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RIGHT TO CHOOSE MOTHERHOOD: AN OVERVIEW OF INDIAN WOMEN

ABSTRACT:

“No woman can call herself free until she can choose consciously whether she will or will not be a mother.”                                             – Margaret Sanger, Founder of Planned Parenthood

Each year millions of women have unwanted pregnancies. These pregnancies have an immense impact on a woman depending on factors such as her health, relationships, financial capacity and the availability of proper health care facilities. All these factors in addition to few other factors highly influence a woman’s decision either to carry on the pregnancy or to seek an abortion. Given the complexity of this decision, the only person righteously entitled to take this decision is the pregnant woman herself. But in reality, women do not have the right to make this decision. The present Indian legislation in this regard i.e. Medical Termination of Pregnancy (Amendment) Act, 2021 does not give autonomy to women to choose to terminate the pregnancy, it instead allows her the same under certain circumstances, and only after a medical professional or in some cases a Medical Board is satisfied that those circumstances are met. The paper attempts to analyse the provisions of the MTP Act, 2021 and its limitations in providing women the right to choose motherhood coupled with societal prejudices. Towards the end, the paper suggests measures to make motherhood a women’s right to choose worldwide.

KEYWORDS:

Abortion, Pregnancy, Right, Woman, Motherhood

INTRODUCTION:

A woman may have an unwanted pregnancy because of various reasons, irrespective of those reasons or circumstances, a woman having a right to life and health, should have the right to choose motherhood. Since a woman very well knows what she can or cannot cope with within her life and body. Therefore, when a woman is not able to carry on a pregnancy she seeks an abortion.

“An abortion is something done voluntarily by a woman when she does not want to continue pregnancy.”[1] It can also be called Induced abortion.

A study published in the Lancet estimated that “15.6 million abortions took place in 2015 in India.” According to this study, “3.4 million (22%) of which were performed in health facilities, 11.5 million (73%) being medication abortions performed outside health facilities, and 0.8 million (5%) of which were carried outside of health facilities by methods other than medication.” Also, “abortion rate was 47 abortions per 1000 women of the age between 15 to 49 years and that half of the pregnancies were unintended.”[2]

Prior to this, “the last available estimate of abortions taking place in India was 6.4 million per year from the Abortion Assessment Project – India”.[3]

HISTORICAL BACKGROUND:

Until the second half of the nineteenth-century abortions were legal in most of the states but by the end of the century every state came up with a law criminalising abortion with the exception to allow the same only to save a woman’s life. But these laws never ended abortions they instead sent them underground where abortions were carried out in unsafe and unsanitary conditions which were many times followed by the death of the woman concerned. In wake of such a situation demands started arising from various sectors around the 1960s to make abortion legal. Therefore in India also in the 1960s contemplations on a legal framework were ushered in and the government of India in 1964 constituted a committee to recommend measures to draft a law on this subject. The suggestions of the committee led by Shantilal Shah were accepted and introduced as the Medical Termination of Pregnancy Bill in 1970 and in August 1971 this Bill became an Act. Prior to 1971, The Indian Penal Code, 1860 under Section 312 criminalised abortion.

The main objectives of this research paper are to study the provisions of the MTP Act, 1971 along with the changes brought about by the MTP (Amendment) Act, 2021 and to analyse the limitations of this Act in recognising the women’s agency at the center of it all. Apart from the legal obstacles in the way of a woman’s right to choose motherhood the paper also aims to illustrate how abortion is not legal even according to the perception of society. In the end, the paper seeks to suggest a few measures to make the right to choose motherhood available to each and every woman.

RESEARCH METHODOLOGY:

Secondary sources of data have been used to analyse the legal provisions available to women seeking abortion and the limitations of the present legislation. The data collected is mostly from sources of various articles, reports published by the government and websites of different governmental and non-governmental agencies and organisations.

REVIEW OF LITERATURE:

“The incidence of abortion and unintended pregnancy in India, 2015” is a study conducted by the Guttmacher Institute, New York,  International Institute for Population Sciences (IIPS), Mumbai and Population Council, New Delhi published in Lancet Global Health journal in 2017. This is the first study to be conducted on a large scale, specifically planned for estimating abortion incidence in India. This study has major implications in terms of safety in abortion services’ provisions.

“Abortion in India – still not a right but a privilege” is anarticle written by Meenaz Kakalia criticising the newly passed MTP Act, 2021. The author puts forth trends in previous judicial orders and also her experience as an advocate filing petitions for pregnant women requesting abortion beyond the specified limit. In the article, she has explained how the government constituted Medical Boards are an absolute invasion of privacy of the woman.

