Abortion in India

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Published On: 27th May, 2024

Authored By: Varisha Rehman
Asian Law College

ABSTRACT

In India, abortion is a complex topic that has implications for the legal, social, cultural, and medical spheres. The legal framework in India pertaining to abortion includes guidelines for admissible conditions, gestational restrictions, and procedural procedures for terminating pregnancies. It is governed by the Medical Termination of Pregnancy (MTP) Act of 1971, which was updated in 2021. The study goes with notwithstanding legal laws, socioeconomic differences, lack of information, societal stigma, and poor healthcare infrastructure all contribute to the unequal availability of safe and legal abortion services across the nation’s regions. The research talks about how different cultural, religious, and ethical viewpoints influence social views towards abortion in India, which reflects the nation’s complex web of values and beliefs. The study further helps in understanding the intricacies associated with abortion in India necessitating a detailed analysis of legal, social, and healthcare factors, with an emphasis on guaranteeing everyone’s access to respectful and safe reproductive healthcare services.

INTRODUCTION

The intentional ending of a pregnancy, or abortion, is a delicate and complicated topic that touches on a number of legal, moral, and societal issues. Communities all across the world struggle with issues related to the morality, accessibility, and legality of abortion. We will examine the complex nature of abortion, its historical background, and the range of viewpoints that influence the conversation around it in this introduction.

The legislative framework governing abortion in India has changed throughout time to strike a balance between the rights of pregnant people and worries for the health and welfare of the foetus. This is because the country’s cultural, religious, and socioeconomic diversity impacts attitudes towards reproductive rights. The legal basis for abortion in India is provided by the Medical Termination of Pregnancy (MTP) Act of 1971, which was updated in 2021. This act outlines the allowed conditions, gestational limitations, and techniques for terminating pregnancies.

Even while ancient Indian writings provide some insights into attitudes and behaviors around abortion, it’s crucial to evaluate them within their historical and cultural contexts. The materials available to us limit our understanding of ancient Indian perspectives on abortion, and the information is often interpretative and lacking in detail. Moreover, sentiments regarding abortion in ancient India might not have been in line with contemporary legal doctrines or perspectives.

 

ABORTION IN INDIA

The intentional ending of a pregnancy, usually done within the first 28 weeks of gestation, is known as an abortion. Depending on the stage of pregnancy and the wishes of the person seeking an abortion, it can be accomplished using a variety of medical procedures or drugs.
Abortion is a hotly contested and divisive issue that frequently involves moral, ethical, legal, and religious issues.

India is not an exception to the fact that abortion is a delicate and hotly contested subject internationally. India, a country with a population of more than 1.3 billion, has difficult problems in controlling reproductive health, particularly problems with abortion. This essay explores the legal, social, and ethical aspects of abortion in India in order to give a general summary of the situation.

There are two kinds of abortions: Unplanned pregnancy termination, is known as a spontaneous abortion. It’s another word for pregnancy loss.  When someone refers to an abortion, they often imply an induced abortion. It’s the deliberate termination of a pregnancy using a medical surgery or drug. Other phrases include “termination of pregnancy,” “elective abortion,” and “therapeutic abortion” (if carried out to protect the mother’s health).

In India, abortion is permitted in certain conditions as of 1971.
These conditions include those that put the pregnant woman’s life in danger, endanger her bodily or mental well-being, increase the chance that the unborn child may have physical or mental defects, and result in pregnancies due to rape or failed contraceptives.

ABORTION IN ANCIENT INDIA

Several historical and religious writings from ancient India discuss abortion practices, offering us a glimpse into the beliefs and customs surrounding reproductive health at that time. It’s significant to remember that opinions on abortion differed throughout ancient India’s many areas, civilizations, and eras.

The traditional Indian medical system known as Ayurveda makes mention of abortion techniques and procedures. Ayurvedic scriptures discuss the use of herbal treatments, massage, and other conventional ways to induce abortion. These writings also address the possible advantages and disadvantages of abortion and offer suggestions for situations in which it could be justified medically.

