15- October-2023-Special-Article

ABORTION LAWS IN THE SPOTLIGHT AGAIN

The story so far:

A married woman 26 weeks pregnant has approached the Supreme Court seeking to terminate her pregnancy citing inability to take care of the child due to post-partum depression and other health issues. The larger Bench headed by the Chief Justice of India, which has observed that the highest court of the land cannot overlook the rights of an unborn child thus igniting a pro-life versus pro-choice debate.

What does the MTP Act say?

According to the Medical Termination of Pregnancy (MTP) Amendment Act 2021, opinion of only one registered medical practitioner will be required for the abortion of a foetus up to 20 weeks of gestation and of two for the termination of pregnancy from 20 to 24 weeks of gestation. The opinion of a state-level medical board is required for abortions over 24 weeks, in case of suspected Foetal abnormalities.

How is the 2021 law different from the earlier 1971 MTP Act?

The 2021 Act increased the upper gestation limit from 20 to 24 weeks for special categories of women, including survivors of rape, victims of incest (the crime of having sexual intercourse with a parent, child, sibling, or grandchild) and other vulnerable women like differently abled and minors.

A confidentiality clause was added which said that the name and other particulars of a woman whose pregnancy has been terminated cannot be revealed except to a person authorised by law.

It also extended MTP services, under the clause of failure of contraceptive, to unmarried women to provide access to safe abortion based on a woman’s choice, irrespective of marital status.

What is the global trend on abortion laws?

Globally, there has been a trend towards liberalisation of abortion laws and increased access to abortion services. Since the early 1990s, nearly 60 countries across the world have eased abortion laws to expand the grounds under which abortion is legal.

Only four countries, namely the U.S., El Salvador, Nicaragua, and Poland have removed legal grounds for abortion during this time period. Most notably, the U.S. Supreme Court eliminated the constitutional right to abortion in 2022.

Is a foetus a living being? What does the law say?

The Indian legal scenario is not clear on whether the foetus is a living being or not. A pro-choice discourse, according to her, is not a materially and politically conducive argument for Indian society. Even if the Supreme Court takes a pro-choice view in this case, it will not be able to set a precedent for the future. The reason, she says, is that the Indian public health system is not geared up to address this and that private health care is very expensive. So, getting a safe abortion in India has become very precarious.

What were the observations by the CJI-headed Bench?

On October 12, the top court asked the woman to reconsider her decision to terminate the pregnancy and carry the foetus for a few more weeks so that the child isn’t born with any deformities. The Bench observed that there are rights of the unborn child too and that a woman’s autonomy is also important. The Bench said that the rights of the unborn child should also be balanced.

Mains Question

In any abortion the question of being either Pro-Life or Pro-Choice is a big question in front of the jury. Justice cannot be delivered to one without being unjustified towards others. Comment (150 Words) 10 M

Ans:

In the debate surrounding abortion, the issue of Pro-Life versus Pro-Choice is a major consideration. The Pro-Life argument asserts that a fetus is a human life and therefore entitled to the same rights and protections as any other human being. Pro-Choice advocates argue that a woman has the right to make decisions about her own body and reproductive choices.

However, when it comes to the legal system, the question of balancing these two positions becomes complex. On one hand, a decision in favor of Pro-Life could mean imposing restrictions on women’s reproductive rights and possibly even criminalizing abortion. On the other hand, a decision in favor of Pro-Choice could mean denying the rights of the unborn fetus.

Ultimately, the legal system must strive to find a balance that respects the rights and autonomy of both the woman and the fetus. This requires careful consideration of the facts and circumstances of each case, as well as a deep understanding of the ethical and moral issues at play. Only in this way can justice be delivered to all parties involved.