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A Brief Overview Of Abortion Laws: MTP ACT 1971 And It's Amendments

According to oxford, language Abortion is defined as the deliberate termination of a human pregnancy, most often performed during the first 28 weeks of pregnancy. Definition of abortion may defer from one source to another. Abortion is the termination of a pregnancy by removal or expulsion of an embryo or foetus.

It is said to be one of the safest medical procedures if done properly. Modern methods use medication or surgery for abortion. The word Abortion is used for induced abortion, an abortion that occurs naturally and without intervention is known as a miscarriage. Abortion performed under medical supervision is the safest whereas unsafe abortion is a major cause of maternal deaths. Medical abortion and surgical abortion are two types of abortion that can be performed safely.

Abortion is legal in many countries, but some countries are still struggling to put in legal abortion because of various reasons concerning medical termination of a pregnancy. India has legalized abortion under the Medical Termination of Pregnancy Act 1971. The act is called ahead of its time in giving reproductive rights to the citizens of the country. The act has been amended over various years bringing in the necessary changes it required with time.

Abortion is a very sensitive topic of discussion. But with the right laws in place, it can be used for the welfare of the citizens of the country. A complete abortion ban cannot be acceptable anywhere. There are a number of reasons which make abortion an absolute necessity. The right can be used for unethical reasons, that's where legislation comes in, to make sure that it is used for necessary reasons and not misused by the public.

Unsafe abortion is a major concern, and it is seen mainly in the countries where abortion is not legal or even if its legal safe measure of abortion is not accessible for the general public. The World Health Organization states that "access to legal, safe and comprehensive abortion care, including post-abortion care, is essential for the attainment of the highest possible level of sexual and reproductive health".

According to research the rate of abortion in countries where it is legal is the same rate in the countries where it's illegal. 45% of abortions performed are unsafe and done without medical supervision. It is a major issue in developing countries where people lack awareness and the basic facilities required for safe abortion. Unsafe abortion is a grave public crisis, and it is also one of the leading causes of death during pregnancy and childbirth. WHO has labeled safe abortion as a "fundamental right of women irrespective of where they live" and unsafe abortion as a "silent pandemic".

The measure taken to reduce this silent pandemic should be:

  • Making abortion legal and providing reproductive rights legal
  • Accessibility to safe abortion and proper birth control measures
  • Awareness about family planning and reproductive rights
  • Affordable medical and health facilities
  • Availability of modern birth controls

Abortion rights come within the purview of reproductive legal rights given to women.

WHO has defined reproductive rights as:

Reproductive rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing, and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. They also include the right of all to make decisions concerning reproduction free of discrimination, coercion, and violence.

Many international organizations have supported the legalization of abortion and looked upon lack of freedom on reproductive rights as "gender-based violence". The rights of the women's body should depend upon the women. Abortion should be a legal right given to women everywhere. The UN has estimated in 2017 that repealing anti-abortion laws would save the lives of nearly 50,000 women a year.

Historical Background
Abortion has been performed in the past using many herbal remedies. Abortion was practiced in ancient times as well. There's an abortion performed by barbers mentioned in the Ramayana. An 8th-century Sanskrit text instructs women wishing to induce an abortion to sit over a pot of steam or stewed onion. There's evidence suggesting abortion was performed in Japan in the 12th century. In Greek and Roman, abortion was performed was midwives in the early stages of the pregnancy.

There were various theories and myths related to abortion in the Greek world. Jewish believed in the priority of a mother's life over the foetus and thus abortion was acceptable. Stoics morally accepted abortion, they believed foetus to be plant-like and not animal life. Aristotle quoted abortion as "the line between lawful and unlawful abortion will be marked by the fact of having sensation and being alive." In Christianity, foetus is considered a human being, and abortion is condemned upon.

There was a wide change in the 19th century regarding abortion. Abortion was legal under the common law at early stages but in the English-speaking countries, it was not permitted at any stage. the English law on abortion was first codified in legislation under sections 1 and 2 of the Malicious Shooting or Stabbing Act 1803.

The Bill was proposed by the Lord Chief Justice of England and Wales, Edward Law, 1st Baron Ellenborough to clarify the law relating to abortion and was the first law to explicitly outlaw it. The Act provided that it was an offence for any person to perform or cause an abortion. The punishment for performing or attempting to perform a post quickening abortion was the death penalty (section 1) and otherwise was transportation for fourteen years (section 2).

