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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

The newly amended abortion laws

 

Introduction

Abortion  has always been a topic of  intense moral, ethical, political and legal debates making abortion  not a medical problem but adding the taste of the family, the state, motherhood and women’s sexuality to it thereby creating issues on it.

The 1971 Medical Termination of Pregnancy (MTP) Act empowered the women to get abortion care to all.

The newly Medical Termination of Pregnancy Act 2021[1]makes more safe and legalized services on therapeutic, humanitarian, eugenic and social grounds. The new law, which recently was amended came into force from 25 March 2021, shall make a contribution towards ending preventable maternal mortality to help meet the Sustainable Development Goals (SDGs).

Features of the Act

·         The Act regulates the conditions under which a pregnancy may be aborted, it also increases the time period within which an abortion can be legally conducted.

  • Earlier, an abortion required the opinion of one doctor if conducted within 12 weeks of conception and two doctors if it is done between 12 and 20 weeks. But, now on the consent of one doctor the time period is up to 20 weeks, and if done on the consent of two doctors then in the case of certain categories of women between 20 and 24 weeks. 

  • States and Union Territories are directed to form Medical Boards to decide if a pregnancy may be terminated after 24 weeks in cases of substantial fetal abnormalities (mostly seen in rape cases).

 

Analysis of MTP(Act)

  • Many people have been demanding through modes off writ petitions to have a permission of aborting beyond 20 weeks but the Act only allows the abortion after 24 weeks where diagnosed a fetal abnormality or rape by Medical board. Thereby writ petition only remaining a source for abortion after 24 weeks.
  • The Act requires abortion to be performed only by gynaecologists. India faces a 75% shortage of such doctors in community health centers in rural areas, pregnant women in village conditions or in urban cities too may continue to find it difficult to access facilities for safe abortions.
  • Taking view of the present scenario and modernization, section 3 of the amendment now has been extended to include unmarried women in it. Addition of the term ‘women and partner’ apart from ‘women and husband’. Therefore it has given a chance to an unmarried women to undergo abortion.
  • The introduction of section 5 A which penalizes the medical practitioners who somehow fail in their attempt to protect the privacy of the women wanting to undergo abortion.

Sex biased abortions

The complicated relationship between abortion and the practice of selective abortion of female fetuses has been a dilemma that the women’s movement has been grappling from the past times. Such situations come into effect wherein women themselves decide to have sex-selective abortions, sometimes under family pressure or due to complex understanding of ethics therefore neglecting their health conditions affecting their body. Every year many Indian women take the risk of abortion under pressure from their husbands’ families, and it is usually not an informed choice that they willingly make. The PCPNDT[2]came into effect in 1994 after a successful campaign in the face of rising instances of sex-selective abortions. The campaign included several sections of the society making several demands one of them was campaigning for the legislation restricting the test of the biological sex of the fetus.

Both the MTP and PCPNDT Acts, have the imprudent women’s right to control their bodies, they should be restricted by law from choosing specifically to abort female fetuses. Even though the feminist position on sex-selective abortions in India has witnessed significant shifts In the last four decades[3] feminist position on sex selective abortions in India have seen remarkable shifts. Be it liberalising the abortions through the MTP Act or the penalisation of sex-selective abortions through the PCPNDT Act, a woman’s bodily autonomy still primarily lies with the state rather than with her.

 

On one hand, the confidentiality clause in the MTP Act mandates medical practitioners to protect the person’s identity, and on the other, the POCSO Act and the Code of Criminal Procedure (CrPC) require mandatory reporting of sexual offences against children.[4] Some of the changes like the extension of gestational limits, the inclusion of unmarried women can be laudable but the amendment still leaves the women with various restrictions and conditions, which in many cases become an impediment in access to safe abortion. While a women suffers injury, pain at every point she again has to restrict herself in the boundaries of the law and she is still dependent on the law to get various permissions that are only given in some cases. In Justice K.S.Puttaswamy (Retd.) vs. the Union Of India And Others[5], Justice Chandrachud stated that, ‘reproductive choice is a personal liberty guaranteed under Article 21 of the Indian constitution, which, despite laying a robust jurisprudence on reproductive rights and the privacy of a woman, does not translate into a fundamental shift in power from the doctor to the woman seeking an abortion’. Therefore, we may say that abortion still lies with the state led conditions and not with the rights of the state.

Conclusion

The process of abortion includes the life of such a person  who’s consent is not even taken, who has not even seen his/her parents, has not even kept a foot on this beautiful world. Such activities should completely be restricted in the society. There are certain circumstances where an abortion becomes need of the hour. For that situation the laws govern the people. The newly amended abortion laws are beneficial to some extent as they have a bit of the modern approach but still certain conditions regarding abortion lies with the state and the women doesn’t have their rights.

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Authored by Lakshay Sharma

Student, HPUILS Shimla

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[1] https://www.who.int/india/news/detail/13-04-2021-india-s-amended-law-makes-abortion-safer-and-more-accessible

[3] https://thewire.in/health/medical-termination-of-pregnancy-amendment-bill-women-abortions

[4] https://www.thehindu.com/opinion/op-ed/seeking-a-more-progressive-abortion-law/article30777394.ece

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