By Toshita Jha
Introduction
Abortion or the wilful killing of a foetus inside the womb of a woman, through medical or surgical methods[1] has been a topic of debate across the world polarising the society on a moral front. In academic discourse, any question concerning termination of pregnancy through abortion involves in its fold a discussion on whether such abortion should be a choice. Additionally, the choice has to be evaluated in the light of the right to life of the unborn child, leading us to the ‘pro-choice’ and the pro-life debate.[2]
In India, abortions are regulated by the Medical Termination of Pregnancy Act, 1971 (hereinafter, “Act”).[3] However, recently, the Lok Sabha passed The Medical Termination of Pregnancy (Amendment) Bill, 2020[4] (hereinafter, “Bill”) in March. It was deemed as a progressive step that seeks to empower Indian women and removes all obstacles for them to exercise the choice of abortion. In this article, it has been analysed as to why, despite the positive development in the law, its potential misuse could create havoc in society. Further, neither of the approaches – ‘pro-choice’ or ‘pro-life’ – can ever be adopted in its entirety in India. There is bound to be an overlap of the two in the context of the Indian socio-economic realities.
The Law of Abortion in India
The Parliament passed the Act in 1971 on the recommendation of the Shantilal Shah Committee in pursuance of the objective of legalizing abortion to address the growing number of unsafe abortions in India.[5]
The Act allows a woman to terminate her pregnancy through abortion in four instances. Firstly, when there is a serious risk to the life of the pregnant woman, or it could cause grave injury to her mental health.[6] Secondly, when there is a substantial risk to the child and its health.[7] Thirdly, when a pregnancy is alleged to have been caused by rape, grave injury to the mental health of the woman is presumed.[8] Lastly, where the pregnancy is caused by the failure of any contraceptive devices used by a married woman or her husband.[9]
Furthermore, for abortions within 12 weeks, the opinion of one doctor is needed while consultation with two doctors is required for the pregnancy period between 12-20 weeks.[10] Termination of pregnancy is allowed beyond 20 week s if such a termination in the opinion of the doctor is required to save her life.[11]
The Act, however, appears problematic when it comes to analyse some of its provisions. A major concern that has been highlighted by scholars is its imposition of operational barriers to a woman’s access to abortion by having a requirement of consultation with two registered medical practitioners. This is a far cry in the rural areas when the country already faces a dearth of doctors.[12] Secondly, the permissible upper limit of 20 weeks, set by the Act for abortions done through the permission of two registered medical practitioners fails to take into account the critical cases of victims of rape and sex trafficking, where unwanted pregnancies are detected only in the later stages.[13]
Furthermore, placing a permissible upper limit for abortion is extremely unfair in the case of foetal abnormalities as most of them are detected after the expiration of the permissible duration of 20 weeks.[14] Applying to the court for permission can be a lengthy process, especially in such cases which require a quick response. Lastly, the Act discriminates among the women based on their marital status by allowing only married woman to avail the option of abortion due to failure of contraceptive devices.[15] This is even more problematic in today’s time where live-in-relationships are very common and have been also recognised by Courts. [16] All these problems prompted the legislature to come up with an amendment to remove such technical hurdles in the path of a woman to exercise her choice freely.
Changes introduced by the Bill
The Bill raised the upper permissible limit of abortion to 24 weeks.[17] For abortion in the period between 12-20 weeks, the consultation of one doctor is required.[18] Further, abortions in the period between 20-24 weeks has been allowed only for a specific category of women consisting of those who became pregnant due to rape, incest, pregnancy during minority, and pregnancy in case of a disabled woman,[19] with the consultation of two doctors.[20] Moreover, it replaces the phrase ‘married woman and her husband’ with ‘women and her partner’ thereby addressing the discrimination against non-married women who also face unwanted pregnancies.[21] Additionally, the upper permissible limit for abortion is waived off in cases where the foetus is diagnosed to have substantial abnormalities.[22] Whether termination is necessary in such cases of foetal abnormality is to be determined by a Board consisting of a gynaecologist, a paediatrician, a radiologist and any other member as notified by the State government.[23]
This Bill is a step forward for abortion laws in India, allowing women greater autonomy over their body and child birth. It is indeed a significant step towards ensuring gender justice.[24] This amendment not only allows any woman irrespective of her marital status to seek an abortion but also protects her privacy by making it punishable to reveal her identity.[25]
Possibility of Abuse of choice under this Amendment
A large part of the legislative change seems to conform to the ‘pro-choice’ approach. This can be inferred by considering Explanation 1 to Section 3 of the Bill,[26] which allows a woman to go for abortion because of any contraceptive failure. On a preliminary glance, the introduction of this clause seems justified, but a closer look reveals that this clause shall render the woman with an unrestricted option to abort her child merely on the declaration that there was a failure of contraceptives. Thus, the consequence is that a woman can abort a child at her will citing any reason as it is convenient for her to pass it off as due to a failure of contraceptive as she is not even required to provide anything by way of proof.[27] This provision of law blatantly turns a blind eye towards the right of the unborn child. This clause is thus problematic owing to three reasons: First, ‘failure of contraceptive’ is a very convenient excuse to legally justify an abortion. It is an unchecked choice being made legally available to the women who want to seek an abortion. Another important consideration is that it can be used as an excuse in cases where teenagers indulge in unsafe sex, thereby creating a scenario wherein such activities are regularised due to the loophole in the provision dealing with abortion. This can turn out to have devastating effects for families and lives of a lot of young individuals who are unaware of the medical risks of STDs and other responsibilities presented by the act they seek to indulge in and escape from.