In 19th century America, abortion was not regulated much, it was performed in various states during the 1840s. but things changed quickly from the 1820s some anti-abortion statutes were carried out, American medical association condemned abortion. Some states put stringent punishments and by 1910 every state had anti-abortion laws. France accepted abortion as a social necessity and a part of family and health planning.

In India, The Medical Termination of Pregnancy Act was passed in the year 1971. Before the act, Abortion was a criminal offence under section 312 of the Indian Penal code 1880. It was an offence to perform an abortion except when the mother's life was at stake. Someone who caused a woman to go through abortion would be punishable for 3 years and or a fine and if a woman herself performs abortion she would be punishable for 7 years and or fine. Even after 50 years of legislation of abortion under MTP 1971, section 312 of India Penal code 1880 is still a criminal offence. And the act serves as an exception.

During the 1960s, abortion was legal in 15 countries, the Ministry of Health and Family needed to set up and provide the legal framework for abortion in India, as well as the number of abortions, was increasing in the country. The government appointed the Shah committee led by Mr. Shantilal Shah in 1964 to come with a suggestion for the drafting of abortion laws in India.

The committee carried out thorough research keeping in mind the socio-economic, legal, and medical aspects. The report was prepared in 1966, according to the report, there will be around 3.9 million induced abortions every year. The report recommended legalizing abortion. The report was accepted in 1970 and the bill was introduced in the Parliament.

India

India set up a committee to legalize abortion when only 15 countries in the world had made it legal. When MTP was enacted it was largely modeled on the Abortion Act 1967 of the United Kingdom. The legalisation made sure to give reproductive rights to the women of the country. The MTP act has been amended over the years to bring in the necessary changes. Though the government has provided all the necessary legal framework for safe abortion still the country needs a lot of improvement in actually letting the act work for the benefit of the citizens.

The Medical Termination of Pregnancy Act 1971:

The MTP act was passed by both the houses in parliament in August 1971 recommended by the Shah Committee.

The MTP allowed abortion up to 20 weeks of gestation as detailed below:
  • When the continuation of pregnancy is a risk to the life of the mother, or it causes graved mental and physical trauma.
  • When there is a substantial risk that the child, if born or dead would be seriously handicapped due to physical or mental abnormalities
  • When pregnancy is caused due to rape (presumed to cause grave injury to the mental health of the woman).
  • When pregnancy is caused due to failure of contraceptives used by a married woman or her husband.

The MTP act specifies that abortion should be performed by a Medical Professional under Indian law. The consent of only pregnant women is required for termination of pregnancy but in the case of minor or mentally ill, consent of a guardian is required.

The Medical Termination of Pregnancy Act, Amendments 2002

The MTP Act was amended for the first time in 2002 and passed in 2003. The act empowered the district level to give authorization to a private place. A committee should be formed at the district level comprising of gynecologist/surgeon/ anaesthetist and one member should be a woman. It empowered the CMO to select the private place, they seem satisfied with. The act also introduced strict and stringent punishments for MTP being conducted in unauthorized sites.

The Medical Termination of Pregnancy Act, Amendment 2021

The MTP Act was again amended in 2021 bringing in the necessary changes and introducing the needed guidelines. The bill was introduced in January 2020 and was passed by both the houses on March 16, 2021.

The major amendments introduced to the act were:
  • Earlier only married women could seek abortion on the grounds of contraceptive failure, the bill expanded this to unmarried women as well.
  • Under MTP Act, termination up to 12 weeks of gestation was allowed on the advice of one doctor and up to 20 weeks on the advice of 2 doctors. After 20 weeks termination was not permitted. But the bill now allowed all women to terminate pregnancy till 20 weeks of gestation and special categorized women (survivors of sexual abuse, minors, victims of rape, incest, differently-abled women) can seek termination up to 24 weeks.
  • A Medical board should be constituted in all the states and union territories of the country including a gynecologist, radiologist/oncologist, pediatrician, and other members notified by the government. the board will be authorized to terminate the pregnancy even after 24 weeks if fetal abnormalities arise during any period of time.
  • The confidentiality of the women seeking termination will be maintained by the medical professionals.

Gender based sex selection and termination

Female infantized is a major issue in India. People can determine the gender of the child through illegal means and can then decide to terminate the pregnancy. Medical professionals often fear this and usually decide not to terminate a pregnancy. The MTP should not be misused in such a way and the legislation should make sure that the act is not being misused by the citizens to commit the felony of female infantize.

