Whose Choice? Unpacking the Complexities of Abortion Rights in India
Feb. 21, 2024 • Sneha, 2ND year student of LL.B. Professional course, Department of Law, Kurukshetra University, Kurukshetra
Student's Pen
Whose Choice? Unpacking the Complexities of Abortion Rights in India
Abstract:
The topic explores the difficult issues underlying a mother's decision to bring a pregnancy to term, especially in light of the social norm that favors having sons.
Introduction:
For a woman who is debating whether or not to embrace motherhood, having an abortion is more than just a medical procedure. It comes with a whole range of feelings and implications. Understanding the Fetus vs. Mother contradiction in the context of abortion in India is challenging. Standing on the precipice, the Indian lady feels a whirlwind of emotions whirling beneath her feet. She carries two lives within her, her own and the nascent spark of another in her womb. The relationship between the rights of the fetus and the mother becomes a promenade of shadows in this legal and cultural balancing journey.
India's abortion landscape:
The Indian Penal Code, 1860 (IPC) makes 'induced miscarriage' or abortion a criminal offense. The MTP Act is the exception to this law. The law safeguards registered medical practitioners by laying down certain conditions under which they can terminate the pregnancy. Under specific circumstances, it grants women the right to terminate pregnancies, acknowledging the mother's autonomy over her body and health. However, the shadow of prenatal "personhood" hangs heavy and trapping women in a web of moral and legal dilemmas.
Another element of intricacy is added by societal pressure. Unmarried women face the shame of rejection in a community that upholds traditional norms. The woman's mental state is weakened by whispers, scathing stares, and exclusion. This creates a powerful mixture of vulnerability and anxiety, especially when combined with the legal ambiguity surrounding the abortion rights of unmarried women.
Legal framework:
In 2022, the court recognized the right to abortion as a fundamental right under the right to life and personal liberty[1]. It declared discrimination based on marital status unconstitutional, allowing unmarried women equal access to abortion. It acknowledged the rights of transgender and gender-variant persons regarding reproductive autonomy.
- MTP Amendment Act, 2021: This amendment increased the gestational limit for "certain categories" of women to 24 weeks and included grounds like contraceptive failure. This legislation controls who can terminate a pregnancy and under what circumstances. Under some conditions, it permits the termination of pregnancies, such as when the mother's physical or mental health is at risk, when there is a significant chance that the child will be born with physical or mental abnormalities, or when the pregnancy was caused by rape or incest.
Women have the right to safe and legal abortion under specific circumstances until 20 or 24 weeks. Marital status no longer affects access to abortion. The right to abortion is recognized as fundamental, rooted in personal liberty and autonomy. However, challenges remain, including provider-centric regulations, stigma, and limited access in rural areas.
- Amendments: The MTP Act has been amended over the years to reflect changing societal attitudes and medical advancements. Notable amendments include increasing the gestational limit for abortions and expanding the categories under which abortions can be performed.
- Rights of Women: The MTP Act upholds the rights of women to make decisions regarding their own bodies and reproductive health. It recognizes that forcing a woman to continue an unwanted pregnancy can have serious physical, emotional, and social implications for her.
- Rights of the Fetus: While the MTP Act primarily focuses on the rights and well-being of the woman, it also considers the interests of the fetus, particularly in cases where the fetus is viable and capable of surviving outside the womb. However, the Act prioritizes the health and autonomy of the woman in cases of conflict between her interests and those of the fetus.
- Legal Restrictions: Despite the provisions of the MTP Act, there are legal restrictions on abortion in certain circumstances. For example, abortions beyond a certain gestational age may require special approval from medical boards, and sex-selective abortions are prohibited under the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, to address the issue of female foeticide[2].
Case Laws:
Take the landmark 2021 "unmarried woman" case, where the Supreme Court, divided in a 2-1 verdict, temporarily deferred a 26-week abortion, citing concern for the fetus's life. This, while acknowledging the woman's vulnerability as an unmarried individual facing social stigma and potential emotional distress. The case laid bare the inherent tension: can fetal rights truly be separated from the mother's lived reality, particularly when her very future hinges on this decision?
Other cases include-
- Suchita Srivastava v Chandigarh Administration (2009)[3]: This case established a woman's right to abortion as part of her right to personal liberty under Article 21 of the Constitution. It broadened the legal grounds for abortion beyond just saving the mother's life.
- Ms. X v Principal Secretary, Health & Family Welfare Department, Govt. of NCT of Delhi & Ors. (2022): This case declared discrimination based on marital status unconstitutional in accessing abortion services. It recognized the right to abortion for unmarried women.
- Bodhisathya Gautam v Union of India & Ors. (2022)[4]: This case affirmed the rights of transgender and gender-variant persons regarding reproductive autonomy, including access to abortion.
Other significant cases:
- Mst. B vs. State of Maharashtra (1982): This case allowed abortion due to the mental health of the mother.
- Sheela Barse vs. State of Maharashtra (1983): This case permitted abortion due to rape or incest.
- Nikhil Soni vs. Union of India (2022): This case extended the gestational limit for abortion to 24 weeks for 'certain categories' of women like survivors of sexual violence.
Conclusion:
The very reason of choosing this issue was the constant exposure I was having to the dilemma of women around me facing in different phases of having a pregnancy, terminating it or choosing the motherhood. When a woman came to know she is pregnant and will be a mother, she must have the option to proceed or not at the very beginning. Ignoring her cultural and personal preferences over the life of a fetus sounds impractical to me. She will be held accountable for the child's upbringing, and it is entirely up to the woman whether or not she wants to be a mother. In India, an unmarried pregnant lady is viewed as a disgrace on her character, and society abandons her. Abortion is a crime if and only if the choice is based on the gender of the fetus.
But some argue, to grant absolute autonomy to the mother, viewing the fetus solely as an extension of her being? This raises concerns about the sanctity of life, particularly as the pregnancy progresses. The fetal heartbeat, the first kicks, the undeniable development of another being within her cannot be entirely disregarded.
Perhaps the solution lies not in absolutes, but in nuance. In acknowledging the inherent complexity of the issue, the interconnectedness of the lives involved. The MTP Act, with its caveats and conditions, attempts to do just that. choice. Protecting the potential life of the fetus does not necessitate sacrificing the mother's well-being, and vice versa. The focus should shift to creating a supportive environment where informed choices can be made, free from judgment and prejudice.
This atmosphere requires comprehensive sex education, widely available and inexpensive contraception, and accessible and fair medical and legal assistance for all women, regardless of marital status. It necessitates open and honest discussions about abortion, debunking misunderstandings and respecting the real experiences of women who face this difficult decision. It demands empathy, compassion, and a dedication to establishing a culture in which both the mother and the fetus are viewed as interrelated characters in a complicated life story. Only then can we properly walk the tightrope, ensuring that the right to choose is a dance of empowerment rather than a fight for survival.
Author
Sneha, 2ND year student of LL.B. Professional course, Department of Law, Kurukshetra University, Kurukshetra
picture source: https://care.org.uk/cause/abortion/6-things-the-abor-tion-lob-by-wont-tell-you-about-decrim-i-nal-i-sa-tion