REPRODUCTIVE RIGHTS IN INDIA: LEGAL DEVELOPMENT POST THE 2023 MTP AMENDMENT

ABSTRACT

Reproductive rights are fundamental human rights. The development of reproductive autonomy and freedom for women has to choose whether a women abort or gives birth to a child, or terminates an unwanted pregnancy, or timing of the family planning and contraception. In this article, we provide an overview of the concept of the Medical Termination of Pregnancy (MTP) Act, 1971, and the changes proposed under the Medical Termination of Pregnancy Amendment Bill, 2021, as well as some post-2023 legal developments on MTP due to various judgments and policies. A woman’s right to reproductive choice is an inseparable part of her liberty under Article 21 of the Indian Constitution. In this article, we see abortion laws in different countries.

INTRODUCTION

In India, women’s right to reproduction is recognised under the Indian Constitution. Reproductive rights are an umbrella term that ensures the ability to make decisions freely, without coercion. In India, to legalize and make abortion safe, the Medical Termination Act, 1971, was enacted to regulate the conditions and challenges faced by abortion, to change the MTP (1971), and the bill was amended in 2021, which included several new changes that were adopted and redefined reproductive autonomy.

Many legal developments have been evolving in India since 2021, which allow abortion to be done on the advice of one doctor up to 20 weeks, and two doctors in the case of certain categories of women between 20 and 24 weeks. There are two different opinions regarding abortion. One opinion is that a terminated pregnancy is her own choice, and it is part of her reproductive rights; the second opinion is that the state must protect the life of the foetus for safe delivery, and abortion and allowed after 24 weeks also abort but only in cases where a medical board diagnoses substantial foetal abnormalities.

LEGAL FRAMEWORK FOR ABORTION IN INDIA: MTP ACT 1971 AND AMENDMENT BILL, 2021

The Rajya Sabha has approved the Medical Termination of Pregnancy (Amendment) Bill, 2021, to amend the Medical Termination of Pregnancy Act, 1971, on 16^th March 2021. The Bill was approved in the Lok Sabha on 17^th March 2020. The Act regulated the conditions under which a pregnancy may be aborted. The Bill increases the time within which abortion may be carried out.

In the Medical Termination of Pregnancy Act (1971), if an abortion is required the opinion of one doctor is required if it is done between 12 and 20 weeks. ^[1]In the present situation, the bill allows abortion to be done on the advice of one doctor up to 20 weeks, and two doctors in the case of certain categories of women between 20 and 24 weeks, for certain categories e.g., survivors of rape, minors, differently-abled women. ^[2]

ELIGIBILITY CRITERIA FOR ABORTION UNDER THE MTP AMENDMENT BILL ACT, 2021

1. Unmarried Women can avail themselves. (In case the women under 18 years of age and the cases are registered under the POCSO Act.
2. If the pregnancy is the result of incest or sexual harassment.
3. Major deformations in the foetus.
4. If it is a result of failed contraception.
5. If the continuation of the pregnancy can cause grave injury to the physical or mental health of the mother.
6. In case of a miscarriage.

In case of fetal disability, there is no limit to the timeline for abortion. However, this is allowed by a medical board of specialist doctors up by the governments of states and union territories . While terminating the pregnancy, women are not required to a consent from their spouse to undergo an abortion, even husband are not forced their wife also regarding to pregnancy. In case the husband is forcing the wife, then the husband is penalized.

Under BNS Section 88/89 for miscarriage.

WHAT ARE THE REPRODUCTIVE RIGHTS OF WOMEN?

• Access education and information about contraception and sexual health.
• Decided whether or what type of contraceptives to use.
• Choose whether or when to have children, the number of children,
• The right to choose a safe and legal abortion.

LEGAL DEVELOPMENT IN POST-2023 MTP AMENDMENT

In 2021, the amendment of the Medical Termination of Pregnancy (MTP)Act had several changes related to abortion, termination of pregnancy, etc. Following 2023, several judicial interpretations and policy changes occurred.

In the case of X. VS. UNION OF INDIA (2023)^[3]The Supreme Court limited the woman’s right to reproductive autonomy by strictly measuring her rights against the eligibility criteria in sections 3(2B) and 5 of the MTP Act. The legislation and the court’s interpretation ultimately created a framework where a woman’s autonomy came to a hard stop at 24 weeks and was replaced instead by a subjective determination of the circumstances by doctors and judges.^[4] The Act highlighted that the privacy and confidentiality of the woman are to be protected, and the records are to be kept private.

ABORTION LAW IN VARIOUS COUNTRIES

1. CUBA-

A first country that reforms the revocation law in favour of women. In 1965, the revocation period was over to 10 weeks of gestation through the public health system. But in 1979, revocation was illegal if it was done without the concurrence of the pregnant woman.^[5].

2. FRANCE-

In the period of 2014,2015, and 2016, the Veil Law was reformed to increase access to revocation and reduce barriers. Women no longer have to be in a “state of torture” in France either, but need only request a revocation.  The seven-day “reflection period” between the request for a revocation and the revocation itself was also dropped.  Most recently, midwives are now permitted to give medical revocation, and the costs for all revocations are now refunded.

3. AUSTRALIA–

Each state and the capital Territory have different laws, ranging from very liberal to very restrictive; several are in the process of change.