Unsafe Abortion in India

India is a developing country and usually lacks the resources to provide free and safe health facilities to all its citizens. Unsafe abortion is practiced a lot in India. It is reported around 56% of abortions are unsafe. It is especially prevalent in the rural areas where there is illiteracy and a lack of basic facilities present for safe medical termination of pregnancy. There is a lot of stigmas attached to abortion as well which makes it difficult for women to get medical supervision.

It is estimated around 13 women die every day due to unsafe abortion in the country and it is the third leading cause of maternal deaths in the country. The citizens should be aware of the rights and the government should make sure that all the facilities needed should be provided to safeguard the health of the women of the country.

Judicial Decisions

The MTP 1973 allowed women to have an abortion up to 12 weeks of gestation on the advice of one doctor and up to 20 weeks of gestation on the advice of two doctors. It was amended in the MTP amendment act 2021. It allowed abortion up to 20 weeks on the advice of one doctor and up to 24 weeks on the advice of two doctors, special provisions were mentioned, and the said cases would be allowed to terminate the pregnancy at any time on the advice of medical professionals.

The supreme court has bided by the act and given many rightful decisions over the years. The judiciary over the years handled many cases on abortion decided whether abortion should be granted or not and the decision was based on all the important parameters regarding the case. Here are a few landmark decisions by the Supreme Court of India regarding The Medical Termination of Pregnancy Act:

Suchita Srivastava v Chandigarh [1]
In this 2009 case, a landmark decision was delivered by the three benches of the Supreme Court. Court held that woman's right to make reproductive choices was a component of the right to personal liberty under Article 21 of the Constitution. A women's right to privacy, dignity, and bodily integrity should be respected. It was an important decision that set the course for future decisions by the Supreme Court.

Murugan Narayakar v Union of India &Ors [2]
The apex court allowed the termination of 32 weeks pregnancy of a 13-year-old rape victim. The court held that the physical and mental trauma of the victim should be kept in mind and on the advice of the medical board, the supreme court gave the decision in 2017.

XYZ V the State of Maharashtra [3]
The petition was filed by a deaf and illiterate woman who is a resident of the Tehsil district in Maharashtra in 2021. The victim was gangraped and later when checked by a doctor she was 22 weeks pregnant. The district rejected the court rejected her petition to terminate her pregnancy as the limit prescribed by the MTP act is 20 weeks up to gestation. The case was taken to the supreme court and the three-judge bench allowed the termination and stated the petition will suffer grave injury to mental health on the continuation of the pregnancy.

Mira Santosh V. Union of India [4]
Women filed a petition in Supreme Court to undergo termination in her 24 weeks of pregnancy. The medical board advised that the woman would but not undergo grave mental and physical injury, but the foetus will not able be to survive the extrauterine life, and Supreme Court ordered the termination.

Savita Sachin Patil V. Union of India [5]
In this case, the petitioner was in her 26th week of pregnancy and wanted a termination but the Supreme court rejected her plea. The medical board set up by the court reported that the foetus will "likely" be able to survive with no physical and mental danger. The supreme court gave the decision on the grounds of foetus likely being able to survive.

The judiciary of India over the years has given several decisions on reproductive rights. An important feature of this decision is the recommendation of the Medical Board. the Medical Board's findings on the continuation and termination of pregnancy, which becomes the determining factor for the Court. The court has been criticized for depending their decisions more on the finding of the Medical Board rather than the women's own decisions. The reproductive rights of women should be considered and as the court has stated that the bodily integrity of the women should be respected.

International Approach

Different countries around the world have different laws on abortion. Abortion is a sensitive issue and controversial topic. People usually term abortion as murder and consider it against the right of life. It makes it difficult for lawmakers to draw laws that are beneficial to society concerning abortion. Most European countries including the UK, Switzerland, New Zealand, and some Asian countries including India, China, and North Korea have liberal abortion laws.

But at the same time, Arab countries including Pakistan, UAE, Saudi Arabia, Myanmar have restrictive abortion laws. The catholic church believes the foetus to be a human and abortion is a crime against humanity, so the Latin countries and some states of the USA have very restrictive or almost no abortion laws. Recently Mexico has criminalized abortion.

