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Study Of Abortion Laws And MTP Act Through The Lens Of Women's Rights

In order to encourage greater preference for and access to safe abortions in India, the Medical Termination of Pregnancy (Amendment) Bill, 2020 was drafted with a noble and liberal goal.

Additionally, it aimed to boost recognition for women's bodily autonomy and reproductive rights. The earlier MTP Act of 1971 was substantively progressive, but the most recent amendment aimed to adapt Indian abortion law to global social and humanitarian concerns that have been on the rise. In addition to a dismal track record in awareness and implementation, there are still gaps in the legal framework.

Abortion is still frowned upon in all strata of Indian society, despite a number of policy initiatives, Action Plans, judicial decisions, and grassroots efforts. The MTP Act and the related Rules and Regulations need to be implemented with significant reform. This essay aims to highlight the shortcomings of the current Indian abortion law as well as the obstacles to its efficient application.

With the help of government statistics and research done by a number of State and Non-State Institutions, it aims to assess the degree of success of the MTP Act of 1971. It also aims to examine the root causes of local level execution failures and potential abuse scenarios for the Act. This paper proposes methods to fill the existing void in the legal framework and to facilitate increased legal and social awareness on abortions.

It identifies the inadequacies in the newly approved MTP (Amendment) Bill, 2020 and suggests possible remedies for a more comprehensive framework. It further suggests ways to tackle corruption, misuse and malpractices in the medical profession, to counter the menace of maternal mortalities from unsafe abortions.

Global lawmakers have long struggled with the issue of whether a mother's life is more valuable than that of an unborn child. Anti-abortion activists, who frequently hold conservative opinions that are frequently based on a narrow interpretation of religious doctrine, have consistently backed anti-abortion legislation.

For instance, abortion has recently been prohibited from conception on throughout pregnancy in the Republican-leaning US State of Alabama. Abortion Incidence and Service Availability in the United States, 2017 [RK Jones, Witwer E, and Jerman J] (Guttmacher Institute, 2019) [Accessed 10 May 2020 at].

Similar to the United States, Ireland has recently considered lifting the ban on abortion despite being progressive on other social fronts. Regardless of the outcome of the abortion referendum in Ireland, [Lizzie O'Shea] In the Guardian (London, May 22nd, 2018) The moral implications of abortion have been complex.

Both Pro-Choice and Anti-Abortion activists have presented compelling arguments to either ban or allow abortion. abortion today can be performed safely through surgical methods.Hence, ideally, abortion should be allowed at any stage of pregnancy with the consent of the mother.

However, the legal framework in India is yet to recognise the absolute exercise of bodily autonomy by a woman. Although the recent Amendment to the MTP Act has taken a huge stride in increasing access to safe abortions by allowing abortions at any stage on the ground of foetal abnormality and increasing the uppergestational limit for seeking abortions, it has not achieved gender justice in the true sense.

Research Objective;
This research paper discusses about the history of Abortion laws in India and also it talks about the current situation after the implementation of MTP Act also its key provisions and Arguments in favour and against the judgement and also it talks about supreme court judgements and finally followed by conclusion and suggestions.

This research paper talks about the topic - An Analysis on Doctrine of Absolute Liability and Right to safe and healthy Environment . It also discusses the definition of strict and absolute liability . This research paper also deals with the Essential elements of Strict and absolute liabilty

. . .Through the research paper , we can also get to know about the relation of absolute liabilty with polluters pay principle .

Research Problem:
The research problem of this research paper talks about whether absolute liabilty can be related to environmental liability and how it is helpful for environment conservation and whether absolute liability can guarantee safe and healthy environment

Research Questions:
  1. What was the history of abortion laws in India and how it can be compared to the present scenario?
  2. What were the arguments raised after the implementation of MTP Act in India?
  3. Whether Supreme Court brought about any changes to the abortion laws if seen through judgements?
Scope Of The Study:
The research paper talks about the definition of Strict and absolute liabilty . It also talks about the Essential elements of Stirict and absolute Liabilty .

The scope of the study of this research paper also deals with the Shriram Gas leak case and its various issues raised and how it relates to the environmental law

The research paper also talks about the relation between absolute liability and Polluters pay principle and also its discusses about the precautionary principle and finally it is followed by a conclusion

Research Methodology:
Descriptive and analytical methodology has been followed by the researcher throughout the research paper . Secondary Sources like books, articles and websites have been referred by the researcher for the accomplishment of the research paper

History of Abortion Laws in India
The British conception of morality has had a significant impact on how morality is conceived in Indian law. The Indian Penal Code indirectly criminalized abortion under S. 312, which stated that anyone who intentionally caused a woman to miscarry, other than to save her life, would face three years in prison and a fine. This provision took its cue from the Offenses Against the Persons Act, 1861. It also stipulated a seven-year prison sentence as punishment for women who voluntarily sought abortions.

