy is ended using surgery.¹ 

Hinduism differs from the Abrahamic religions in one way, which is the concept of reincarnation. According to various Hindu scriptures, life begins at conception and the soul has been described as a ‘union of the semen and the menstrual blood.’ Unlike other religions, Hinduism does not view the experience of the fetus in the womb as a positive one.

According to the Vishnu Purana, an individual soul possessing a subtle body resides within the mother’s womb. It is in a folded position and surrounded by all kinds of impurities. He is incapable of breathing or making any movement and is tortured by all bodily processes. However, it is asserted that the fetus is endowed with a sense of consciousness and possesses memories of his previous lifetimes. He also feels the pain of the sins he committed in his previous lives. The soul present in the womb is not a new soul. It is going through the tortuous process of contemplating its previous births.

The purpose of each soul in Hinduism is to achieve liberation from rebirth on the Earth. The most important way to progress towards this goal is for the soul to move along its fixed karmic path. Carrying out abortion obstructs this very transition and is hence condemned for this reason. In the Vedas originating before 1200 BC, Lord Vishnu has been named as the protector of the child-to-be, implying that even the fetus is equated with a divine existence. Most of the smriti texts considered the killing of a fetus or a pregnant woman akin to killing a Brahmin, the worst crime possible in a Hindu society.

In ancient Hindu society, the worst punishment for a person was to lose his caste. This punishment would ensure their removal from the social hierarchy altogether and even has a negative impact on their spiritual journey after death. Keeping this in mind, the Gautama Dharma Sutra states that a woman shall lose her caste if she aborts her baby. However, an exception is made when the life of the mother is in danger. The Susruta Samhita, an ancient Hindu medical text has laid down a detailed procedure on inducing birth if complications arise during the pregnancy.  The ultimate objective underlined here is to save both the mother and the baby. The text also states that if it is not possible to do so then the life of the mother should be given utmost priority.²

Islam does not explicitly have any rules pertaining to adoption and contraception. Certain Islamic scholars believe that abortion cannot be performed after a period of four months of gestation, unless it is to save the mother. There are also some opinions that abortion should not be allowed after a period of 40 days. The conservative Muslim countries like Chad, Guinea, Kuwait, Iran and Qatar allow abortions for up to 4 months in case of fetal deformities. While abortion for non-medical reasons is discouraged, both Sunni and Shia scholars have realized over time that it should be permitted for some limited reasons.

This school of thought came around due to the problem of increasing population and public health considerations. Historically, there has always been an attempt in Islamic law sensitive to public realities and the position of society. The two main principles which are invoked to bring about this flexibility are istislah and istihsan, which literally translate to consideration of public good and looking for a just solution respectively.

These principles are applied when the interpretation of any Islamic principles leads to impractical results. It was on the basis of these two principles and medical advancement to detect congenital defects in the fetus, the Muslim countries realized that if people were forced by religious principles to bear children with fatal diseases or other defects, it will put a long-term financial burden on poor families. The same will put a further burden on the public healthcare system of the country.³

The Bible on the hand states that deliberately ending an innocent life goes against the sixth commandment. This includes the destruction of a human at any stage of life, from conception to death. This act has been equated to murder since all humans are precious to God. However, it is permissible in cases where the mother’s life is at risk. It is also mentioned that if the person repents carrying out the adoption, God shall forgive them.⁴

Legislations

Due to British Rule, abortion was outlawed in India as well for a very long time. Abortion was criminalized under the Indian Penal Code which provided punishment for deliberately inducing spontaneous abortions or miscarriages.⁵ However, when India started promoting family-planning, the Central Planning Commission formed the Shantilal Shah Committee in 1964. The report made by the Committee was submitted in 1966 and it suggested removing section 312 of the Indian Penal Code and bringing about a special law to deal with the medical termination of pregnancy. 

It was mentioned that since Britain had made changes in its abortion laws, India should do the same. Hence, the Medical Termination of Pregnancy Act (MTP) was passed in 1971.⁶ According to this Act, only registered medical practitioners approved under the Indian Medical Council Act can conduct termination of a pregnancy. The abortion can be carried out with the approval of one medical practitioner till the end of five months.

