MTP Act: Right to Abortion v/s. Right to Life of the Unborn Child

Context:

• This article is based on the news ”Dilemma in court: Should ‘viable’ foetus be aborted or given life support?” which was published in the Indian Express. A two-judge all-woman Supreme Court bench disagreed on allowing a 27-year-old married woman to terminate her 26-week pregnancy and referred the plea to the Chief Justice of India for consideration by a larger bench.

MTP Act Debate: SC Bench Divided on Woman’s Abortion Request

• The bench had different opinions regarding a request to recall the October 9 order allowing a married mother of two to terminate her 26-week pregnancy:
  • One judge was against allowing the abortion.
  • The other judge emphasized that the woman’s choice to terminate her pregnancy should be respected.
• The woman had moved the apex court seeking its approval to terminate her pregnancy citing medical grounds, including that she was suffering from postpartum depression.
• Additional Solicitor General (ASG) Aishwarya Bhati opposes pregnancy termination, asserting petitioner’s rights must align with the MTP Act provisions.
• Because, section 3(2)(a) of the MTP Act, 1971 allows terminating pregnancies within the first twenty weeks. 

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Evolution of Abortion Law in India: MTP Act

• Pre-1960s: Illegal Status of Abortion
  • Abortion was illegal and punishable under Section 312 of the Indian Penal Code (IPC) before the 1960s.
• 1964: Formation of Shantilal Shah Committee
  • It was set up to examine abortion-related matters and the necessity of laws around abortion in India.
  • The Committee recommended liberalization of abortion laws to reduce unsafe abortions and maternal mortality.
• 1971: Introduction and Passage of MTP Act
  • MTP Act was introduced and passed by Parliament in August 1971, based on the recommendations of the Shantilal Shah Committee.
  • The MTP Act allowed abortion up to 20 weeks of pregnancy and granted immunity to doctors performing abortions in line with its provisions.
  • The MTP Act allowed termination of pregnancy by a medical practitioner in two stages.
    • For termination of pregnancy up to 12 weeks from conception, the opinion of one doctor was required.
    • For pregnancies between 12 and 20 weeks old, the opinion of two doctors was required

• 2002: Brief Amendment for Medical Abortion Pills
  • The MTP Act was briefly amended in 2002 to allow the use of medical abortion pills, mifepristone and misoprostol.
• 2021: Amendment to Extend Abortion Limit
  • The MTP Act was amended in 2021, extending the abortion limit from 20 to 24 weeks.
  • The amended MTP Act allowed the termination under the opinion of one doctor for pregnancies up to 20 weeks. 
  • For pregnancies between 20 and 24 weeks, the amended law requires the opinion of two doctors.
  • The MTP Act (amendment) specified seven categories of women eligible for termination between 20 and 24 weeks of pregnancy:
    • Survivors of sexual assault or rape or incest;
    • Minors; 
    • Change of marital status during the ongoing pregnancy (widowhood and divorce);
    • Women with physical disabilities 
    • Mentally ill women including mental retardation
    • The foetal malformation
    • Women with pregnancy in humanitarian settings or disaster or emergency situations.
• MTP Act; Significance
  • The MTP Act prohibits the disclosure of the identity and details of a woman whose pregnancy has been terminated, unless authorized by existing laws.
  • Further, Supporting the implementation of the MTP Act will contribute to achieving Sustainable Development Goals (SDGs) 3.1, 3.7, and 5.6, which aim to reduce preventable maternal mortality.

Global Abortion Laws

• Countries Banning Abortions (24 countries)
  • Abortions are illegal in 24 countries, where about 90 million or 5 percent of women of reproductive age reside.
  • These include Senegal, Mauritania, and Egypt in Africa, Laos and the Philippines in Asia, El Salvador and Honduras in Central America, and Poland and Malta in Europe
• Countries Permitting Abortions with Restrictions (50 countries)
  • Includes Libya, Indonesia, Nigeria, Iran, Venezuela.
  • Permitted in cases of a woman’s health risk.
  • Some allow in cases of rape, incest, or fetal abnormalities.
• Countries with Accessible Abortion Laws
  • Canada, Australia, and most of Europe.
  • Few restrictions, primarily gestational time limits (typically 12-14 weeks).