Unborn people have historically had the status of legal persons under common law, which is reflected in a number of legal fields, including torts, Compared to the life of a developing foetus, a woman's life and mental health were considered to be less important. However, due to a shift in international law, Indian lawmakers began discussing the matter. Humanitarian concerns about women's health and their inescapable link to abortions prompted a change in the legal community in India's discourse.

The Legislature established the Shantilal Shah Committee to thoroughly research the issue and make recommendations regarding the legality of abortion. The Committee put forth recommendations for the Indian law that was in place between 1964 and 1970. It proposed the legalisation of abortion, with a view to protect women's lives and to improve maternal health.

The recommendations were framed after an extensive analysis of the legal, medical and socio-cultural aspects of abortion.There was a notable shift in perception, and significant weightage was given to gender justice and reproductive rights. As the law evolved further, the process of abortion was decentralised, and private players were given more freedom to carry out abortions in a safe environment.

In order to evaluate the effectiveness of abortion legalisation and the actual prevalence of both safe and unsafe abortion performed in India, the Abortion Assessment Project of 2002 [The Abortion Assessment Project 2002] was launched. The MTP Rules and Regulations of 2003 [The Medical Termination of Pregnancy (Rules and Regulations) 2003] outlined the precise responsibilities, make-up, and procedure necessary for a legal abortion as well as the various bodies involved in the process.

Despite numerous policy changes, according to the 2002 Assessment, India had roughly 15.6 million abortions annually. In India, unsafe abortions account for 56% of all abortions, and 10 women per day pass away as a result [Meena Armo, Kavita Babbar, Hemlata Thakur, Sachin Pandey, The rural practise of unsafe medical abortion causes maternal morbidity

Present Scenario
The MTP (Amendment) Bill was introduced in Lok Sabha in 2020 as a result of deficiencies in the law and the harm it consequently caused to expectant mothers. Surprisingly, the bill received strong support from MPs and was ultimately approved. Although the Act has not yet been put into effect, its goal has been hailed as progressive and revolutionary.

Among other things, the Act removed the upper limit in cases of foetal abnormalities and increased the maximum gestational period for abortion for some categories of women to 24 weeks. Women will now be able to terminate pregnancies later than previously allowed thanks to these two significant changes.

It was frequently observed that foetal abnormalities and other similar defects were discovered much later (beyond the 20-month mark), leaving women defenceless and unable to access legal abortions. Pregnancies can typically be terminated at any stage thanks to cutting-edge technologies like MVA and EVA. By today's standards, the current bill is still surprisingly limited in its scope.

It has not addressed the numerous legal problems that women face at the most vulnerable point in their lives and has retained provisions that prove to be burdens for women. The following sections analyse the characteristics of the current Bill and present arguments for or against them.

Main Features of The MTP (Amendment) Bill 2020): Key Provisions
The MTP (Amendment) Bill has proposed major reforms to the earlier Act to make it convenient for women to seek legal and safe abortions, even at an advanced stage of gestation.

Among the major changes introduced are the following:
  • Removal of Two RMPs' Opinions:
    For abortions performed after the first 12 weeks of pregnancy, the previous Act required the advice of two RMPs. Finding 2 RMPs to get approval was very difficult for women who had limited access to medical facilities and little understanding of the procedure, which caused further delays and hardships for expectant mothers. Additionally, it caused delays in making important choices, putting women's health and safety at risk at a delicate time.
  • Extending the Upper Limit to 24 Weeks:
    The proposed Legislation permits women who fall into certain categories, such as rape, incest, and crime victims, disabled women, and minors, to abort their pregnancies up to 24 weeks. The weeks of gestation limit of 20 weeks has thereby become less onerous for women, particularly in situations where pregnancy or its complications are discovered after 20 weeks. It will give women more time to think things through and take thoughtful actions that are beneficial to their well being and health.
  • Removal of Upper Limit for Abortions for Foetal Abnormalities:
    That bar is removed by the current Bill. Beyond 20 weeks, foetal abnormalities like cardiac defects, mental disorders, and other life-threatening defects are discovered, causing the mother great mental anguish and suffering. The woman's mental health suffers as a result of the unbearable pain of giving birth to such a child and watching the child suffer an early death. In such cases, it is sensible to give the woman permission to end the pregnancy and spare her the suffering. However, the woman must request authorization from a Medical Board, whose makeup and duties would be specified by the Government.
  • Woman's Privacy:
    In terms of the social acceptance of abortion, Indian society is still in its infancy. Following disclosure of the abortion to family, friends, and the community, women frequently experience rejection and discrimination. Additionally, they are occasionally subjected to physical and mental abuse as punishment for choosing abortion, which makes social interactions even more challenging. The Bill suggests that the woman's name and other personal information would be kept completely private, save when required by a judicial body or for an investigation, to prevent unauthorized use of the information provided.