Furthermore, the amendment supposes that a doctor may allow a woman to abort her child on the ground of failure of contraceptives by presuming that she suffers grave mental injury. It may be argued that the word ‘may’ gives the doctor the discretion to go for abortion,[28] thereby transferring the power to choose to the doctor. However, it is only the woman only who can determine whether she suffers from any grave mental injury. Mere annoyance cannot be said to cause grave injury so as to deny a potential life, the right to live.[29] Also, the discretion given to the doctor can be used arbitrarily thereby facilitating abortion in frivolous cases.
Secondly, in a country like ours, a woman’s decision on termination of pregnancy is influenced by various social, economic, ethnic factors. The decision is swayed by the consent of her family and partner. In such a scenario, a woman can never be said to exercise a ‘free choice’.[30] This choice is, in reality, a choice shaped by the moral code of conduct of the community she resides in and the family she belongs to, which can force her to abort the child and such an abortion will be legally justified on the ground of ‘failure of contraceptives’. Thirdly, this can also lead to sex-selective abortions, whereby the killing of a female foetus could be brought under the veil of abortion due to contraceptive failure, which is devastating for gender equality, especially for a society like India seeking to wiggle out of the age old patriarchy.
The author, however, does not argue for a pro-life approach in its entirety. A country like India can never really have any legislation being completely a ‘pro-life’ or a ‘pro-choice’[31] one, because it’s not a feasible or attainable reality. Equal access to resources like healthcare, money, knowledge of law etc is not available to every woman. The choice is not effectively of the woman, but instead depends on the norms of the society she comes from – the affordability of an abortion procedure, the social stigma attached to abortion, etc. In the presence of all these factors, which can never allow her to make a free choice, how can a pro-choice approach be possibly be adopted, especially when the consequences of this are so grave? Similarly, a pro-life approach cannot exist in isolation or without any interface with the ‘pro-choice’ approach. The two will always co-exist and hence an amalgamation of the same must be the law of the land.
Moreover, the women’s right to make reproductive choice was perceived to fall within personal liberty under Article 21 in the case of K.S. Puttaswamy v. Union of India[32] (hereinafter “Puttaswamy case”). It reiterated the position of Suchita Srivastava v. State (UT of Chandigarh)[33] where it was held that this choice of a woman comes along with her “privacy, dignity and bodily integrity” and hence should be respected.[34] Reproductive choices include the choice to use contraceptives, to refuse participation in sexual activity, to choose among various birth control measures and the entitlement to bring a child into this world and raise it.[35]
It is argued that Section 3 of the Act which is not amended by the Bill violates a woman’s right to make reproductive choice.[36] This is because it follows a ‘doctor-centric approach’ wherein the medical practitioner has a greater role than the woman in deciding the question of abortion.[37] It is further argued that the grounds of abortions are highly restrictive i.e. abortion can only be availed if there are any medical risks associated with continuation of pregnancy.[38]
However, this line of reasoning fails to take into consideration that the right of a woman to make reproductive choices has to be balanced with that of the unborn child’s right to life. So even when the Act might seem to limit this choice of the women, these restrictions fall within the ambit of reasonable restriction to the exercise of choice.[39] There is a “compelling state interest” to protect the life of the unborn child and this is ensured by allowing abortion only if certain conditions as given in the Act are satisfied.[40] That is to say, provisions of the Act can be seen as reasonable restrictions on the exercise of reproductive choices.[41] Further, the restriction placed on the choice of the women satisfies the three prong test laid by Justice DY Chandrachud in the Puttaswamy case.[42] These are – firstly, it is a valid law in the form of the Act.[43] Secondly, there is a legitimate state interest in protecting the life of the unborn child.[44] And lastly, this restriction is also proportional to its aim which is to restrict abortions and protection of life of the unborn child.[45] Moreover, as previously mentioned, much leeway cannot be given to a woman to exercise her choice because it is in essence not her absolute choice and is dependent on various social, cultural factors.