Abortion is discussed in the Dharmashastras, ancient Indian legal and religious books that provide moral standards and norms of conduct. These scriptures offer rules about whether abortion is acceptable or unacceptable in accordance with Hindu religious law. For instance, abortion could be permitted if the woman’s life or health is in danger or if the pregnancy was the consequence of adultery.

Stories and moral lessons about abortion may be found in Puranic scriptures and Hindu epics like the Mahabharata and the Ramayana. Abortion is frequently discussed in these writings in relation to particular characters and their moral quandaries. These stories’ varied takes on abortion illustrate the range of ethical viewpoints that existed in ancient Indian culture.

The cultural and theological beliefs of ancient Indian civilization were diverse, and opinions regarding abortion probably differed among various communities and social classes. Factors including caste, class, and local norms may have had an impact on abortion practices.

It’s important to assess ancient Indian writings within their historical and cultural settings, even though they offer some insights into attitudes towards and behaviors around abortion. Our knowledge of ancient Indian views regarding abortion is constrained by the sources at our disposal, and the material is frequently incomplete and interpretive. Furthermore, attitudes towards abortion in ancient India could not have been consistent with modern viewpoints or legal systems.

HISTORY OF ABORTION LAWS IN INDIA

Over time, India’s abortion laws have experienced substantial changes that are indicative of the intricate relationship between changing views on reproductive rights, medical progress, and societal norms.

Before 1947, when India gained its freedom, British colonial rules mostly controlled abortion. Abortion was prohibited under the Indian Penal Code (IPC) of 1860, which was carried over from British colonial control unless it was done to save the life of the woman. This stringent legal system, which allowed for few exceptions for abortion, mirrored the moral principles of the Victorian age.

India started a path of legal changes after achieving independence to address a variety of social and public health challenges, including reproductive rights. Nonetheless, the IPC continued to control abortion over the majority of the period that followed independence. However, when equality and liberty came under intense pressure, the knowledge of rights in Indian society grew over time. The government established the Shantilal Shah committee in the 1960s to begin discussing legislation about abortions as the concept of rights began to acquire traction and relevance in Indian culture.

The Shantilal Shah committee’s task was to examine the nation’s abortion situation and determine if new legislation was necessary to control abortion. The committee emphasized the “liberalization of abortion laws in India” in a report delivered to the Lok Sabha in 1964. This led to the enactment of the “Medical Termination of Pregnancy Act 1971”.

The Medical Termination of Pregnancy (MTP) Act

The Medical Termination of Pregnancy (MTP) Act, which was passed in 1971, is a crucial piece of legislation in India’s history regarding abortion regulations. An important turning point was the MTP Act, which established a framework for regulating abortion providers and legalized abortion under specific restrictions. Important clauses of the MTP Act included:
Limits on Gestation: Under some circumstances, the MTP Act allows abortions up to 20 weeks into a pregnancy. However, if the woman’s life is in danger or there are significant foetal abnormalities, the abortion may be performed past 20 weeks.

Authorized Providers: In order to guarantee patient safety and high standards of care, the MTP Act permits licensed physicians to conduct abortions in accredited medical facilities.
Reasons for Lawful Abortion: The MTP Act lists a number of reasons that an abortion may be carried out lawfully, such as dangers to the woman’s life or health, defects in the foetus, ineffective contraception, or pregnancy brought on by sexual assault.

 

This law was passed in order to control pregnancy terminations throughout the nation. As time went on and Indian society evolved, the Medical Termination of Pregnancy Act 1971 was unable to keep up with the times due to certain provisions that did not reflect the prevailing mindset in the society. For instance, Section 3(2)(b) of the 1971 act prohibited the termination of pregnancies longer than 20 weeks. After the 20th week of pregnancy, a variety of tests are performed expressly to look for any abnormalities in the developing foetus.