“Abortion is a woman’s right to decide” is an article written by Colin Gonsalves and Sneha Mukherjee. The article as a whole criticises the government for their negligent approach towards women’s right to abortion and also figures out how the MTP (Amendment) Act, 2021 has failed to acknowledge a woman’s right over her body and how the medical boards are totally unnecessary.

“India’s amended abortion law still gives doctors, not women, the final say in terminating pregnancy” is an article written by Akshita Nagpal. The article describes the unsafe access to abortion facilities and highlights few other aspects of the MTP Act, 2021 in lieu of which the act cannot be considered progressive enough.

THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971:

The 1971 Act put an outer limit of 20 weeks on the length of pregnancy and at the same time required two doctors to certify that “continuance of the pregnancy would involve a risk to pregnant woman’s life or could cause grave injury to her physical or mental health or when there is substantial risk involved that the child, if born would be seriously handicapped due to physical or mental abnormalities.”[4]

The Act further provided that “when any pregnancy is alleged by the pregnant woman to have been caused by rape” or “when the pregnancy occurs as a result of the failure of any device or method used by the married woman or her husband for limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.”[5] Also, the Act allowed abortion beyond the 20-weeks limit when “the medical practitioner is of the opinion that such an abortion was immediately necessary to save the pregnant woman’s life.”[6]

As earlier mentioned the 1971 Act based itself on Shantilal Shah Committee’s report which set the gestational limit at 20 weeks in the wake of technological constraints which made abortions performed after 20 weeks unsafe but the advancement of technology has rendered it possible to carry out an abortion at any stage of pregnancy. Therefore, a need to amend the Act was felt. Also because of the expansion of feminist jurisprudence in the last few years over this issue, the government finally decided to amend this Act. 

THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021:

Few days before the COVID-19 induced lockdown was declared, the Lok Sabha on 17 March, 2020 passed the Medical Termination of Pregnancy (Amendment) Bill, 2020. Thereafter, on March 16, 2021, the Rajya Sabha passed it and finally on 25th March, 2021, the Act received Presidential assent. The following are the key changes brought about by the Amendment Act:

The gestational limit which was 20 weeks earlier has now been raised to 24 weeks, but only “for rape or incest survivors.” The present act requires “approval of one doctor for pregnancies up to 20 weeks” and for 20-24 weeks timeline reserved for special category women, approval of two doctors is required. Whereas, the 1971 Act required approval of one doctor for pregnancies up to 12 weeks and two doctors’ approval was required for 12-20 weeks. Another major change brought is that now an unwanted pregnancy caused because of contraceptive failure can be terminated by a woman regardless of her marital status. The MTP Act, 1971 specified that only a “married woman and her husband” could do this but now the word ‘husband’ has been replaced by the word ‘partner’ thereby, for the first time taking the dialogue outside the confines of marital relationship that it was trapped in, legally. Also, in the case of foetal disability, there is no upper gestational limit if the same is decided by a government constituted Medical Board.

LIMITATIONS OF THE ACT:

The amended act has introduced few changes that are worthy of appreciation, but they are not sufficient. The limitations of the Act can be analysed under the following heads:

Absence of right to choose: Although the amended act has been able to overcome many hurdles in providing better access to abortion yet it has failed to rectify the basic flaw of the earlier act that a woman does not have a right to terminate the pregnancy, instead she is permitted the same under certain circumstances only. And that is also limited to only qualifying women.

“In other words, abortion continues to be a privilege authorised by the State in certain cases.” [7]

The provision for ‘choice’ therefore has in entirety been excluded from the act. The Act has failed to recognise the right of a woman in making decisions about her body.

Safe access is critical: It took the Indian Government 50 years to amend the MTP Act, 1971. This negligent approach of the government pushed thousands of abortion seekers underground where abortions are performed under unsafe and unhygienic conditions.

“Around 800,000 unsafe abortions are carried out in India each year even today.”[8] A study published in the Lancet estimated “abortions performed outside health facilities in India in 2015 to be around 1.23 crore.”[9] “Around 56% of abortions are unsafe in India and 10 women died because of it,” according to the Ministry of Health and Family Welfare (2015 report). According to the National Family Health survey (2015-16), “only 20% of abortions occur in public sector facilities.” NFHS 2015-16 has further stated that registered medical doctors performed only 53%  of abortions.[10]

Gestational limit is still 24 weeks: While earlier termination of pregnancy beyond a certain gestation limit was restrained citing lack of medical provisions, the medical capability is no longer a limit. The amended act puts a limit of 24 weeks which is not rational in the wake of today’s technology that has advanced sufficiently to allow abortions even up to the full term.