Further, the State should ensure that these conditions or restrictions are actually enforced. By providing a ground like failure of contraceptives, what it has essentially ended up doing is to provide for an alternative route which could be used to bypass the whole Act. That is to say a woman could easily take a detour from the statute by a mere declaration that there was a contraceptive failure without having to satisfy any condition. A grave injury to mental health would be then presumed and she would be allowed to terminate the child.[46] The state thus has failed to protect the life of the child by providing for a loophole in the Act itself. The ‘failure of contraceptive devices’ deprives reasonable restriction of its meaning and in effect places absolutely no barrier on the woman to exercise her right. This could be easily misused to take away the right to life of an unborn child. Thus the State has failed what it seeks to achieve.
Hence, the amalgamation of both the models seems to be the only justifiable solution and this can be achieved by amending Explanation 1[47] to make any such decision under it subject to judicial review. The courts would scrutinize as to whether a termination on the ground of ‘failure of contraceptive’ should in fact be allowed on a case to case basis taking into account the right to life of an unborn child. Such a right of the unborn child cannot be violated by the mother without a reasonable excuse. The courts should check if the abortion is really necessary or whether abortion is solely being used as a contraception in disguise. Even though this alternative is far-reaching and could increase the burden of courts, it is required because the stakes are too high. Another alternative arrangement can be worked out by setting up a Board to determine the question of abortion in such cases as is done in cases of foetal abnormalities. The right to life of someone which is a fundamental right guaranteed by the Constitution of this country cannot be taken away merely on the ground of contraceptive failure, which itself could act as a disguise for other reasons. Thus, a balance must be made to exist between the right of choice of the woman over her body and the right to life of an unborn child.
The author, Toshita Jha, is currently a second year law student at the National University of Juridical Sciences (NUJS), Kolkata.
[1] Section 2(e), The Medical Termination of Pregnancy (Amendment) Bill, 2020, 55 of 2020.
[2] BBC, Ethics Guide: Introduction to the abortion debate, available at http://www.bbc.co.uk/ethics/abortion/legal/introduction_1.shtml. (Last visited on April 24, 2020).
[3] The Medical Termination of Pregnancy Act, 1971.
[4] The Medical Termination of Pregnancy (Amendment) Bill, 2020, 55 of 2020.
[5] KD Gaur, Abortion and the Law in India, Journal of the Indian Law Institute, Vol 28, No.3 (July-September 1986), pp. 348-363, available at https://www.jstor.org/stable/pdf/43951024.pdf?refreqid=excelsior%3A6ed13216456d0620e150931a143ed9f5.
[6] Section 3(2)(i), The Medical Termination of Pregnancy Act, 1971.
[7] Section 3(2)(ii), The Medical Termination of Pregnancy Act, 1971.
[8] Explanation 1, Section 3(2), The Medical Termination of Pregnancy Act, 1971.
[9] Explanation 2, Section 3(2), The Medical Termination of Pregnancy Act, 1971.
[10] Section 3(2)(a), 3(2)(b), The Medical Termination of Pregnancy Act, 1971.
[11] Section 5(1), The Medical Termination of Pregnancy Act, 1971.
[12] Madhav G. Deo, “Doctor population ratio for India – The reality’, Indian Journal of Medical Research, 137 (4) (April, 2013), pp. 632-635, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3724242/.; The Economic Times, India facing shortage of 600,000 doctors, 2 million nurses, April 14, 2019, available at https://economictimes.indiatimes.com/industry/healthcare/biotech/healthcare/india-facing-shortage-of-600000-doctors-2-million-nurses-study/articleshow/68875822.cms?from=mdr. (Last visited on April 24, 2020).
[13] The Hindu, Twenty-week abortion deadlines adds more pain to rape victims, February 25, 2017, available at https://www.thehindu.com/news/national/twentyweek-abortion-deadline-add-more-pain-to-rape-victims/article17361244.ece (Last visited on April 24, 2020).
[14] The Times of India, Giving Women the choice: Why the 20-week abortion limit must be relaxed in case of foetal abnormalities, March 31, 2017, available at https://timesofindia.indiatimes.com/blogs/toi-edit-page/give-women-the-choice-why-the-20-week-abortion-limit-must-be-relaxed-in-case-of-foetal-abnormalities/(Last visited on April 22, 2020).