It should be noted that the MTP Act of 1971 required married women to provide proof that their failure to use contraception caused their pregnancy in order to be eligible for pregnancy termination. Considering the way that society thinks these days, it might be said that this resulted in a breach of their right to privacy.

Divergent views on termination, Some people believe that a pregnant woman should have the freedom to choose whether or not to end her pregnancy as part of her reproductive rights, while others believe that the state has a duty to preserve life and should thus take steps to safeguard the unborn.
Depending on the risk to the unborn child’s health and the health of the foetus, many nations throughout the world have different restrictions and deadlines for granting abortions. The Act only permits abortions after 24 weeks if a Medical Board determines that there are significant foetal abnormalities. This suggests that a Writ Petition is the sole option available in cases when rape necessitates an abortion and the pregnancy is longer than 24 weeks.

The Act mandates that only physicians board-certified in obstetrics or gynaecology may conduct abortions. Due to a 75% shortfall of these physicians in remote community health centres, pregnant women may still have trouble accessing safe abortion services. In a positive step for women’s reproductive rights, the Supreme Court recognised marital rape as a basis for abortion, even if marital rape is not recognised as a crime.

Since there had not been many significant technological advancements in 1971 compared to the present day, additional regulations were required to keep up with the rapidly evolving Indian society. As a result, the legislation was changed. The Medical Termination of Pregnancy (Amendment) Act 2021, as it was officially named, freed Indian society from the antiquated restrictions of the prior law. There were two minor amendments made to the MTP Act of 1975 in 1975 and 2002. But in 2021, a new amendment was introduced in an attempt to address the inadequacies of both the original statute and the earlier revisions.

ABORTION AND RELIGION

The topic of abortion is complicated and impacted by a number of variables, such as legal frameworks, cultural standards, and religious views. Cultural customs and religious teachings can have an impact on attitudes toward abortion in India, a country with a large Hindu, Muslim, and Christian population.

Hindus believe that life is an expression of the Supreme Being, known as Brahma. Therefore, it is morally immoral to destroy both living things and the embryos that contain live souls. The cornerstone of Hindu philosophy is the idea of ahimsa or non-violence. While some Hindu texts uphold the sanctity of life and urge the preservation of the unborn child, others acknowledge situations in which abortion may be justified, such as when the mother’s life or health is in danger. In general, Hinduism encourages the idea of karma and the conviction that one will reincarnate, which may have an impact on opinions on the morality of abortion.

Abortion is usually forbidden in Islamic beliefs, with few exceptions. Islamic scholars generally agree that a mother may only have an abortion if it is necessary to preserve her life or if there is a significant risk to her health. Scholars differ in their views when it comes to developmental abnormalities or rape, however, some may permit abortion under certain situations and within particular time frames. The views of Islamic scholars and the customs of Muslim communities can also influence how people feel about abortion.

Similar to Hinduism, there are many different Christian denominations, and each one has its interpretation of the religious teachings about abortion. For instance, abortion is taught by Roman Catholicism to be ethically unacceptable and to be the killing of an innocent human life under any conditions. The concept of twofold impact does, however, have some exceptions. For example, it may apply when a pregnancy is inadvertently ended as a result of medical intervention intended to save the mother’s life.

It’s critical to understand that there can be a range of opinions and interpretations on abortion within any given faith. Individual opinions about abortion within Indian religious communities are also greatly influenced by cultural variables, individual experiences, and socioeconomic issues.

CASE LAWS

Niketa Mehta vs. Union of India (2008):

The question of the moral and legal ramifications of abortion in India brought attention to this case. Mumbai resident Niketa Mehta filed a plea to terminate her 25-week-old foetus, which had been found to have a congenital cardiac abnormality. Despite going above the 20-week legal limit, Mehta was granted permission to end the pregnancy by the Supreme Court of India. The case brought up significant issues regarding the restrictions on abortion rights and the requirement for humanitarian measures to be taken into account when a fetal abnormality is severe.

