Abortion: A Battle for Women's Right to Her Body




The MTP Amendment Bill 2020 is a groundbreaking piece of legislation that addresses the issues raised by India's 15.6 million abortions every year.

The Central Family Planning Board (25th August 1964), in its 16th meeting, raised its concerns about the increasing number of illegal abortions and the threat that they instil upon the health and life of women. As a result, the Shah Committee was set up to look into the matter. The Committee performed extensive quantitative examinations of several countries, including the United Kingdom, Japan, former Hungary, Czechoslovakia, and India; based on the Committee's recommendations, the Medical Termination of Pregnancy Act was formulated and came into force on 10th August 1971.


The enactment is not a result of any feminist movement. The reason for it to come into force was the increasing frivolous suits by medical practitioners and inadequate family planning. The rights of women were not taken into consideration in the enactment.


The new legislation that came in 2020 is welcoming and progressive, granting women to seek abortions as part of reproductive rights and gender justice. Earlier the MTP Act had an abortion cap of 20 weeks. Only when the woman's life is at stake could the time limit be exceeded. Moreover, pregnancy caused by rape or the failure of a contraceptive device between married couples is regarded as inflicting severe harm to the woman's mental health. The court in the Nikita Mehta case rightfully stated that the gestational period had proceeded much beyond the prescribed perinatal time. The amendment increased the maximum period for women, including rape survivors, incest victims, differently-abled women, and adolescents, from twenty to twenty-four weeks. The failure of contraception has also been acknowledged. Medical Termination of Pregnancy is now available to "any woman or her partner," removing the previous provision only available to "married women or their husbands."


Pregnancy termination has been referred to as foetus murder, and imprints of such social mentality can be traced back to historical times. However, with the progress of society in terms of technology and lifestyle, most countries now recognise this right. In the infamous case of Roe vs Wade, the US Supreme Court decided that "a mother may abort her pregnancy for any reason up until the "moment at which the foetus becomes viable." However, with the season of conservative government, the Roe case faces scrutiny in great America. US Supreme Court wants doctors performing abortions to get admitting privileges from a nearby hospital.

Even the most progressed parts of the world are deaf on this issue. In 2018, a member state of the Council of Europe, Ireland, legalised abortion.

In the instance of foetal anomalies, the Indian amendment states that there is no limit on gestational age. This concerns maternal death and morbidity as a result of unsafe abortions.


According to the Abortion Assessment Project (one of the most comprehensive Indian studies on abortion that ran from 2000 to 2004), 56% of all abortions in India were unsafe. According to statistics, 3.6 million of 6.4 million abortions performed each year were unsafe. These unsafe abortions were responsible for up to 13% of all maternal deaths in the country.


While the amendment is a welcoming one, Delhi is far away. The critical flaw of the MTP 2020 is that women still do not have the right to terminate a pregnancy, which can only be done after the approval of a medical practitioner and, in some instances, makes abortion a privilege to be availed only at the discretion of the state.


Zero Autonomy for Women, and Medical Boards

In the landmark judgment of Suchita Srivastava v. Chandigarh Admin and Devika Biswas v. Union of India, the Supreme Court held, "a woman's reproductive autonomy to be her fundamental right to privacy. Also, that the decision to have or not have a child should be hers alone, devoid of any state intervention." Despite such a progressive and deterrent judgment, no step has been made to grant women the autonomy to decide whether to terminate or carry forward with the pregnancy.


The enactment curtails a woman's autonomy further by restricting the termination decision upon the board of medical members. Since 2017, a flood of petitions has been filed in the Supreme Court and various High Courts by women seeking to end pregnancies that have progressed beyond the MTP Act's twenty-week limit.

However, as the courts lacked medical competence and were ill-equipped to make decisions independently, they began appointing medical boards and government-run medical institutions.


A detailed analysis report of Pratigya Campaign for Gender Equality and Safe Abortion stated:

Owing to the unavailability of a clear mandate, these medical boards would frequently look at the feasibility of the foetus, the possibility of corrective surgery, or even moral opinions for the abortion.

The nine-month period is a namesake given to the timeline in which a foetus grows into an infant. The mental, physical and psychological stress is of the women carrying it goes far beyond. Hence, the decision to terminate or carry forward the pregnancy should be of the woman after being informed of the risks.


Further, even the courts have made situations worse in some instances. Practising lawyer Meenaz Kakalia recalls the case of a juvenile rape survivor who was 24 weeks pregnant. She defended in the Bombay High Court, one of the judges said, "Are you sure she is not married to the accused?" - Even though she is a kid, if she is married to the boy, it will not be considered rape since the Indian Penal Code does not recognise marital rape.

The court implied that if the MTP Act's requirement of a pregnancy resulting from rape was not met, the court might not allow the abortion. The garb of helplessness is not what civilians/ justice seekers would expect from the court.


