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India’s (Changing) Stand On Abortion: Explained 

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An Ethical Dilemma

Abortion in India remains a moral and ethical dilemma even today. The debate between ‘Pro-Life and Pro-Choice’ seems equally balanced, making it difficult for clear laws on the issue to exist. Pro-Life supporters condemn abortion as they believe in rights of the unborn child insisting that human life begins at conception. Meanwhile, Pro-Choice supporters believe that women should have bodily integrity and have a choice over reproduction, nobody, not even the state, should dictate her actions. But the issue of abortion in a country like India cannot simply be neatly compartmentalized into Pro Choice and Pro Life options.

There are many related issues that complicate the matter like female foeticide, foetal abnormalities, birth control, rape, access to health care, poverty, jurisprudence, etc.

The Legal Stand

In India, the Medical Termination of Pregnancy (MTP) Act of 1971 is the governing law on abortions. Under the MTP Act, abortion is a ‘qualified’ right i.e. an abortion cannot be performed solely on a woman’s request, but on underlying conditions that the pregnancy poses a ‘substantial risk’ to the woman’s life, to her ‘physical or mental health’, if the unborn child  faces abnormalities or similar ‘substantial health risks’. In case of pregnancies caused by rape, the risk to the woman’s mental health is admissible grounds for abortion. Additionally, married woman can cite contraceptive failure to abort an unwanted pregnancy. The MTP Act also requires that abortions can only be performed by a registered medical practitioner before 12 weeks of pregnancy and requires the sanction of two medical practitioners between 12 and 20 weeks of pregnancy.

The 20-Week Stipulation

The main bone of contention in the MTP Act 1971 is section 3(2)(b) which strictly provides a ceiling of 20 weeks of pregnancy an abortion, going by the reason that most foetal abnormalities can be detected by that time. The on-going debate for this 20-week stipulation is that it is obsolete and has ceased to be reasonable today as technology has advanced and it is perfectly safe for a woman to abort even up to the 26th week of her pregnancy. Also, some rare congenital diseases can be detected only after 20 weeks; and if not aborted can put both the lives of the mother and the child at risk. Due to this 20-week stipulation, abortions after this period are often conducted illegally in shady, unhygienic conditions by quack doctors subsequently making it more dangerous for the mothers and their well-being.

The Niketa Mehta Case

The ‘star’ case governing the 20-week pregnancy stipulation clause for abortion was that of the couple Haresh and Niketa Mehta in 2008. The Mehtas’ plea for abortion, citing foetal abnormality was turned down by the Court on medical advice and on the grounds that only the legislature could address the demand for change in the legal limit of 20 weeks. It was a landmark for India’s policy on abortion as it opened people to debate the issue of extending the 20-week ceiling. Ever since, Court decisions have been varying, giving conflicting verdicts in a span of a few months, proceeding on a case-to-case basis on the issue.

Medical Termination of Pregnancy (Amendment) Act, 2014

The MTP Amendment act of 2014 suggested quite a few changes in the principal act of 1971. It gives clarity to “Medical health care provider” and “medical practitioner” but most importantly it exceeds the pregnancy termination ceiling from 20 weeks to 24 weeks and can take an independent decision with the consultation of a registered healthcare provider.

Recent Cases

In May 2017, the apex court denied a plea to abort another 26-week-old foetus, by a 35-year-old HIV-positive woman who had been sexually assaulted.

In June 2017, however, the Supreme Court allowed a woman from Kolkata to abort her 26-weeks pregnancy on the grounds of foetus abnormality.

In July 2017, the Supreme Court denied a 10-year-old rape survivor’s plea to abort her 32-week-old foetus after medical report deemed it unsafe.

Unsafe abortions remain one of the prime causes of maternal death and disability. When a pregnancy is unwanted, a safe abortion is vital in ensuring a woman’s health and well-being. Considering the lack of government support for children with disabilities, the argument for the foetus’ right to life needs to be reconsidered. The state’s control should be minimal, as it is the woman and her family who will be responsible for taking care of the child. It is only fair that women have a right to make their own choices about their bodies, their fertility, their families and their future.

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