Abortion is a procedure through which a pregnant woman
intentionally, within a few weeks of her pregnancy terminates the unborn child.
The act of abortion is legal in many countries whereas there are countries where
abortion is illegal and is a punishable offense, for example, Egypt, prohibits
abortion altogether through Articles 260 to 264 of the Penal Code 1937.[1] Countries
like the US, UK, Russia, Canada, China, and some others do not have restrictive
laws regarding abortion. In the United Kingdom, a woman can move further with
the procedure of abortion if there is a risk to the pregnant woman, it is to
remember that abortion should be carried within twenty-four weeks of pregnancy.[2]
The period of termination of unborn differ from country to country, in the United
States, it varies from State by State.
In India laws related to abortion are regulated by
legislation called ‘The Medical Termination of Pregnancy Act,
1971 ’, the Act
legalizes abortion in the country. The main objective of this legislation is
safe abortion, the safety of the
pregnant woman and to promote reproductive freedom. Section 3 of the Act laid
down the criteria to terminate the unborn, a pregnancy may be
terminated by a registered medical practitioner.[3] The Act allows
operating abortion only by registered
medical practitioners otherwise it is under the ambit of illegality, it also
focuses on the intention of the act, if the abortion is carried without the good
faith is a punishable offense under section 312 to 316 of IPC.[4] Section 3(a) of the
Medical Termination Of Pregnancy Act prohibits abortion where the length of the
pregnancy exceeds twelve weeks or twenty weeks. Section 3(b)(i) explains the
circumstance where the pregnancy can be terminated after twelve weeks and in a
period where the length of the pregnancy does not exceed twenty weeks, it says
that pregnancy can be terminated if
continuance of the pregnancy would involve a risk to the life of the
pregnant woman or of grave injury physical or mental health.[5] The Act also involves the
termination of pregnancy in the rape or pregnancy caused due to the failure of
the measure taken to stop pregnancy. The
Act also allows abortion in the cases where there is a substantial risk that if
the child were born, it would suffer from such physical or mental abnormalities
as to be seriously handicapped.
Medical termination of pregnancy bill 2020
proposes a statement of non-applicability of the provisions relating to the
length of pregnancy in cases where the termination of pregnancy is necessitated
by the diagnosis of any of the substantial foetal abnormalities diagnosed by a
Medical Board.[6]
Chorionic villus sampling or CVS is an optional procedure which is performed
between 10 or 14 weeks of pregnancy, the cells which are collected through the
CVS give genetic information that is identical to the child in the womb of the
pregnant woman, the result of the CVS diagnose the child with any physical or
mental disorder for example down syndrome. Thus, a non-applicability in
substantial foetal abnormalities will risk the life of the woman and may result
in unsafe abortion.
Section
3(4) of MPT Act elucidate that a pregnant woman who is below 18 years or is 18
years old or mentally incompetent to give consent in such matter need the
consent of the guardian for the termination of pregnancy. Whereas in the case
of the woman of above age, she is the solely induvial to give the consent, Act
states that no pregnancy can be terminated without her consent. Spousal consent
in the matter of abortion is contrary to the political, economic and social
equality of a woman. Noting that the States Parties to the International
Covenants on Human Rights have the obligation to ensure the equal rights of men
and women to enjoy all economic, social, cultural, civil and political rights.[7] The 2011 courts in India
have confirmed that procedure only requires consent from an adult woman for an
abortion. Husbands, boyfriends, brothers, parents, and in-laws, have no right
to consent to termination or to refuse to consent to an abortion.[8] Decision of abortion is a
fundamental right of a woman ensured under Article 21, right to medical care
& Health. Health is a state of complete physical, mental and social
well-being and not merely the absence of disease or infirmity.[9] Unwanted pregnancy affects
women’s mental health.
Accordingly, under POCSO, any pregnant woman under the
age of 18 has been raped, and the provider has an obligation to report the
abuse. But in a country like India where marriage under age of 18 is very
common though there is law against it. In 2015 high court of madras rules that
Under POCSO, doctor must inform the
police about the pregnancy of a minor even if the minor is involved in a
consensual relationship, doctors have an immediate obligation to inform the
police when a pregnant minor request a medical termination of pregnancy.[10] Termination of pregnancy
should be early in the case of minor because abortion in later weeks results in
risk and unsafe abortion and physiological trauma. In certain cases, the court
has permitted registered medical practitioners to perform abortion on minor in
twenty weeks of pregnancy. High Court of
Punjab and Haryana, Bashir Khan v. State of Punjab, High court ruled “The State
need not have applied to the magistrate...the State could have assisted the
victim to secure the necessary certification and admitted her in a government
hospital...for carrying out the procedure necessary for such termination.”[11]
If a woman who terminates pregnancy after the process
of sonography, the main reason of such termination is knowledge of sex of the
unborn child, under such circumstances a woman cannot proceed with the act of
abortion, MPT Act Aims at reproductive freedom not the promotion female
foeticide.
[11] High
Court of Punjab and Haryana, Bashir Khan v. State of Punjab & Another, 2
August 2014 WP (C) 14058/2014
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