[15] The Wire, India’s Abortion Laws Need to Change and in the Pro-Choice Direction, May, 11, 2017, available at https://thewire.in/gender/abortion-pregnancy-law-india (Last visited on April 22, 2020).
[16] S. Khushboo v. Kanniammal, (2010) 5 SCC 600.
[17] Section 3(2)(b), The Medical Termination of Pregnancy (Amendment) Bill, 2020, 55 of 2020.
[18] Id.
[19] The Hindu, LS passes Bill to raise limit for abortions till 24 weeks for special categories, March 17 2020, available at https://www.thehindu.com/news/national/ls-passes-bill-to-raise-limit-for-abortions-till-24-weeks-for-special-categories/article31093261.ece (Last visited on April 22, 2020).
[20] Section 3(2)(b), The Medical Termination of Pregnancy (Amendment) Bill, 2020, 55 of 2020.
[21] Explanation 1, Section 3(2), The Medical Termination of Pregnancy (Amendment) Bill, 2020, 55 of 2020.
[22] Section 3(2B), The Medical Termination of Pregnancy (Amendment) Bill, 2020, 55 of 2020.
[23] Section 3 (2B), 3(2C), 3(2D), The Medical Termination of Pregnancy (Amendment) Bill, 2020, 55 of 2020.
[24] Chitra Subramaniam, India’s new abortion law is progressive and has a human face, March 7, 2020, available at https://www.orfonline.org/expert-speak/india-new-abortion-law-progressive-human-face-62023/ (Last visited on April 22, 2020.
[25] Section 5(A), The Medical Termination of Pregnancy (Amendment) Bill, 2020, 55 of 2020.
[26] Explanation 1, Section 3(2), The Medical Termination of Pregnancy (Amendment) Bill, 2020, 55 of 2020.
[27] R.V. Kelkar, Impact of the Medical Termination of Pregnancy Act,1971: A CASE STUDY, Journal of the Indian Law Institute, Vol 16, No.4 (October-December 1974), pp. 593-625, available at https://www.jstor.org/stable/pdf/43950394.pdf?refreqid=excelsior%3A4b9a269cfad45b3a6183602591ef1439.
[28] Id.
[29] Joseph Minattur, Medical Termination of Pregnancy and Conscientious Objection, Journal of the Indian Law Institute, Vol 16, No.4 (October-December 1974), pp. 704-709, available at https://www.jstor.org/stable/pdf/43950401.pdf?ab_segments=0%252Fbasic_SYC-5152%252Ftest&refreqid=excelsior%3A1d7d85f162597f5ae6753718c253a19f.
[30] Srishti Agnihotri, Abortion Rights In India And The Absence of the Pro-Life/Pro-Choice Debate, April 11, 2016, available at https://feminisminindia.com/2016/04/11/abortion-rights-india/?fbclid=IwAR3WMyF-KicrD04L5DrFvCEr0mlWFF7xb-LA65hGPgSMbts4Jf6gDPdC5ds (Last visited on April 22, 2020).
[31] Id.
[32] K.S Puttaswamy v. Union of India, (2019) 1 SCC 1.
[33] Suchita Srivastava v. State (UT of Chandigarh), (2009) 9 SCC 1.
[34] Id.
[35] Id.
[36] Section 3, The Medical Termination of Pregnancy Act, 1971.
[37] Arijeet Ghosh & Nitika Khaitan, A Womb of One’s Own: Privacy and Reproductive Rights, Vol. 52, Issue No. 42-43, (October 2017), available at https://www.epw.in/engage/article/womb-ones-own-privacy-and-reproductive-rights (Last visited on May 17, 2020).
[38] Hindustan Times, Soli Sorabjee, Abortion: It’s every woman’s right to choose, January 8, 2018, available at https://www.hindustantimes.com/opinion/abortion-it-s-every-woman-s-right-to-choose/story-52qv723N3yXESybsvyHR0J.html (Last visited on 18th May, 2020).
[39] Suchita Srivastava v. State (UT of Chandigarh), (2009) 9 SCC 1.
[40] Id.
[41] Id.
[42] K.S Puttaswamy v. Union of India, (2019) 1 SCC 1.
[43] Id.
[44] Id.
[45] Id.
[46] Explanation 2, Section 3, The Medical Termination of Pregnancy Act, 1971.
[47] Explanation 1, Section 3(2), The Medical Termination of Pregnancy (Amendment) Bill, 2020, 55 of 2020.
The Journal of Indian Law and Society 