But if the pregnancy has crossed that time period, the termination has to be approved by two practitioners. The grounds for approval are a pregnancy as a result of sexual assault; a disability discovered in the fetus, the continuation of the pregnancy would pose a serious threat to the physical or mental health of the mother or risk to her life or if there is a great risk that the child may have serious physical or mental deformities which would result in it being handicapped.⁷

The MTP Act has been supplemented with the Medical Termination of Pregnancy Rules which was introduced in 2003. These Rules provide for the training and experience of medical practitioners eligible to perform termination of pregnancies and also lay down that a District Level Committee should be formed in which one member should be a gynecologist, surgeon or anesthetist and other members should be from the medical community, non-governmental organizations and the local government body. It is also provided that one member has to be a woman. These Rules also lay down the guidelines for approval of places where terminations are to be carried out and for the inspection of such places.⁸

The Central government also passed the Comprehensive Abortion Care Training and Service Delivery Guidelines in 2010, which have been amended in 2014 and 2018. These address the deaths caused due to unsafe abortion practices and suggest ways to raise awareness on the entire procedure. It has been laid down that the woman must get counseling sessions before and after the entire procedure. Detailed instructions have been given to ensure that the entire operation is carried out in such a way so as to prevent infection.⁹ The Pre-Conception and Pre-Natal Diagnostics Act was also passed in 1994 to lay down rules for pre-natal tests which are conducted and to provide for registration and inspections of testing centres and places which sell such testing equipment. The main objective of this legislation was to curb the practice of sex determination and the abortion of female fetuses.¹⁰

Judicial Precedents

In a case, the Supreme Court affirmed that it was the woman’s right whether she wanted to continue the pregnancy even if she was mentally ill. Here, the court made a distinction between being mentally ill and mentally retarded.¹¹ In a landmark judgment, the Delhi High Court held that the right to get an abortion is a fundamental right under right to health which comes under right to life guaranteed by the Constitution of India under Article 21. This right cannot be denied to anybody because of their financial status.¹² In one case, the Chattisgarh High Court held that while the approval of a medical practitioner is required for the termination to take place, the woman should not forced for the same and her consent must be taken.¹³ In many cases, the courts have allowed the termination if the continuation of the pregnancy would have a negative effect on the mental health of the woman.¹⁴

There also comes a question of the right to privacy. In one particular case, the Court permitted an interlocutory application to hide and replace the name of the woman in the court records and internet searches to protect her identity.¹⁵ The same principle was followed in another case and here, the court permitted the woman to terminate the pregnancy at 24 weeks when the fetus was detected with a disease which was fatal to its life or could at least cause handicap if the baby was born.¹⁶

The Supreme Court explained in detail the right to privacy vis-à-vis the right to abortion. A woman’s reproductive rights include the right to procreate as well the right to abstain from the same. The bodily dignity and autonomy of a woman should be respected and she should get the choice of terminating a pregnancy if it is hazardous to her life. There should be no restrictions on the sexual activities of a woman and her choice to seek contraceptives.¹⁷

In one case, the Supreme Court did not allow the woman to go for the abortion since there was a possibility that the baby would be born alive and would survive for a considerable period of time.¹⁸ In another case where the fetus was detected with Down’s syndrome, it was held that while this disorder did cause low IQ in some children, it was not definite that the baby would face physical and mental problems. Hence, the abortion was not allowed.¹⁹

International Comparison

There is no international convention pertaining to abortion. The legality of abortion in each country is determined by the domestic law of that country.

Since the United States of America follows a federal form of government, abortion laws also differ from state to state. Prior to 1973, abortion used to be illegal in almost all the states except in cases of rape, incest and risk to the mother’s life. In 1973, the Supreme Court held in a landmark decision that the woman’s right to abortion during the first trimester was protected by the right to privacy and the government could not infringe that right with its restrictions. Hence, during the first trimester, the woman’s right to abortion is absolute, during the second trimester, some restrictions might apply in interest of the woman’s health and abortion shall not be allowed at all during the third trimester, except in cases where it is necessary for the mother’s health.²⁰

Recently, an attempt was made to ban abortion in the state of Alabama. The Human Life Protection Act, which was passed in both the chambers of the Alabama legislature, equates the act of abortion to rape and murder. While women attempting an abortion would not be held liable, the doctors who attempt the same can be imprisoned for a minimum of 10 years or up to 99 years or life imprisonment.

