Legislative Framework to Terminate Pregnancy in India

What’s in Today’s Article?

• Why in News?
• What is the Case About?
• What is the Law on Abortion in India?
• Has the Court Allowed Termination Beyond 26 Weeks?
• What About the Rights of an Unborn Child?

Why in News?

• The Supreme Court is hearing a married woman’s request to end her 26-week pregnancy.
• The case has travelled to two different Benches of the SC, raising crucial questions on the decisional autonomy of a woman to abort, and the legislative framework.

What is the Case About?

• A 27-year-old married woman, who already has two boys, has argued that the pregnancy was unplanned and her family income is insufficient to support another child.
• Recently, a two-judge Bench of the SC allowed the termination of the pregnancy.
• The court reasoned that an unwanted pregnancy due to failure of contraceptive methods is the same as a forced pregnancy for which termination is allowed up to 24 weeks.
• However, AIIMS (Delhi) wrote to the SC that it would need a directive on whether a foeticide (stopping the foetal heart) can be done before termination since the foetus is “currently viable”.
  • Foetal viability is the time after which a foetus can survive outside the womb.
• After the AIIMS report, the same Bench was split on allowing the abortion, and the case went before a three-judge Bench headed by Chief Justice of India (CJI).
  • The Bench called for a fresh medical report to indicate the foetal health and medical condition of the woman.

What is the Law on Abortion in India?

• The Medical Termination of Pregnancy (MTP) Act, 1971:
  • It was introduced to liberalise access to abortion since the restrictive criminal provision (in the IPC) was leading to women using unsafe and dangerous methods for termination of pregnancy.
  • The 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.
    • In the second case, the doctors must determine if the continuation of the pregnancy would involve a risk to the pregnant woman's life or the child would suffer physical or mental abnormalities.
• The MTP (Amendment) Act, 2021:
  • The law allowed for a 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 government has issued the new Medical Termination of Pregnancy (Amendment) Rules, 2021, which define the situations that define eligibility criteria for termination of pregnancy up to 24 weeks.
  • The amended act and the MTP (Amendment) Rules, 2021, specified seven categories (Survivors of sexual assault or rape or incest; Minors; etc) of women who would be eligible for seeking termination of pregnancy, for a period of up to 24 weeks.
  • After 24 weeks, a medical board must be set up in “approved facilities”, which may “allow or deny termination of pregnancy” only if there is substantial foetal abnormality.

Has the Court Allowed Termination Beyond 26 Weeks?

• Yes, in several cases. For example, the SC (on August 21) allowed termination of pregnancy of a rape survivor whose pregnancy was at 27 weeks and three days.
  • However, the difference in this case seems to be the marital status of the woman, which indicates that the conception is consensual and not a forced pregnancy in that sense.
• In September 2022, the SC allowed abortion for an unmarried woman who was 24 weeks pregnant, and was in a consensual relationship.
  • The Bench cited “transformative constitutionalism” that promotes and engenders societal change.
  • The law must remain cognizant of the fact that changes in society have ushered in significant changes in family structures.
• There are also instances in which courts have overruled the decision of the medical board to allow termination.

What About the Rights of an Unborn Child?

• The observations by the CJI-led Bench (in the above case) oscillated between the rights of a woman “must trump” when it comes to abortion, and the need to “balance out the rights of the unborn child”.
• While courts have read the MTP Act liberally, the test of “foetal viability” as a benchmark to allow abortion is new in India.
  • The landmark 1973 US Supreme Court verdict in Roe v Wade made abortion a constitutional right up to the point of foetal viability.
  • Foetal viability in 1973 was pegged at 28 weeks (7 months), which is now with scientific advancement lower at 23-24 weeks.
• The criticism of India’s law is that the decision to terminate after 20 weeks is shifted to doctors and not the woman.
  • While this aspect is not challenged in court, frequent cases of women approaching the court point to a legislative gap.
• The Indian legal framework on reproductive rights tilts to the side of the woman’s autonomy to decide and choose more than towards the rights of the unborn child.
• However, the right of an unborn child has been the basis of legislation dealing with succession or the law prohibiting sex-determination of foetuses.
  • Section 416 of CrPC also provides for postponement of the death sentence awarded to a pregnant woman.

Q1) What is the transformative constitution in India?

The Transformative Constitution argues that the Constitution was intended to transform not merely the political status of Indians from subjects to citizens, but also the social relationships on which legal and political structures rested.

Q2) What do you mean by right to reproductive choice?

The right to reproductive choice means that women have a right to choose whether or not to reproduce, including the right to decide whether to carry or terminate an unwanted pregnancy and the right to choose their preferred method of family planning and contraception.

Source: In SC, questions of foetal viability and rights of unborn child