Despite various Supreme Court judgements ruling for choice, no visible change in the law: The MTP Act, 2021 is also in contradiction with various rulings of the Supreme Court where the court has held that a woman alone has a say in making reproductive choices.

A nine Judge Constitutional bench of the Supreme Court in Justice K.S. Puttaswamy v. Union of India[11]or the 2017 privacy judgement, has ruled that “a woman’s right to make reproductive choices is a dimension of personalliberty under Article 21 of the Constitution.”

Also in landmark cases such as Suchita Srivastava v. Chandigarh Administrator[12] and Devika Biswas v. Union of India[13] The Supreme Court has held that “a woman’s reproductive autonomyis her fundamental right to privacy, the court also said that the decision to have or not have a child should be a woman’s alone, devoid of any state intervention.”

The MTP Act is however at odds with these judicial rulings. The amendment to the 1971 Act was a wasted opportunity to fill the gap in these judicial rulings and the Indian legislation.  

The Medical Boards are hindrances: The amended act further curtails the autonomy of the pregnant woman by subjecting the decision of her pregnancy termination upon Medical Boards under certain specified circumstances.

The amended Act“requires a woman seeking an abortion to approach a Medical Board in case of substantial foetal abnormalities where she has already crossed the 24-week limit.”[14] The boards consist of a minimum of three doctors. The provision of these Medical Boards was not there in the 1971 Act, they have in fact been instituted as a consequence of various orders of the Supreme Court and High Court which appointed these boards since the courts lacked medical expertise and therefore it became a norm to appoint these medical boards to help the court arrive at a decision. These boards impose a number of hindrances to women seeking late abortions.

“These Boards are unconstitutional and violate the fundamental rights of pregnant persons by subjecting them to multiple invasive examinations and causing unnecessary delays in the termination process.”[15]

Apart from being unnecessary and causing a breach of privacy the establishment of these boards is also not feasible as the amended act provides for “a single board for a state”[16], but in light of the huge number of abortions taking place in India post the timelimit, it is not possible that a single board can deal with all of these cases. Even the establishment of multiple boards will not solve the problem as no state at present has the resources either economic or human to operate these boards.

The outcome of the case depends on the preconceptions of the judge: Although in some specified cases the opinion of the medical boards is required, there are chances of the case turning up in the court. Now, in such cases, the outcome of the case grossly depends on the judge’s personal opinions about abortion.

“In one such case, a now-retired Supreme Court judge lamented to the advocate of a woman seeking abortion saying: “You should be filing the vakalatnama on behalf of the unborn child and not the mother – ask her to listen to this child’s heartbeat.” This hearing resulted in the destiny of a 21-year-old being shut in a brutal marriage.[17] This is just one of the many comments that pregnant women seeking abortions have to endure.

PERCEPTION OF SOCIETY

“Unwritten and unsaid prejudices follow women from menstruation through pregnancies to menopause, in most cases without any legal or family support.”[18]

Abortion is not only illegal or restricted so far as the law is concerned but it is also not legal even in the perception of society. Society considers abortion for health-related reasons, rape cases and cases of foetal abnormality as more worthy abortions as the woman in these cases is a victim of circumstances beyond her control. It is still embedded in the minds of society that only some women qualify to seek abortion than others. A woman’s reasons are always important and even more than that they should not be anyone else’s business as a woman knows very well what she can or cannot cope with within their lives. For a woman, a child is undoubtedly a lifetime commitment and when a pregnancy is an unwanted one this decision becomes even more complicated but in all cases, it must be left to the woman alone as she is in a right position to decide what effect such a child, if born, would have on her. Unwanted childbearing creates a crucial difference in the life of a woman at all stages, for a teenager who because of some unfortunate reasons landed in such a situation but wants to complete her studies and fulfill her aims, or a woman who does not want a child, an overburdened mother who cannot cope with one more child or an old woman who erroneously believed that she is now not capable of conceiving.

Therefore, until society’s perception is changed to accept the fact that a woman needs an abortion and for that she should not be subjected to societal prejudices, legal abortions cannot be provided except in certain circumstances mentioned in the Act. It’s only when women’s right to choose motherhood is acknowledged as a moral necessity and also in law , and not just on medical grounds but also on social, psychological, economic and other grounds that this right will be made available to the vast majority of women seeking it.