The changes listed above fall short of effectively addressing India's problem with unsafe abortions. For complete achievement of reproductive health and gender justice, numerous additional reforms are required. The law needs to shed away prejudices borrowed from the society and separate itself from primitive notions of morality. With international bodies like the WHO recognising the right of a woman over her body, it is time that Indian law matches up to international standards and moves towards a pro-choice stance

Arguments in Favour of the BILL
  1. Abortions must be prohibited arbitrarily and the life of the foetus must be protected in order for a foetus to be recognized as a legal person. The interests of the individual and the community must be balanced. While abortions are legitimately permitted in certain situations, doing so without a good reason endangers the life and health of the foetus and is therefore morally wrong.
  2. Even with technological advancement, health complications are still a possibility if abortions are carried out after 24 weeks, endangering both the mother's and the foetus' lives. While it's important to respect the mother's decision, making a choice without a proper medical opinion would endanger the woman's life.
  3. When a pregnancy is terminated at an advanced stage, the foetus will feel pain. Without good justification, intentionally hurting a living thing that can feel pain and breathe is comparable to intentionally killing a person. Studies carried out by organizations like the JAMA review have demonstrated that the foetus does experience pain after 26 weeks due to the development of an advanced neurological system.
  4. Several arguments have been made in favor of eliminating the requirement that a guardian's permission be obtained before an abortion can be obtained by a minor or a person with a disability. Due to their general lack of maturity and knowledge, minors and people with disabilities are more likely to make hasty or impulsive decisions that could be harmful to their own health and safety.
  5. Permitting abortions after 24 weeks increases the likelihood of performing sex-selective abortions and encouraging female foeticide. There is a vast network of quacks and medical professionals who operate such businesses illegally while pretending to provide legal abortions.
  6. In some cases, the woman decides to abort the child not out of her own free will but rather as a result of the intense social pressure and stigma attached to pre-marital pregnancies. Instead of approving the abortion for the sake of appeasing society, it would be more advantageous in such situations to offer family members appropriate counseling and to ensure the woman's safety.

Arguments against The Existing Law And The Present Amendment Bill:
  1. In addition to the rights to life and personal liberty under Article 21 of the Indian Constitution, Article 14 guarantees every citizen the right to equality. It is essential that women be given the right to choose abortion, even in the absence of specific justifications specified in the MTP Act, if it seems reasonable and does not endanger the woman's life. This will promote gender equality and respect for women's privacy, personal liberty, and right to life.
  2. There is no higher significance for a foetus' personhood or suffering than a mother's life. Since the woman is the one who must bear the child and deal with any consequences of continuing her pregnancy.
  3. The right to gender equality and fundamental human rights both depend on the exercise of reproductive rights. Gender justice will only continue to be a meaningless ideal in the absence of reproductive rights. Abortion in India: Experts call for changes, according to Rohan Gupta in DowntoEarth (27th August 2019).
  4. The current Bill allows abortions for foetal abnormalities at any stage, but it also stipulates that a Medical Board must give its consent. There is a chance that the Medical Board will make decisions that are not in the mother's best interests. Additionally, this will cause unnecessary delays in seeking safe abortions, and a woman should not be forced to carry a foetus with abnormalities unless there is a threat to her life. After all, she is the one who has to carry the child.
  5. The extension of the upper limit to 24 weeks has only been made available to a select group of women, further restricting the number of women who can obtain safe abortions of their own free will after 20 weeks. Financial difficulties and situations that go beyond those mentioned in the Act can occasionally force the mother to abort the child. The Act neglected to address this issue and opted for a rather constrained interpretation of female autonomy and choice.
  6. According to Betty Friedan's book Abortion: A Woman's Civil Right, which was first published in 1999, several attempts to include abortions as a violation of the right to equality have been rejected by international instruments like the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights.