Amita Dhanda vs. Union of India (2016):

In this case, the Medical Termination of Pregnancy (MTP) Act’s constitutionality was contested on the grounds that some of its provisions were discriminatory and infringed upon women’s rights to equality and health. Amita Dhanda, the petitioner, requested changes to the MTP Act in order to guarantee that all women, including those with disabilities, have access to safe and authorized abortion procedures. The case brought attention to the need for comprehensive reproductive rights legislation that takes into account the various needs of Indian women, even if it did not immediately result in revisions to the law.

NEWS AND PROTESTS

In Pune, Maharashtra, Cardinal Oswald Gracias organized a “March for Life” in opposition to India’s abortion legislation. Along with march participants, the Archbishop of Bombay delivered a memorandum to the local government advocating for the rights of the unborn. The majority of Indians from different religious groups have opposed abortion, although it has been increasingly legalized. The march has been scheduled for August 10th, which is the 52nd anniversary of India’s Medical Termination of Pregnancy Act, which made abortion legal there.

In 2017, a day-old newborn boy was discovered abandoned in Sector 57. After a couple heard the infant wailing, they called the police, and the youngster was saved. The one-day-old infant, wrapped in a towel, was abandoned to perish in the shrubbery across from the CNG station close to Wazirabad hamlet. Investigating officer Vinod Kumar told IANS that Sukharam and his wife, who are domestic helpers in Sector 57 and reside in Wazirabad village saw the newborn baby first and raised the alarm. The infant was taken to the nearby Artemis Hospital right away. At the Sector 55–56 police station, authorities had filed a case against unidentified individuals under Section 317 of the Indian Penal Code.
It is possible that the mother of the baby was unmarried and she abandoned him following fear of social stigma.[1]

Because of cultural beliefs and customs around abortion, people who have abortions may feel guilty, ashamed, or self-judgment. People who hide their abortion experiences out of fear of prejudice and judgment risk social isolation and a lack of support from others. Attitudes on abortion are frequently influenced by cultural and religious views; in many societies, abortion is seen as immoral or wicked.

Abortion-related societal stigma must be addressed through a variety of strategies, such as: Fighting stigma through activism, public education, and narrative initiatives that foster compassion, understanding, and support for those who have undergone abortions. we can provide thorough education on reproductive health, including correct information on the rights to an abortion and various forms of contraception. We should start promoting laws that safeguard and increase access to safe, legal abortion services, as well as initiatives to de-stigmatize the procedure in medical settings. We can encourage patient autonomy, dignity, and well-being as the top priorities in inclusive, nonjudgmental healthcare practices.

CONCLUSION

In conclusion, abortion is a complicated topic with many facets that affect legal, social, cultural, and medical aspects in India. The country’s legal foundation for abortion is provided by the Medical Termination of Pregnancy (MTP) Act of 1971, which was updated in 2021. It outlines the admissible situations, gestational restrictions, and procedural procedures. Despite legislative requirements, variations in availability and pricing among various areas and socioeconomic strata persist, making access to safe and legal abortion services difficult. The social stigma associated with abortion exacerbates these issues by fostering prejudice, silence, and shame while impeding attempts to guarantee everyone’s right to an abortion and access to quality healthcare.

In order to effectively address the complex issues surrounding abortion in India, a comprehensive strategy that includes legal reforms, enhanced healthcare facilities, thorough reproductive health education, and initiatives to eliminate societal stigma is needed. The promotion of understanding, empathy, and inclusion, in addition to campaigns for reproductive justice and autonomy, is crucial in fostering a welcoming atmosphere where people may obtain the reproductive healthcare services, they require without feeling judged or afraid. In the end, improving access to safe and dignified abortion care and expanding reproductive rights are essential to enhancing people’s health, well-being, and sense of dignity throughout India.

Reference(s):

[1] https://www.indiatoday.in/mail-today/story/foetus-found-in-lab-delhi-school-in-dock-273715-2015-11-20

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