SUGGESTIONS

Clearly, effective leadership and proper implementation is the key towards success in bringing progressive changes. In the past decade number of efforts have been made towards making abortions safer, which has resulted in noteworthy progress. To make motherhood a woman’s right to choose, the following suggestions can be taken note of:  

  1. The first important requirement is the presence of a political will, therefore at least one major political party should come forward in support of this cause and even more an accountable government that takes care of women’s health on a priority basis.
  2. Then the active involvement of health workers committed to providing safe abortions in a helpful manner to whosoever requests it is needed.
  3. Also, inviting respectable public figures to speak about and enlighten people can give the required push.
  4. Women’s groups at the national level should raise demands for more liberal abortion laws and to educate the public at large, and they should reach out to policymakers, health professionals and the media and thus increase their support base.
  5. The need to conquer fear is, however, of the utmost importance. Women need to act courageously and speak out boldly.
  6. Changes are also required in the MTP Act, 2021 as the amended act, barely recognises women’s agency at the center of it all, among other things it needs to take note of the medical boards as they are an absolute invasion of privacy and are totally unnecessary.

CONCLUSION

After five decades of the passing of The Medical Termination of Pregnancy Act, 1971, the Indian Government finally bothered to amend it. Although the amended act is a good start, in recognising a woman’s right to choose motherhood, much still needs to be achieved in this direction. At present 73 countries allow abortion on request, the present government also, therefore, needs to awake and ensure that each and every woman seeking an abortion has the right to do so whenever they desire. As motherhood can never be legitimately imposed on a woman. This year India completes 75 years of its independence, now it needs to be seen how much more years it will take to attain independence for its women in all respects. And for that day to come not just the government but the efforts of the whole society are required.

Name: Chandni

College Name: Army Institute of Law, Mohali

Course: B.A.LL.B. 1st Year


[1] Dr Nikhil Datar, Common causes of miscarriage: Here are things to know, THE INDIAN EXPRESS, (June 6, 2019, 10:54 AM), https://indianexpress.com/article/parenting/health-fitness/common-causes-of-miscarriage-here-are-things-to-know-5767874/.

[2] Susheela Singh “et al.”, The incidence of abortion and unintended pregnancy in India, 2015, NCBI, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5953198.

[3] Ravi Duggal & Vimala Ramachandran, The Abortion Assessment Project – India: Key Findings and Recommendations, TAYLOR FRANCIS ONLINE,(Apr. 27, 2005), https://www.tandfonline.com/doi/full/10.1016/S0968-8080%2804%2924009-5.

[4] The Medical Termination of Pregnancy Act, 1971, § 3(2)(b), No. 34, Acts of Parliament, 1971 (India).

[5] Ibid.

[6] The Medical Termination of Pregnancy Act, 1971, § 5, No. 34, Acts of Parliament, 1971 (India).

[7] Meena Kakalia, Abortion in India – still not a right but a privilege, THE LEAFLET, (May 3, 2021), https://www.theleaflet.in/abortion-in-india-still-not-a-right-but-a-privilege/.

[8] Colin Gonslaves & Sneha Mukherjee, Abortion is a woman’s right to decide, THE HINDU, (Apr. 8, 2021, 00.02 AM),  https://www.thehindu.com/opinion/op-ed/abortion-is-a-womans-right-to-decide/article34266999.ece.

[9] Supra at 2.

[10] Akshita Nagpal, India’s amended abortion law still gives doctors, not women, the final say in terminating pregnancy, SCROLL.IN, (Apr. 29, 2021, 01:30 PM), https://scroll.in/article/993527/indias-amended-abortion-law-still-gives-doctors-not-women-the-final-say-in-terminating-pregnancy.

[11] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

[12] Suchita Srivastava v. Chandigarh Administrator, (2009) 9 SCC 1.

[13] Devika Biswas v. Union of India, (2016) 10 SCC 726.

[14] The Medical Termination of Pregnancy (Amendment) Act, 2021, § 3(2B), No. 8, Acts of Parliament, 2021 (India).

[15] Parvathi Sajiv, Medical Boards under MTP will make Abortion Inaccessible, THE LEAFLET, (Feb. 4, 2021), https://www.theleaflet.in/medical-boards-under-mtp-bill-will-make-abortion-inaccessible/.

[16] The Medical Termination of Pregnancy (Amendment) Act, 2021, § 3(2C), No. 8, Acts of Parliament, 2021 (India).

[17] Supra at 7.

[18] Chitra Subramaniam, India’s new abortion law is progressive and has a human face, OBSERVER RESEARCH FOUNDATION, (Mar. 7, 2020), https://www.orfonline.org/expert-speak/india-new-abortion-law-progressive-human-face-62023/.

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