Important Judgments of The Supreme Court on The Issue of Abortions:
  • S.3 of the MTP Act, 1971, was contested as being unconstitutional and violating the right to life under Art. 21 in Nikhil Dattar v. UOI [Nikhil Dattar v. UOI, WP (I) No. 1816 of 2008]. The SC declared that it could not get involved because it was up to the legislature to change the law. When approached by women who have not received any helpful assistance from the courts, such decisions exacerbate the moral dilemmas that doctors already face.
  • In another case, Suman Kapur v. Sudhir Kapur, abortion without the husband's consent was equated with mental cruelty and made a basis for divorce. Suman Kapur v. Sudhir Kapur (2009) 1 SCC 422. This ruling contravenes the MTP Act and is problematic.
  • The Supreme Court recognised reproductive rights as being fundamental to the right to life and bodily integrity guaranteed by Art. 21 in Mrs. X v. UOI [Ms. X v. Union of India and Others (2016) C.W.P. 593 (IND)], and it permitted the termination of pregnancies after 20 weeks on the grounds that there might be harm to the woman's physical health. Similar rulings have permitted compassionate abortions up to 25�26 weeks of pregnancy.
  • The mental anguish that comes with carrying the rapist's child is unbearable for rape victims. Such pregnancies harm the victim's body and mind, deprive her of her innocence, and take away her freedom in addition to the social stigma attached to rape. In the case of MuruganNayakkar v. UOI ((2017) SCC OnLine SC).
  • The ruling in Sarmishtha Chakraborty v. UOI[Sarmishtha Chakraborty v. UOI (2018) 13 SCC 339], where the SC explicitly acknowledged that a woman has a "sacrosanct right to her bodily integrity," and as a result permitted the petitioner to abort her 26-week-old foetus, offers some hope. The woman would sustain severe mental harm if the pregnancy went on, according to the court. Over the past ten years, the judicial trend has shifted in favour of a more pro-choice stance.

The judiciary has largely taken a pro-choice stance and permitted the exercise of reproductive rights, free from unjustifiable legal restrictions, as evidenced by the numerous similar cases before the SC. But there is still a long way to go because without properly implemented.

The fact that India has been among the top nations in liberalising its revocation laws and trying to increase access to safe revocations for women can not be denied.( Annie Banerji," India Supports Looser revocation Laws in Boost for Women") According to Reuters (January 29, 2020) The maturity of Indian women are unfit to understand their legal rights or exercise them because of their socioeconomic circumstances.

(Patchesky Firstly published in 1991 by Northeastern University Press, Rosalind Pollack's revocation and Women's Choice The State, Fornication, and Reproductive Freedom 13) Family pressure, social smirch, and legal obstacles have forced women to seek out unlicensed medical professionals who constantly take advantage of them and carry out parlous, invasive revocation procedures without the necessary knowledge or training.

SharadD. Iyengar, Kristina Gemzell Danielsson, and Kirti Iyengar absence of any peril to one's health or life. also, revocation education should start in council and be made a demand for grown-ups entering coitus education at the high academy and council situations.( Sophie Cousins," Women's bodies are under attack

The intimidating reality of reproductive rights in India and the US," Quartz, September 12, 2017) Denying people their sexual and reproductive rights will only make the current revocation situation worse.

Strict action must be taken against medical professionals who engage in unethical geste and perform illegal revocations. also, original police authorities must work with grassroots activists to seriously apply door- to- door knowledge juggernauts for pastoral women and men. Post-abortion care must be bettered and there must be regular comforting of family members and Panchayat position institutions to exclude the taboo associated with revocation.

  1. The MTP (Amendment) Bill must give every woman the complete freedom to end a pregnancy at any stage, provided that doing so won't put her life or health in danger.
  2. If there is a chance that the woman will experience mental harm as a result of carrying the pregnancy past term, the Medical Board must not prevent an abortion of a pregnancy with a foetal abnormality without a needless delay.
  3. In order to combat youth ignorance and prejudice, education on abortion laws, methods, and procedures should start in college or high school and be taught in a responsible manner.
  4. There needs to be better Center-State coordination for developing policies and enforcing abortion laws, as well as standardization of data on safe and unsafe abortions.
  5. In villages where women experience social rejection for choosing abortion, knowledgeable counselors must be chosen to provide guidance to family members and Panchayat level institutions.
  6. To promote better abortion literacy, the Central and State governments must make a special app for sharing information on safe abortions available.
  7. In order to prevent abortion from turning into a business for private players, the budget allotted for infrastructure development and equipment purchases for abortion centers needs to be increased.

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