In a recent judgement surrounding abortion laws in India, the Supreme Court used Article 142 to allow a medical termination for a 14-year-old minor who was a victim of sexual assault, despite the gestation period of nearly 30 weeks.
Understanding Prenatal Development Stages
- Zygote: The initial cell resulting from the fusion of sperm and egg during fertilization, marking the beginning of pregnancy.
- Embryo: Refers to the early stage of development from fertilization until about the 8th week, where basic structures and organs start to form.
- Fetus: Denotes the later stage of development, from the 9th week until birth, characterized by significant growth and maturation of organs and systems.
History of abortion laws in India:
Background:
- In the 1960s, due to a high number of induced abortions, the Indian government established the Shantilal Shah Committee to discuss the legalization of abortion.
- Based on its recommendations, the Medical Termination of Pregnancy (MTP) Act was enacted in 1971 to facilitate safe and legal abortions, aiming to protect women’s health and reduce maternal mortality.
MTP Act and Amendments:
- 1971: The original MTP Act allows licensed medical practitioners to conduct abortions under specific conditions to safeguard women’s health and reduce maternal deaths.
- 2021 Amendment: Introduced changes to expand access to abortion services under certain conditions.
Key Provisions for Pregnancy Termination:
| Time Since Conception | MTP Act, 1971 | MTP (Amendment) Act, 2021 |
| Up to 12 weeks | Advice of one doctor | Advice of one doctor |
| 12 to 20 weeks | Advice of two doctors | Advice of one doctor |
| 20 to 24 weeks | Not allowed | Advice of two doctors for special categories |
| More than 24 weeks | Not allowed | Medical board’s advice for substantial fetal abnormalities |
| Any time if necessary to save the woman’s life | Advice of one doctor | Advice of one doctor |
Key Enhancements in the MTP Amendment Act 2021
- Inclusive Termination Rights: Extends the allowance for terminating pregnancies due to contraceptive failure to unmarried women, in addition to married women, up to 20 weeks.
- Special categories: Specifies “special categories” of women eligible for these provisions, including survivors of rape, incest victims, and other vulnerable groups such as differently-abled individuals and minors.
- Medical Boards Establishment:
- Purpose: To assess the need for abortion beyond 24 weeks due to substantial fetal abnormalities.
- Composition: Includes gynecologists, pediatricians, and radiologists.
- Implementation: To be established by all state and union territory governments.
- Privacy Protections:
- Stipulates that only the registered medical practitioner may disclose details of a terminated pregnancy, and only to individuals authorized by law.
- Penalties: Unauthorized disclosure may result in imprisonment of up to a year, a fine, or both.
Constitutional Context and Rights:
- Right to Abortion and the Constitution:
- Though not explicitly mentioned, the Constitution’s fundamental rights have been interpreted to include reproductive rights and women’s healthcare.
- Article 21 (Right to Life and Personal Liberty): Interpreted to encompass reproductive autonomy and healthcare, as seen in the Suchita Srivastava vs. Chandigarh Administration case, 2009.
- Recent Supreme Court observations emphasize balancing the rights of an unborn child with a woman’s reproductive rights.
Did you know:
- The moral status and legal standing of the fetus, as well as its constitutional rights, continue to be complex issues. However, the Hindu Succession Act, 1956, Section 20, highlights the protection of the fetus’s interests from conception.
Global Trends in Abortion Laws
- Liberalization Movement: Since the 1990s, around 60 countries have liberalized their abortion laws, expanding legal grounds for the procedure.
- Exceptions: In contrast, the United States, El Salvador, Nicaragua, and Poland have tightened their abortion laws, reducing legal grounds for abortion.
- Significant Legal Shifts: In 2022, the U.S. Supreme Court overturned the constitutional right to abortion established by Roe v. Wade, marking a pivotal moment in abortion law history.
Key Provisions & Judgement regarding Abortion Laws:
Article 142: Grants the SC the extraordinary power to deliver “complete justice” in any case, allowing it to go beyond the limits of existing laws if necessary to ensure fairness and justice.
Section 312 of IPC: criminalizes intentional causing of miscarriage, if it was not done in good faith.
K.S. Puttaswamy Case (2017): The SC recognized the constitutional right of women to make reproductive choices under Article 21 of the Indian Constitution.
Bhatou Boro v. State of Assam (2017): Gauhati High Court overruled the medical board’s refusal to give an opinion for the termination of pregnancy of over 26 weeks of a minor rape survivor.
PYQs
[CSP-2012] Q. The endeavour of ‘Janani Suraksha Yojana’ Programme is
1. to promote institutional deliveries
2. to provide monetary assistance to the mother to meet the cost of delivery
3. to provide for wage loss due to pregnancy and confinement
Which of the statements given above is/are correct?
(a) 1 and 2 only
(b) 2 only
(c) 3 only
(d) 1, 2 and 3
Ans: (a)
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[CSP-2012] Q. With reference to National Rural Health Mission, which of the following are the jobs of ‘ASHA’, a trained community health worker?
1. Accompanying women to the health facility for antenatal care checkup
2. Using pregnancy test kits for early detection of pregnancy
3. Providing information on nutrition and immunization
4. Conducting the delivery of baby
Select the correct answer using the codes given below:
(a) 1, 2 and 3 only
(b) 2 and 4 only
(c) 1 and 3 only
(d) 1, 2, 3 and 4
Ans: (a)
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[CSM-2019] Q. What are the continued challenges for Women in India against time and space?
Ref: