Abortion Law In India

Why In The News: A married woman has asked the Supreme Court to allow her to terminate her 26-week pregnancy. The case has moved between two SC benches. It brings up important issues including a woman’s right to choose an abortion and the laws surrounding it.

On October 16, 2023, the Supreme Court dismissed a request to terminate a foetus beyond 26 weeks of gestation. The court cited a medical report indicating the absence of any abnormalities and highlighted the potential risk of lifelong physical and mental disabilities associated with a premature delivery.

Giving reasons for declining the request for MTP, said that the foetus, “having crossed the statutory limit of 24 weeks, the requirements either in section 3(2)(b) or section 5 must be met”.

According to these provisions, termination of pregnancy (MTP) can only be allowed if the foetus is over 24 weeks and either necessary to save the life of the mother or if the foetus has severe physical or mental abnormalities.

The court also mentioned that neither of the two reports “indicates an immediate need for termination to save the petitioner’s life as stated in section 5.”

The latest case brought up important issues including a woman’s right to choose an abortion and the laws surrounding it.

What Is The Case About?

A woman, who is 27 years old and already a mother of two, is at the centre of the case. According to her, the current pregnancy was unintended.
The woman argues that her family income is insufficient to support another child, and she is undergoing treatment for postpartum depression after her second child’s birth.
On October 9, a two-judge panel of the Supreme Court approved the pregnancy termination. Their rationale was that an unwanted pregnancy resulting from contraceptive failure equates to a forced pregnancy. The law allows termination of such pregnancies up to 24 weeks.
However, the All India Institutes of Medical Sciences (AIIMS), Delhi, sought clarity from the court about the legality of foeticide prior to termination, considering the foetus is currently viable.
On October 11, in response to AIIMS’ report, the original two-judge panel disagreed on allowing abortion. Consequently, the case was moved to a three-judge bench headed by the Chief Justice of India, D.Y. Chandrachud.
On October 13, the larger bench asked for a new medical report to determine the health of both the foetus and the woman.
This case has sparked a national conversation about pro-life versus pro-choice, as the larger panel of the Supreme Court has noted that the rights of an unborn child cannot be overlooked.

Is A Foetus A Living Being?

The legal status of a foetus in India is unclear.
Some experts believe that the “pro-choice” argument is not suitable for Indian society.
Even if the Supreme Court supports a pro-choice stance, it may not establish a future precedent.
This is because India’s public health system is not prepared to handle it.
Additionally, private healthcare is considerably expensive in India.
As a result, obtaining a safe abortion in India has become difficult.

Rights Of Unborn Child

The concept of “foetal viability” is new in India and is used as a measure to permit abortions.
The Roe v Wade verdict in 1973 in the US considered abortion a constitutional right up to the point of foetal viability—when a foetus can survive outside the womb.
Foetal viability in 1973 was at 28 weeks (7 months), but with scientific advancements, it’s now at 23-24 weeks.
In 2005, the Rajasthan High Court dismissed a challenge to the MTP Act’s constitutional validity on the grounds that it violates an unborn child’s right to life. However, the rights of an unborn child form the basis of laws dealing with succession and those banning foetal sex-determination.
Section 416 of CrPC also allows for a pregnant woman’s death sentence to be postponed.

Legislative Gaps

Indian law has been criticised as the decision to terminate after 20 weeks is left to doctors, not the woman.
Cases of women seeking court permission for late-term abortions highlight a legislative gap.
The Indian law on reproductive rights leans more towards a woman’s autonomy than the rights of the unborn child.

Pro-Life Vs Pro-Choice Debate

Pro-Choice Perspective

Proponents of the pro-choice movement assert that the fundamental right of a woman to govern her own body and determine her reproductive health is of utmost importance. They firmly advocate for a woman’s autonomy in deciding whether to proceed with a pregnancy, especially in cases where her physical or mental well-being is at risk.

Pro-life Perspective

On the opposite end of the spectrum, proponents of the pro-life movement assert that the rights of the unborn child are paramount and should be safeguarded. They maintain that life commences at conception and terminating a viable foetus is tantamount to extinguishing a human life. They also cite moral and religious grounds for advocating against abortion.

Ethical Considerations

The debate between pro-life and pro-choice advocates often revolves around the ethical implications of abortion. Pro-life proponents argue that all human life is sacred and should be protected at all costs, while pro-choice advocates emphasise the rights of a woman to make choices about her own body.

One major ethical consideration is the concept of personhood, or at what point a foetus becomes a fully developed human being with rights. Pro-life advocates argue that personhood begins at conception, while pro-choice advocates often believe it begins when the foetus is viable outside of the womb.

The Evolution Of Abortion Laws In India