The lack of Healthcare Facilities and Medical Experts

Apart from the judicial incompetence, the medical infrastructure also lacks to provide healthcare facilities to pregnant women. The Institute for Justice, Law and Society (CJLS), Jindal Global Law School, an educational research centre, undertook a study that emphasised the lack of healthcare access, both in infrastructure and specialists for reproductive treatments.

There is a shortage of over 80% of gynaecologists and obstetrics in most states and Union Territories. Many states, including Tamil Nadu, Arunachal Pradesh, and Gujarat, have reported a near-total lack of professionals, particularly in rural areas. According to research, paediatricians are scarce in states like Arunachal Pradesh, Meghalaya, Mizoram, and Sikkim.


Delay in timely Medical Care to Rape Victims

The CEHAT team describes the difficulties many child rape survivors face as they await court orders on whether or not to have a child. Munni was 28 weeks pregnant when the court granted her a request for pregnancy termination. She was 31 weeks pregnant at the time of the treatment. The delay in procedural formalities and lack of medical facilities delays timely operation on the matter. As a result, a rape victim has to go through pregnancy, making it psychologically and mentally even more difficult.


The Bombay High Court's verdict in ABC vs State of Maharashtra (CWP 451 of 2019) has now been echoed in another case, illustrating that courts are progressively adopting a rights-based stance when assessing the rights of rape survivors.

"86…when it comes to the interpretation of the expression "life" in Section 5 of the MTP Act, we cannot construe the same as restricted to mere physical existence or mere animal existence or mere survival of the pregnant mother. The expression cannot be confined to the integrity of the physical body alone but will comprehend one's being in its fullest sense. That which facilitates fulfilment of life as much within the protection of the guarantee of life. The expression will include the right to live with dignity and not to merely survive with indignity, not to mention the life – long physical and mental trauma which such episodes invariably generate."


Abortion: A Ground for Divorce

Justices Kurian Joseph and Sanjay Kisan Kaul told Sneha Mukherjee, the woman's lawyer, that the unborn child should have been represented in court rather than the mother. Justice Joseph said, "You should make the mother hear her child's heartbeat." He further stated that if the lady "reconciles with the spouse," she will "regret killing the baby."

In the case of Suman Kapur vs Sudhir Kapur on 7th November 2008, The apex court upheld the plea of Sudhir Kapur that he was entitled to seek divorce under the Hindu Marriages Act, as his wife Suman Kapur had undergone three abortions without his consent.


It is a matter of deliberation whether abortion without the husband's consent shall amount to a legal ground for termination of the marriage. It is important to note that the pressure from in-laws and husbands or society amounts to an unbalanced trauma that women have to endure. Making abortion a ground for divorce would only lead to forceful conceiving. Furthermore, a woman who is not prepared to become a mother would have to go through an agreed process of childbirth that could put her and the life of the unborn in danger.

It must be noted that while balancing every individual's right, the gravest harm is done to the fundamental right of a woman. That is her Right to Life and Liberty [Article 21] and her right to choose.


Studies show that around 6% of women, including up to 10% (one in 10) of pregnant women, experience depression at some stage. Post-partum depression affects about 13% of young moms, and it is more intense and lasts a lot longer. It can begin as soon as a few months after the birth of the child. A woman's body is especially vulnerable during pregnancy. It is due to the various hormonal changes that impact her mental and physical well-being.

According to research, a sexually abused woman has more significant health issues and is more likely to have conflicts with her partner during pregnancy. She also has higher degrees of worry and panic than people who have never been sexually abused. Psychologist Andrew Solomon in his book Far From the Tree, states that children born as a result of rape are more prone to develop severe psychiatric disorders, the most frequent of which are Post Traumatic Stress Disorder (PTSD), depression, and anxiety.


To view abortion as murder is to file a case for a non-existing client. Abortion shall not be considered murder because no individual life is at stake. It is a part of the woman's own body that is being removed. Denying a woman the right to have an abortion is denying her control over herself.

From time immemorial, the life of an unborn has been incomparable to the life of an adult. Laws of nature are not for men to change. However, a woman's right over her body needs to be absolute while deciding whether she wants to conceive and get pregnant or wants to abort.

Moreover, the codified marriage laws were stipulated a long time back when society's needs were different. Today, individuals have different relationships and marriages. They look for a partner as a companion rather than a primary means to increase the family tree. Be it sexual intercourse or carrying forward with the pregnancy or terminating it, a woman's consent should be of the utmost importance. There exist marriages where women are forced into establishing sexual relations with their husbands. The child is a result of marital rape - a heinous crime that has been given the grab of legal protection in the name of the sacrosanct institution.


The primary purpose of marriage was to take forward the family line through procreation, but with changing times, the needs of the people are changing. Moreover, it has been a long-fought battle for women to gain autonomy over their bodies. Life is a blessing of nature that a woman carries, but limiting women as the child-bearing machine is a sheer violation of women's human and fundamental rights.




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