4. UNITED STATES-

In 1973, the Supreme Court held that criminalizing revocation violated a woman’s right to privacy and said that revocation should be a decision between a woman and her doctor. However, the court also held that US states have an interest in ensuring the safety and well-being of pregnant women, as well as the eventuality mortal life. This opens the door to restrictions that are tying up state and federal courts to this day:

1. First trimester: a state cannot regulate revocation beyond requiring that a licensed doctor perform the procedure in medically safe conditions;
2. Second trimester: a state may regulate revocation if the regulations are reasonably related to the health of the pregnant woman; and
3. Third trimester: the state’s interest in protecting human life outweighs the woman’s right to privacy, and the state may prohibit revocation unless revocation is necessary to save her life or health.^[6]

5. SWEDEN-

Among the most liberal, though revocation isn’t entirely interdicted. The Swedish law was amended in 1938, 1946, 1963, 1975, 1995, 2007, and 2008. Revocation is available on request up to 18 weeks. After that, authorization from the National Board of Health and Welfare is needed and may not be granted if the fetus is feasible. Appeal is not permitted. Regulations govern who provides revocations and where. Any person not authorized to practice medicine who performs a revocation on another person can be fined or imprisoned for up to a year. The government subsidizes abortion; 95% of revocations take place before 12 weeks, and almost none after 18 weeks. Most are medical revocations.^[7]                                                                        

CASE LAW EVOLUTION OF REPRODUCTIVE RIGHTS IN INDIA

1. SUCHITA SRIVASTAVA & ANR VS. CHANDIGARH ADMINISTRATION (2009)^[8]

Where a mentally disabled woman was saturated following a sexual assault. The Chandigarh Administration sought authorization from the court to terminate the gestation. The Supreme Court held that a woman’s right to make reproductive choices is a dimension of personal liberty under Article 21. It emphasised that reproductive choices include the right to continue or terminate a pregnancy and that a woman’s right to privacy and bodily autonomy should be respected.^[9]

2. MEERA SANTOSH PAL VS. UNION OF INDIA (2017)^[10]

In this case, a woman sought to terminate her 24-week pregnancy due to severe fetal abnormalities. The Supreme Court granted authorization for revocation, stating that the woman’s right to life included the right to make reproductive choices. The ruling underlines the significance of bodily autonomy and the health pitfalls associated with continuing a gestation under such circumstances.^[11].

3. DEEPIKA SINGH VS. CENTRAL ADMINISTRATIVE TRIBUNAL (2022)^[12]

In this case, the Supreme Court expanded the description of a family to honor a relationship outside the traditional marriage institution. The judgment paved the way for the interpretation of reproductive rights for unmarried women, affirming that the law should reflect the realities of ultramodern connections and not be limited by outdated societal morals.^[13]

CONCLUSION

In India, the Medical Termination of Pregnancy Act 1971 was legislated for the revocation and termination of pregnancy. In this act, the gestational limit of the pregnancy is 12-20 weeks; beyond this period, a revocation is not permitted by law in its given jurisdiction. But in 2021, the Amendment Bill was passed in both houses, and in this amendment bill, the gestational limit is 20-24 weeks. If the women abort or terminate her pregnancy, there are several permissible reasons only in cases of sexual assault, unwanted pregnancy, etc. In the Indian Constitution, Article 21 gives a woman the Right to personal liberty. It is her choice whether she carries a baby or terminates the pregnancy. There are many countries, like in this article we see as Cuba, Australia, Sweden, the US, and France, where abortion laws are different and the abortion period varies.

In 2023, the Supreme Court gave a verdict on the case of X. VS. UNION OF INDIA that the eligibility criterion in sections 3(2B) and 5 for women who abort or terminate their pregnancy is given. And in this article, there are many landmark cases mentioned, which are given there after many changes have been made in the act.

 

 REFERENCES                                                                                                                                      

^[1] Medical Termination of Pregnancy Act 1971, s 3 (2)(a)(b)

^[2] The Medical Termination of Pregnancy (Amendment) Act 2021, s 3 (2)(a)(b)

^[3] X. vs. Union of India 16 October (2023)

^[4]https://indiankanoon.org

^[5] Marge Berer, ‘Abortion Law and Policy Around the World (2017) 19(1) pmc.ncbi.nim.nih.gov accessed June 2017

^[6] Marge Berer, ‘Abortion Law and Policy Around the World (2017) 19(1) pmc.ncbi.nim.nih.gov accessed June 2017

^[7] Marge Berer, ‘Abortion Law and Policy Around the World (2017) 19(1) pmc.ncbi.nim.nih.gov accessed June 2017

^[8] Suchita Srivastava & Anr vs. Chandigarh Administration AIR (2009) SCW 5909

^[9] Aishwarya Agrawal ‘Law on Abortion in India: An overview’ (Law Bhoomi November 5, 2024) <htttps://lawbhoomi.com>

^[10] Meera Santosh Pal vs. Union of Indian AIR 2017 SC 461

^[11] Aishwarya Agrawal ‘Law on Abortion in India: An overview’ (Law Bhoomi November 5, 2024) <htttps://lawbhoomi.com>

^[12] Deepika Singh vs. Central Administrative Tribunal AIR (2022) (10) SCC 588.

^[13] Aishwarya Agrawal ‘Law on Abortion in India: An overview’ (Law Bhoomi November 5, 2024) <htttps://lawbhoomi.com>