Life, Liberty and the Unborn Child – India’s chasm with abortion laws

 

Life, Liberty and the Unborn Child – India’s chasm with abortion laws

Abortion is an extremely sensitive and complicated subject, something that civilisations across time and space have had a difficult time dabbling with. Independent India’s story has been no different as laws and attitudes towards abortion have witnessed a significant shift over the course of 7 decades.

Up until the 1960s abortion was illegal in India under several provisions of the Indian Penal Code, 1860 (‘IPC’)

Section 312 of IPC - Causing miscarriage.—"Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

(A woman who causes herself to miscarry, is within the meaning of this section).

Section 313 of IPC - Causing miscarriage without woman's consent.—"Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

Section 314 of IPC - Death caused by act done with intent to cause miscarriage.—"Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

It is evident that abortion in the first two decades was dealt with a heavy hand. However, such heavy-handed approach incentivised people to opt for unsafe abortions leading to rise in maternal mortality rates. This prompted the government to set up the Shantilal Shah Committee and ascertain whether the country needed a comprehensive legislation to curb the menace. Based on the report of the Shantilal Shah Committee, The Medical Termination of Pregnancy Act, 1971 was passed.

The Medical Termination of Pregnancy Act, 1971 (‘MTP Act, 1971)–

The MTP Act, 1971 came into effect in 1972 in the whole of India except the state of Jammu and Kashmir and decriminalised abortion under specific circumstances. The aforementioned act provided for termination of pregnancy in cases –

A)     Where the length of the pregnancy does not exceed 12 weeks if such medical practitioner

or

B)      Where the length of the of the pregnancy exceeds 12 weeks but does exceed 20 weeks if not less than two registered medical practitioners are of the opinion that –

I.                    The continuance of the pregnancy would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health.

 

II.                  There is a substantial risk that if the child were born, It would suffer from such physical or mental abnormalities to be seriously handicapped.

 

It is pertinent to note that grave injury to mental health under the aforementioned act included pregnancy alleged to have been caused by rape or as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children. The MTP Act decriminalised and liberalised the abortion jurisprudence in India to a great extent. It served India well for a period of over 5 decades, however, it was still wrought with certain issues. The desire to liberalise the abortion jurisprudence in India further, culminated in the MTP Amendment Act, 1971 (‘Amendment Act’). The amendment act sought to make abortions more accessible and brought about several changes which have been enumerated in the table below –

 

Issue	MTP Act, 1971	Amendment Act, 2021
Permissible time period for termination of pregnancy	Upto 12 weeks with the consent of one registered medical practitioner.	Upto 20 weeks with the consent of one registered medical practitioner.
	Upto 20 weeks with the consent of two registered medical practitioners.	Upto 24 weeks with the consent of two registered medical practitioners
		Medical Board Approval beyond 24 weeks (only in cases of substantial foetal abnormalities).
Scope	Only applies to married women.	Applies to both married and unmarried women.
Punishment for breach of confidentiality	Fine upto Rs 1,000	Fine and/or imprisonment upto 1 year.

 

The Hon’ble Supreme Court of India in a landmark judgement – X Vs The Principal Secretary, Health and Family Welfare Department and Ors., 2022 further expanded the scope of abortion and reproductive autonomy of women when it took a wider view of the Rule 3B of the MTP Rules has been made in pursuance of the provisions of Clause (b) of Sub-section (2) of Section 3 of the MTP Act.

 

 

 

Rule 3B is as follows –

 

Women eligible for termination of pregnancy up to twenty-four weeks. - The following categories of women shall be considered eligible for termination of pregnancy under Clause (b) of Sub-section (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely:

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or

emergency situations as may be declared by the Government.

 

The Hon’ble Supreme Court took a purposive rather than a restrictive interpretation of the provision and observed that change of marital status  should not be confined to merely widowhood and divorce.  It further observed that the Parliament by amending the MTP Act intended to include unmarried women and single women within its ambit. This is evident from replacement of the word ‘husband’ with ‘partner’.

 

In the present case, the Petitioner was deserted by her partner at the last stage in June 2022 causing her mental agony, trauma and physical suffering. The petitioner averred that excluding unmarried and single women from the ambit of the statute goes against the purpose of legislation. The same can be inferred by a mere comparison of the two provisions before and after the 2021 amendment –

 

MTP. 1971	MTP Amendment, 2021
Explanation 2: Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.	Explanation 1: For the purposes of Clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose  of limiting the number of children or  preventing pregnancy, the anguish caused  by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

 

It was further observed that there is no basis to deny unmarried women the right to medically terminate the pregnancy, when the same choice is available to other categories of women. A woman’s right to reproductive is an inseparable part of her personal liberty under Article 21 of the Indian Constitution which guarantees right to life and personal liberty. The All India Institute of Medical Sciences, Delhi was directed to constitute a Medical Board and it was stated that in the event it concludes that the fetus can be aborted without danger to the life of the Petitioner, a team of doctors shall carry out the abortion in terms of her request.