What are the concerns related to the abortions?

• Foetal Pain: Concern that fetuses beyond 20 weeks of gestation may experience pain during abortion.
• Psychological Impact: Some argue that young women who undergo abortion may face an increased risk of subsequent depression.

• Reduced Adoptable Babies: Critics suggest that instead of abortion, women should consider giving unwanted babies up for adoption, as single parenthood becomes more accepted.
• Abortion as Contraception: Moral objections to using abortion as a convenient method of birth control, emphasizing the value of unborn life.
• Responsibility and Morality: Argues that individuals should accept responsibility for their actions and consequences, especially when becoming pregnant.

What are arguments in favour of Abortion?

• Bodily Autonomy: Abortion upholds a woman’s right to bodily autonomy, enabling her to make decisions about her own body and reproductive choices.
• Choice and Life Course Impact: Allowing abortion provides individuals the freedom to choose their life course, preventing unwanted pregnancies from adversely affecting education, career, and mental well-being.
• Avoiding Unsafe Abortions: Legalizing abortion helps to prevent unsafe abortions, which can pose serious risks to women’s health and may lead to fatalities.
  • According to the UN Population Fund, close to eight women die every day in the country from causes related to unsafe abortions.
  •  According to a report published by the Center for Reproductive Rights, “legal and practical barriers are a serious impediment” with unsafe abortions in India accounting for  20 per cent of all maternal deaths.
• Changing Social Norms: Laws should adapt to changing social norms, acknowledging the prevalence of premarital sex, live-in relationships, and diverse family structures.
• Foetal Abnormalities: The abnormalities are not always found upto 20 weeks, not allowing women a safe access to abortion puts her life in danger.
• Addressing Marital Rape Victims: Abortion should be accessible for women who may have conceived due to sexual assault or marital rape, respecting their mental and physical well-being and preventing further harm.

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Way Forward

• Recognize Abortion as a Human Right: Acknowledge abortion as a fundamental human right, as supported by international frameworks such as the United Nations, the European Court of Human Rights, and the African Commission on Human and People’s Rights.
• Commit to Prevent Unsafe Abortions: Reiterate and uphold the commitment made by 179 governments at the 1994 International Conference on Population and Development to prevent unsafe abortions.
• The MTP Act require abortion to be performed only by doctors with specialisation in gynaecology or obstetrics.
• • According to the study, there is a 75% shortage of such doctors in community health centers in rural areas, pregnant women may continue to find it difficult to access facilities for safe abortions.
• Extended Abortion under MTP Act: Permitted Beyond 24 Weeks Only for Substantial Foetal Abnormalities Diagnosed by Medical Board
• Address Criminalization of Abortion: The UN Recognize that the criminalization of abortion is a form of gender-based violence and may violate women’s rights to health, dignity, autonomy, and equality.
• WHO’s Safety Classification: The WHO has classified abortion procedures into three categories, namely, safe, less-safe and least-safe.
  • Lancet study from 2010 to 2014 showed 54% of abortions were safe, 30% were less safe, and 14% were least safe.
  • The developing world accounted for more than 97 per cent of abortions classified under the latter two categories.
• Maternal Health and Mortality: Acknowledge that unsafe abortions are a leading cause of maternal mortality, contributing to 13% of such deaths.
  • Address the urgency of improving the safety of abortion procedures.
• Promote Societal Well-being: Emphasize that ensuring safe abortion access is not just about human rights but also contributes to the overall well-being of societies.

Conclusion

The recent Supreme Court case highlights the ongoing debate over the Medical Termination of Pregnancy or MTP Act, underscoring the challenge of balancing women’s rights to abortion within the legal framework.