Even as modern Indian women are achieving new heights of success, the existing legal system needs an overhaul of the abortion law. These changes have to be in sync with the existing social fabric and medical advancement in the current scenario.
A scrutiny of the statistics reveals 3.6 million abortions done annually in India are medically unsafe. These form a significant chunk of a total of 6.4 million abortions that Indian women undergo. It’s no surprise then that India witnesses an abnormally high maternal death rate of 10-13 percent.
The Section 3 Subsection 2 of the Medical Termination of Pregnancy Act 1971 permits a pregnant woman to undergo an abortion after consultation with one doctor up to 12 weeks of pregnancy. During 12-20 weeks, a woman can opt for it after seeking medical opinion of two doctors. Beyond 20 weeks, abortions can be done only after approval from the court, which is granted only in cases wherein there is a significant risk to the lives of the mother or the baby.
“(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-
(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is,’
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are.”
Despite all the legal provisions, India’s MTP Act has failed to provide reproductive justice to the Indian women owing to a series of legal loopholes. For instance, a woman doesn’t have autonomy over her own body in choosing whether she wants to be a mother or not.
The other issue plaguing this act is an outdated concept. Simply put, the low time frame of 20 weeks for abortion was included in the Act to prevent sex-selective abortions and protect the girl child. With the advancement of technology and lower incidents of female foeticide in the country in comparison to 1970s, this clause has simply lost its significance. The sex of the baby can now be determined from 7 to 20 weeks using a variety of modern tests.
Even realistic situations like pre-natal defects of heart or brain development or any other issue make already existing situation more painful for an expectant mother. The Section 3 Subsection 2 of the Act allows for abortion only in cases wherein there is a grave risk to the life of the mother or the child, or there is a substantial risk that the child born would suffer such physical or mental abnormalities as to be seriously handicapped. This leaves all cases wherein the child born could have minor handicaps in the eyes of the law but have the potential of seriously affecting his or her normal life all through the life. Moreover, these abnormalities can be detected beyond 20 weeks with improved technologies now. When such a situation arises, the pregnant woman is left with no choice but to move the court to seek approval for an abortion, which is often denied because the law doesn't cover them.
“(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health ;
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.”
Existing social scenarios also have no mention or solution in the current Act. As only married women are covered under the Act, pregnant women in live-in relationships and rape victims have to go through a lengthy and expensive legal process to secure approval for abortions, which takes a heavy toll on their mind and body.
Lawclik is of the view that the law should be amended urgently with a medically sound and humanitarian approach. A reviewed and strengthened MTP Act that permits abortions, as long as they are safe for the mother and the baby is the need of the hour.
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