India’s Abortion Law Fails To Fully Protect A Woman’s Reproductive Rights

Posted on November 2, 2016 in Human Rights, Society

By Kunal Basu

Recently there has been a legal debate over the constitutional validity of the Medical Termination of Pregnancy Act, 1971 vis-à-vis an individual’s constitutional right to abort a foetus within the ambit of the law.

There are several issues with the law that need to be addressed. One of the issues with the Act can be explained well with the 2011 Niketa Mehta case wherein the woman (Mehta) had a nervous miscarriage after seeing a certain physical abnormality in the foetus that had happened due to a congenital heart disease.

Her application for abortion was turned down by the Bombay High Court in a ruling that said that such an act would violate the constitutionality of an individual’s right to life. It is very tragic that the High Court’s view was so parochial in approach to the extent that it caused the petitioner (Mehta) to suffer a miscarriage.

Fortunately, the Apex Court on further appeal overturned the High Court’s ruling because there was a grave possibility that the woman could suffer from a nervous shock that could be detrimental to her health which is why the abortion was permitted.

In the United States, the legal position on a woman’s right to seek an abortion is very clear. In the historic ruling stated in Roe vs. Wade (1973), it was held by a majority of the Supreme Court justices that the right to undergo an abortion is a fundamental right of every person under the Ninth and Fourteenth Amendments of the Constitution read in pari materia (statutes that share a common purpose).

Hence, any statutory law that attempted to restrict this right that a woman had to abort a foetus was to be tested on the anvils of fundamental rights guaranteed under the American Constitution. The right to abort a foetus must be legally consistent at all times with an individual’s right to claim privacy under the Ninth Amendment of the American Constitution.

In India, there is no specific law that makes way for the right to abortion to be made into a  fundamental right. Although Article 21 of our Constitution specifically says that no person is to be deprived of their right to life except according to procedure established by law, yet statute law is silent on whether abortion ought to fall into this category.

The Ninth Schedule of our Constitution provides for the protection of certain laws, whose constitutional validity would fall outside the ambit of judicial inspection. However, it is ironic that a sensitive issue like abortion is not on the schedule.

Quite recently, the Supreme Court allowed a rape survivor to terminate her 24-week-old pregnancy because the foetus posed a vital threat to her life.

Although the law says that a person can’t terminate a pregnancy after 20 weeks, the Court, in granting judicial leeway, permitted the same on the grounds that if the foetus was not aborted in time, it could have dangerous repercussions on the woman’s life. However, this ruling is not comprehensive in its approach, but can be applied on a case-to-case basis.

Under Section 3(2) of the MTP (Medical Termination of Pregnancy) Act states that medical abortion is permitted if the pregnancy period does not exceed 12 weeks.

A woman can’t terminate the pregnancy after 20 weeks, but there is always a possibility that there could be several mental and physical health risks to the woman during this period, including dangers caused to her life because of the foetus as has been mentioned before.

The law failed a 14-year-old pregnant rape survivor in Bareilly who was forced to give birth to a child she wasn’t emotionally and financially equipped to raise, and didn’t want in the first place. According to the law, in case the woman is a rape survivor, Explanation 1 to the section mentioned above states that registered medical professionals may terminate pregnancies, as “the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.”

The better approach would be to follow the Roe ruling, as that would provide a way out of the complexities of the legislative and judicial processes on the law on abortion.

In many states, abortion is carried out in ways that are not recognised by law. People don’t visit qualified medical professionals for a reasoned opinion on whether or not to perform an abortion, post meeting the legal requirements of Section 3 of the MTP Act. Abortions are carried out by ‘Quacks’ and ‘Unani Doctors’ – people with no formal medical training who take pride in having the know-how and technical ‘expertise’ to facilitate an abortion using primitive means such as midwifery. Such practitioners are not well versed in medical procedures, such as using local anaesthesia and proper surgical equipment. They follow methods when employed have a high risk of causing an unwanted death.

Although this is illegal, the MTP Act is toothless and can’t curtail such medical malpractices, as the law relating to abortion is, in itself, legally ambiguous and subject to judicial scrutiny.

Instead of subjecting the MTP Act to constitutional validation tests, it would be incumbent if the abortion law in India was amended suitably, so as to allow a woman the right to abort her foetus on reasonable grounds. As much as a woman has the right to decide whether or not to engage in the process of reproduction, she also has the right to get an abortion.

The law enshrined in international legislations, covenants and conventions such as the International Conference on Population and Development (ICPD) clearly state that the right to give birth to a child is as much a legal right of every woman, as much as the right to abort.

I am not fully trained to be an advocate but provisionally enrolled as one with the State Bar Council. But as an individual, I am of the legal viewpoint that Sections 3 and 4 of the Medical Termination of Pregnancy Act, 1971 be urgently amended as expediently as possible. Such an amendment shall give women from all backgrounds the right to pursue an abortion if it is necessary for their mental and physical well-being.