Legal status of abortion in India

“Abortion is part of being a mother and of caring for children because part of caring for children is knowing when it’s not a good idea to bring them into the world.” – Katha Pollitt

Abortion is the expulsion of a fetus from the uterus before it reaches the stage of viability. It can be either spontaneous (miscarriage) or can be brought intentionally which is often called an induced abortion.

In India, The Medical termination of pregnancy Act was passed almost five decades ago. But, Abortion is still considered a taboo and debatable topic for many. According to National study of the incidence of abortion and unattended pregnancies, Almost 15.6 million abortion was performed in 2015.

Life began from the womb of the mother and abortion is the destruction of life. Many people also raise questions on social, moral and legal aspects of abortion and according to them, women have a moral duty to give birth to a child and protect the fetus also. From this view, the obvious question arises whether the women have the right to abortion or not?
Human rights are those rights which are available to all the human beings irrespective of caste, colour, creed, religion and nationality etc. Right to life is the most important human right. Article 6(1) of the International Covenant on Political and Civil rights prohibits the arbitrary deprivation of human rights.

Abortion as a human right

Many controversies are related to this right and right to abortion is one of them. Every mother has a right to abortion but this right has to balance with the right of the unborn child. Earlier, abortion was opposed by society and considered as a murder of the embryo. In recent years, formal policies and laws are indicating the intent of government for promoting the reproductive rights and every woman has a complete right over her body.

When is abortion legal in India?

Well, the answer to the much-pondered question – “ls abortion legal in India” is – Yes!

Abortion in India is legal under some circumstances and illegal in others. The abortion laws in India say that if the person getting an abortion is an adult, then you need no parental or spousal approval for it.

There is no legal age for abortion in India, however, the prescribed legal abortion weeks in India are up to 12 weeks. In the first 12 weeks of pregnancy, abortion is legal in India, if signed by a single medical practitioner.

So till the first 12 weeks and not beyond 20 weeks of the pregnancy, you can proceed with the procedure, along with the signs of two registered medical practitioners.

In India, abortions are legal in certain situations, as abortion laws in India for unmarried girls, rape victims, and married women varies. With the rising crime rate in foeticides and infanticides, the abortion laws in India made it illegal to detect the sex of the foetus, thereby decreasing the rate of abortion. 

Under the Medical Termination of Pregnancy (MTP) Act, 1971 in India, which is the law relating to abortion defines it as an untimely termination of the foetus. There is a specified legal time for abortion in India and when you don’t follow it, it’s a punishable offense.

When you terminate the pregnancy after the prescribed legal period for an abortion in India, it’s called foeticide. And when you terminate before that, it’s termed an abortion.

In late January 2020, the Union Cabinet amended the 1971 Medical Termination of Pregnancy (MTP) Act allowing women to seek abortions as part of reproductive rights and gender justice. The amendment also places India in the top league of countries serving women who wish to make individual choices from their perspectives and predicaments.

The amendment has raised the upper limit of MTP from 20 to 24 weeks for women including rape survivors, victims of incest, differently abled women and minors. Failure of contraception is also acknowledged and MTP is now available to “any woman or her partner” replacing the old provision for “only married woman or her husband.” The new law is forward looking, empathetic and looks at a very sensitive issue with a human face.

India’s move comes at a time when the landmark Roe v. Wade in the Supreme Court of the United States (US) is under scrutiny. That 1973 judgment protects a pregnant woman’s liberty to decide whether or not to have an abortion without needless government restrictions. A historic piece of legislation, it served as a beacon of hope for women around the world. Roe v. Wade is now shaking at its roots as a conservative US Supreme Court wants doctors performing abortions to get admitting privileges from a nearby hospital.

In the Leading Case: Roe v. Wade: Jane Roe challenged the constitutionality of Texas Criminal Abortion laws in the Supreme Court of The United States. The petitioner pleaded that these laws were vague, unconstitutional and encroaching her right to privacy. On the other hand, The The state of Texas argued that fetus is a Person within the meaning of the Due process clause of the fourteenth Amendment of the United States Constitution.

The Court held that the State cannot restrict the women’s right to abortion during the first trimester which try to balance the State’s interest with the individual’s interest. The State can regulate the procedure during the second trimester in a reasonable way related to maternal health and in third trimester, the State can restrict abortion in a way as it thinks fit.

When is abortion illegal in India?

As IPC also governs Indian abortion laws, so Sections 312 to 316 of the Indian Penal Code 1860 lays down situations. These state as to when abortion is illegal and punishable under the law. The law states that causing a miscarriage of a pregnant woman is a crime under the Code.

Also, any person who voluntarily causes a woman with miscarriage will face punishment imprisoning up to 3 years and fine. Especially, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman.

Under the law, abortion in India is illegal in two conditions:

  • When a woman is with child, it means the situation when the gestation has begun
  • When a woman is quick with child, it means that the child’s motion is felt by the mother

If child abortion in India happens with the woman who is quick with the child, then such a person will be punished with imprisonment of up to 7 years along with fine.

Even if a woman herself causes her miscarriage, then she would able to be liable under the law. A woman who causes herself to miscarry also comes under this provision.

However, abortion in India is permissible under Section 312 on ‘therapeutic grounds’. This means in order to protect the life of the mother, if abortion is necessary, then it’s not an offence.

Conclusion


An evil practice can be curbed not by cutting the stems growing on the trunk above the ground, but by eliminating the roots standing beneath. Social awakening, equality, vigorous campaigning against female foeticide, honest and full enforcement of dowry prohibition, sexual harassment laws are the steps towards uprooting the practice of female foeticide

The objective behind legislating the termination of pregnancy is to provide quality abortion care to all women by increasing accessibility and affordability to safe abortion. There is also a need to bring awareness regarding abortion and contraceptive methods among the youth especially. This requires political will, adequate facilities, infrastructure and training.

The law has to take care of the liberty of the mother as well as the unborn. As a hospitable community, we should seek ways of providing support for lonely and frightened mothers, and for lonely and abandoned babies. We need to offer women with unplanned pregnancies as much love and support as they require and to assist them in finding compassionate alternatives to abortion.

Categories: News