The Right to Abortion has been recognized as one of the facets of the Right to Life and Personal Liberty guaranteed under Article 21 of our Constitution. The right aims to make sure that a woman’s personal choice to conceive or not prevails over any other opinion or pressure put upon her. The right, of course, is not an absolute one and would depend upon several other circumstances prevalent at that time. The Medical Termination of Pregnancy (Amendment) Act, 2021 was put forth to lay down unambiguous and explicit rules and guidelines governing abortions in India. In this article, we will discuss the Act and some judicial decisions which add further meaning to the Act.
The Medical Termination of Pregnancy (Amendment) Act, 2021
The Act raises the upper limit of termination of pregnancy to 20 to 24 weeks, which was 12 to 20 weeks in the Act of 1971. Permission of a medical practitioner would be required to terminate the pregnancy up to 20 weeks and two medical practitioners for the period of 20 to 24 weeks. If a woman, more than 24 weeks pregnant wants to terminate her pregnancy, only in the case of fetal abnormality, a medical board at the state level would be made who will look into the matter.
According to the Indian Penal Code, 1860, terminating a pregnancy voluntarily was considered an offense. The Medical Termination of Pregnancy Act, 1971 was made an exception to this which is now amended to make the rules more progressive.
The Act allows termination of pregnancy in the case of failure of contraceptive, anomalies in fetus, or risk to the health of the mother, mental or physical. Unmarried women too, can go for termination of pregnancy under this Act, and the privacy of the woman is kept intact. The details regarding termination and other things can only be revealed to the persons authorized by the law.
Interpretation and Pronouncements of Judiciary
The Telangana High Court in a recent judgment allowed a woman to terminate 26 weeks old pregnancy. A 16-year-old girl (victim of rape) approached the court asking permission to terminate her pregnancy on the grounds that it would be a threat to her physical and mental health and also, she was not capable to bear the child physically, mentally, and financially. The High Court allowing her plea observed that forcing her to continue the pregnancy would violate her right under article 21. It also observed that the right to life of the mother has to be kept above the right to life of the fetus.
The question of giving priority to the right to life of the mother and the right to life of the fetus has been looked upon in several cases. The Calcutta High Court in a similar matter did not allow a woman to terminate her 26-week old pregnancy stating that the right to life of the fetus outweighs the mental trauma that would be suffered by the mother. The court didn’t take the financial and mental condition of the woman into consideration while upholding the rights of the unborn child. Similarly, the Kerela High Court rejected a woman’s plea to terminate 31-weeks old pregnancy saying that “the right to life of an unborn child is at par with the rights of a born child”.
The judgment by Telangana High Court is very progressive in nature. It makes sure that the autonomy of a woman regarding her reproductive rights rests with her in any case. 67% of the nations in this world recognize abortion but with some restrictions and bars. The bars are necessary to the extent it prevents a wrong and uphold the right of an individual, but the moment they become a hurdle in exercising one’s right, it needs to be rechecked and rethought. It needs to be understood that the upbringing and nourishment of a child is a huge responsibility and an unwilling person should not be forced to do it. In this way, not only the mother but even the child might suffer all of his life. Thus, forcing pregnancy upon a woman in the guise of protecting the rights of the unborn child would be unjust for him.
With this, it has been noticed that the medical professionals in this field, the gynecologists and obstetricians do not match the requirements of the country. Reports show that there is a 75% of shortage of practitioners in this field. This concern needs to be resolved to get a better reach to the poor and vulnerable section of the society, so that, they are provided with the necessary guidance and advice they require in this process.