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TO HAVE IT OR TO NOT HAVE IT?

Updated: Oct 5

Author: Janhavi Lakhmani, III year of BLS.,LL.B from Adv Balasaheb Apte College of Law.


“Abortion is part of being a mother and of caring for children, because part of caring for children is knowing when it's not a good idea to bring them into the world.”

-Katha Pollitt


An overview

In layman’s language, ‘Abortion’ stands for deliberate termination of pregnancy by means of certain medicines or surgical methods conducted by a licensed healthcare professional.

However, the said definition preserves the core elements worldwide but strategically varies in terms of rights and regulations. In an open forum, allowing abortion is broadly seen under two different lenses. First, the choice to have or to not have the child is solely the mother’s say and that is a fraction of her reproductive rights. Secondly, the State is obligated to protect life of the foetus. These aforementioned slants substructure laws for allowing or denying abortion based on various factors, including signs of foetal abnormalities, risk to the mother’s life, etc.


Rumination of Laws

In the Indian Penal Code, section 312 to 316 bear on provisions of abortion under the chapter of offences affecting human body. It underlines that if a person knowingly undertakes a miscarriage to happen, will thoroughly be punished with imprisonment for three years or fine or both. The gravity of offence intensifies under section 313 when the miscarriage occurs pertaining to the absence of the woman’s consent. It makes it paltry whether a person killed the foetus or effectuated the abortion, he will be charged under section 316, guilty of culpable homicide.

An exception to these laws was made, considering the changing scenarios and being more receptive towards woman’s health maintenance. Constituted in the year 1964, the Shantilal Shah Committee liberalized the abortion laws in India by giving effect to the report on Medical Termination of Pregnancy Act 1971. The Act in eight sections regulates crucial aspects of a woman’s pregnancy, subtly the conditions and circumstances in which it can be terminated by registered medico practitioners.


The Act legalised abortion on conditions like, pregnancy should not have exceeded the bar of twelve weeks and if be it otherwise, two medical practitioners in good faith are of the opinion that continuing the pregnancy may involve a risk to the life of the pregnant woman or if the child were born would suffer several abnormalities.


The law enables abortions to be performed in any government-run hospital, but any private-sector institution must be approved or certified. The legislation offers exceptions for abortions performed to save a woman's life: the doctor does not need to have the required experience or training but must still be a licenced medical practitioner, and a second opinion is not required for abortions.


Manoeuvre towards reformation

In Nikhil Datar vs Union of India, NM was 22 weeks pregnant when her doctor discovered signs of alarming fetal abnormalities. The diagnosis was to be confirmed by a test but for these tests to be conducted, she had to wait for 2 weeks. Upon taking the test, it was confirmed that there were material abnormalities in the heart of the foetus. As a result, even if the child was given birth it would require an eternity of surgeries and still the odds of sudden death were high.

Dr. Nikhil Datar, an obstetrician, recommended her to get an abortion taking into account the risk to her life. But as per the regulations laid down by the MTP Act, legality of abortion in selective cases of grave injury extends until 20th week of pregnancy is achieved. After which, the pregnancy cannot be terminated despite of the fact that the mother’s life is at risk.


The High Court dismissed their plea, failing to acknowledge N.M.'s significant mental 9suffering as a result of being compelled to carry a pregnancy to term, which medical experts said might result in foetal death or the birth of a child with a severely impaired quality of life. A week following the Court's judgement, N.M. miscarried.


Passed by the Rajya Sabha in the year 2021, the Medical Termination of Pregnancy (Amendment) Bill, 2021 strives to emphasize women’s reproductive rights in India and discerning those hundreds of writ petitions filed in various courts. Making allowances for women to exercise their rights as they deem fit. The forenamed Bill proposes to amend and introduce the following provisions:

  • Opinion of one medical practitioner makes the grade to terminate pregnancy of up to 20 weeks, earlier 12 weeks.

  • It requires opinion of two doctors if termination of pregnancies amounting to 20-24 weeks is in question. In exceptional cases like rape or incest victim, especially abled women and minors.

  • Beyond 24 weeks, permission granted by a state-level Medical Board would be constituted as an essential ingredient to terminate the pregnancy.

  • Doctors whose expertise is in gynaecology/obstetrics are permitted to conduct abortions.

  • The Bill makes it explicit that details concerning the woman whose pregnancy has been terminated shall be kept confidential, except to a person authorised by law. If the violation of the said provision occurs, it will attract a punishment of up to a year, fine or both.

  • The condition of getting written consent imposed on a minor to get an abortion done has been removed.

Though the Bill postulates as reforming in nature but it doesn’t provides an all-encompassing autonomy to a woman of her own body. Since, terminating the pregnancy after 24 week needs an approval of the Medical Board on being diagnosed with foetal abnormalities. Also, there is no time restraint on the Board to call its shots. Another discrepancy lays with the condition that only gynaecologists or obstetricians are authorised to conduct the termination, which in turn overlooks the fact that India still doesn’t have ground breaking medical facilities. It has been pointed out by studies that despite of hormonal therapy, a transgender can conceive which the Bill is not patent if the term ‘woman’ includes transgender too.


The proposed amendments might soon require to be amended, considering the underlying issues overlooked by the law-makers. As of now, they are just enough to pass through the test of time.