In the United States, there's always a debate between the Republicans and Democrats over the legalization of abortion. The conservative supporters who profess Christianity believe that more the moment the foetus has a heartbeat, it becomes a growing life and rallies the pro-life movement whereas the democrats on the other side believe reproductive rights and bodily autonomy should be given to the women. The USA has a federal form of government; states have the authority to make laws for the concerned states.

Roe V. Wade

Roe v. Wade, 410 U.S. 113 (1973) was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects a pregnant woman's liberty to choose to have an abortion without excessive government restriction. The case was filed by Norwan McCovey who used the pseudonym Jane Roe for the case. She was 21 years and pregnant with her third child. Roe lived in Texas where it was illegal to get an abortion except when necessary to save the mother's life. Roe filed a lawsuit against the states on the grounds that Texas abortion laws were unconstitutional.

In January 1973, the Supreme Court issued a 72 decision ruling that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a "right to privacy" that protects a pregnant woman's right to choose whether or not to have an abortion. But it also ruled that this right is not absolute and must be balanced against the government's interests in protecting women's health.

The law in Texas gave more relaxation for abortion in 1963 than in the year 2021. Texas made it illegal to get an abortion after a foetus is detected which is around six weeks of pregnancy. It is said to be the most restrictive abortion law in the United States.

The catholic church has a lot of influence in Latin American. It's the area with the most restrictive abortion laws. El Salvador, Mexico has given almost no reproductive rights to the women of the country.

Conclusion
Abortion is always going to be a controversial and important subject to make laws on. It is the responsibility of the legislations to make laws that would serve as the best possible solutions to the problems of society. Abortion comes under the reproductive rights of women. It still is shocking to see how many countries have issues regarding abortion.

The right to have a legal and safe abortion is a fundamental human right as declared by many national and international bodies. But it is a right which people should be made aware of. The stigmas and myths regarding abortion which leads to various illegal and unsafe methods should be eradicated. People should be educated regarding reproductive rights and bodily autonomy. The resources required for safe and legal abortion should be made available to everyone. Abortion is one of the safest medical procedures if done under proper medical supervision but at the same time, Unsafe abortion is one of the leading causes of maternal deaths in the world.

Laws on termination of pregnancy get a lot of criticism and hatred as it is considered against some people's moral, religious, and ethical values. But reproductive rights are a human right. Everyone should have a right to bodily autonomy. The countries and areas still facing issues on making proper laws on abortion need to step up and give reproductive rights to the citizens of the country.

India's MTP act is a step in the right direction. India has the second-highest population in the world. Reproductive rights and family planning are very important for the country. India has made laws on abortion and reproductive rights and has been praised by international bodies for it. But are these laws actually effective? To an extent they are but unsafe abortion is still a major issue in the country. Despite the existence of MTP, women face a lot of difficulties undergoing termination. The country needs to make changes and provide the proper resources and awareness to the citizen of the country for the betterment of the society as a whole.

Bibliography
  • Wikipedia contributors. "Abortion." Wikipedia, 14 Nov. 2021, en.wikipedia.org/wiki/Abortion.
  • Khazan, Olga. "How Many Women Die From Illegal Abortions." The Atlantic, 11 Oct. 2018, www.theatlantic.com/health/archive/2018/10/how-many-women-die-illegal-abortions/572638.
  • "Unsafe Abortion." Wikipedia, 29 Sept. 2021, en.wikipedia.org/wiki/Unsafe_abortion.
  • "Reproductive Rights." Wikipedia, 23 Oct. 2021, en.wikipedia.org/wiki/Reproductive_rights.
  • Santamarina, Daniela Youjin Shin. "How Abortion Laws in the U.S. Compare to Those in Other Countries." Washington Post, 27 Sept. 2021, www.washingtonpost.com/world/interactive/2021/us-abortion-laws-worldwide.
  • Centre for Law & Policy Research. "Abortion Jurisprudence in the Supreme Court of India: Is It the Woman's Choice at All?" Centre for Law & Policy Research, 4 Apr. 2020, clpr.org.in/blog/abortion-jurisprudence-in-the-supreme-court-of-india-is-it-the-womans-choice-at-all.

End-Notes:
  1. (2009) 9 SCC 1
  2. (2017) SCC OnLine SC 1906
  3. https://indiankanoon.org/doc/197167955/
  4. https://uniteforreprorights.org/resources/meera-santosh-pal-v-union-india/
  5. (2017) 13 SCC 436

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