This Bill does not provide any exceptions of rape or incest. The only exceptions are if there is a risk to the life of the mother, a lethal anomaly in the fetus or a note from the psychiatrist proves that the mother suffers from a serious mental illness. However, the law has been temporarily blocked by the federal judge and will not come into effect for the time being.²¹

In Ireland, abortion used to be criminalized under the Offences against Persons Act of 1861. The 1983 amendment to the same added that the unborn child had a right to life since the time of conception. However, the Supreme Court ruled in a landmark judgment that abortion could be carried out in case of ‘real and substantial risk’ to the life of the woman, even by way of suicide.²²

In October 2012, when a dentist by the name of Savita Halappanavar was refused an abortion on the grounds that although a miscarriage had already started taking place, the fetus still had a heartbeat. Due to this refusal, she died and Irish voters used this incident to protest the abortion laws. As a result, the Protection of Life during Pregnancy Act was passed in 2013. This Act widened the scope of life-threatening conditions under which abortion could be allowed and provided a list of locations where it could be carried out.²³

In the United Kingdom, abortion is regulated under the Abortion Act of 1967 and it is allowed if there is risk to the life of the mother or her physical or mental health or if there is some deformity discovered in the fetus. Termination was allowed under this Act up to 28 weeks. In the year 1990, the Human Fertilization and Embryology Act was passed which reduced the time period to 24 weeks. In 2017, the Labour Party promised to extend the provisions of the Abortion Act to Northern Ireland.²⁴

Loopholes in the present law

• Exorbitant Price of Pills- As mentioned above, one can go for abortion by surgical methods or by consuming pills. Due to fear of surgery and other health concerns, women prefer to take oral medicines which are distributed by doctors at very high prices.²⁵ By doing this, the doctors are reaping profit and exploiting the helpless condition of women.
• Misuse of PC and PNDT Act-  This Act was passed with the intention to regulate the places where abortions are carried out and to prevent sex-based abortions. The law enforcement agencies are using this Act to clamp down on abortion centres, with the rationale that they will be able to save more female children this way.²⁶What makes this problem worse is the fact that the practice of child marriage is still prevalent in India and most of the child brides do not have access to legal aid or medical assistance to get rid of an unwanted pregnancy.
• Contradicts the POCSO Act- Under the MTP Act, minors are allowed to terminate their pregnancy with written consent of their guardian and anonymity of these minors is to be maintained. On the other hand, the POCSO Act provides that it is mandatory for doctors carrying out the termination to report the pregnancies of minors to the law enforcement agencies. This creates a conflict since if the doctor reports, the anonymity of the minor will be compromised and if he doesn’t, he can be held liable under the POCSO Act. As a result, the minors might resort clandestine but unsafe methods of termination.²⁷
• Conflict with the rights of disabled people- One ground laid down under the MTP Act is that there is a serious defect which could become a disability if the child is born. Article 21 of the Constitution of India guarantees every citizen the right to life and liberty and even people with special needs have the right to live a life of dignity. Retaining this provision might encourage the bias against such people. On the other hand, it can be argued that not everybody has the patience and facilities to raise a child with special needs and they should not be forced to do so against their own will. If they are forced to raise such a child, it might lead to a bad environment for such a child and affect the mental health of the mother.

Suggestions

• The oral or vaginal pills must be sold in government-regulated set-ups and the prices also must be regulated by the government. It should be included in the national list of essential medicines. Accessibility to such pills should be made easier so that nobody has to resort to unsafe methods.
• Since the legal process is also very slow, by the time the court decides, it is often too late to do anything. Courts must fast-track such matters keeping in mind the 20 week limitation. Special courts and tribunals could be set up for this purpose.
• Large-scale awareness needs to be spread in schools and colleges about the various contraceptive methods and options of abortion so that teenage girls do not resort to unsafe methods. Sex education could be used as a preventive option to prevent unwanted pregnancies and sexually-transmitted diseases.
• While the practice of child marriage should be curbed, the law must be changed keeping in mind the mindset of the present society and the access of children and teenagers to technology. The provisions in the Act which put restrictions on women must be done away with. The age of statutory consent also may be reduced keeping in mind the maturity of teenagers nowadays.
• Since India is not known to be a country which is disabled-friendly, the scope must be kept wide to abort fetuses which have disabilities. Till the State has developed infrastructure for people with special needs, there is no point in forcing parents to raise such children,.

Conclusion

While the current legislations in India provide a lot of grounds for abortion and the courts are also generous in their interpretation of various provisions, what is needed as of now is a change in the mindset of the society. The practice of abortion must not be seen as a taboo but rather as a last resort which some parents have to turn to if they are not capable of bringing children into the world. This change can be achieved by raising awareness on sex education and family-planning.

The legislations must act as enablers instead of restricting the woman’s bodily-autonomy and changes must be made keeping in mind the purpose of the State today. When the MTP Act was passed, the main purpose was family-planning but now the purpose is to ensure that women don’t resort to unsafe and illegal methods and women have the right to not forcibly give birth to children they don’t want to raise. Hence, the role of the law is to act as a helping hand rather than a watchdog.