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Giving birth is one of the most beautiful experiences of a woman’s life. Although initially painful, the joy of bringing a new life into the world supersedes all the physical hurt and the long hours of labour. The nine-month journey of watching and feeling an embryo gradually grow into a human being is the one journey that many women term as life-changing, and rightly so. However, raising a child is a responsibility, carrying a baby to full term is a long and arduous process, one that requires assistance and a lot of care and attention. It is definitely life-changing, but whether it’s uphill or downhill depends on the woman, the circumstances, the financial and physical condition and most importantly, their state of mind.

Medical termination of pregnancy or abortion (as it is commonly known as) has been a controversial subject for a long time. A lot of people strongly believe that it is morally wrong. However a lot of people also believe that having a baby is a personal choice and no one should be forced to have one if they are not ready. Although justified in their right, these beliefs aren’t what determines the fate of abortion in the country, the law governing it does. The Medical Termination of Pregnancy Act, 1971 (MTPA), sets the rules and guidelines for legal abortion in the country. It has its terms and conditions that must be met for the abortion to be considered legal under the ambit of law.

The act states that pregnancies not exceeding 12 weeks may be terminated based on a single opinion formed in good faith. In case of pregnancies exceeding 12 weeks but less than 20 weeks, termination needs opinion of two doctors. The act also lays down the conditions which the women have to fulfill in order for the termination to be implemented. Some of these conditions are:

  • Women whose physical and/or mental health were endangered by the pregnancy
  • Women facing the birth of a potentially handicapped or malformed child
  • Rape
  • Pregnancies in unmarried girls under the age of eighteen with the consent of a guardian
  • Pregnancies in "lunatics" with the consent of a guardian
  • Pregnancies that are a result of failure in sterilisation

It is these conditions that have been a subject of discussion and discontentment over the years. In September 2017, the apex court had allowed a thirteen-year-old rape survivor to abort her 31-week-old foetus. A Bench of three judges led by Chief Justice Misra, accompanied by Justices Amitava Roy and A.M. Khanwilkar, decided to favour the girl’s plea for an abortion. “Considering the age of the petitioner (rape survivor), the trauma she has suffered because of sexual abuse, the agony she is going through and the opinion of the medical board favouring termination of pregnancy, the termination of pregnancy should be allowed,” the Supreme Court ordered.However, a ten-year-old rape survivor from Chandigarh was not so fortunate and wasn’t allowed to abort the foetus because the pregnancy has crossed 20 weeks.

These are few of many cases where the aggrieved women have had to knock the door of the apex court because either they found out about the pregnancy late, or the complications developed after the 20-week cap or the whole judicial process was so long that by the time they could get a judgement, the damage was already done. Recently, the center upon the request of the Supreme Court had written to the states and union territories, to consider the appointment of permanent medical boards to provide women, especially rape survivors, urgent access to medical care and to consider their requests for abortion. However, these suggestions haven’t yet been acted upon. Currently, the women have to go through the inconvenient process of approaching the courts and waiting for their plea to be heard.

There was a ray of hope for women in 2014, when an amendment bill to the 1971 law was introduced. The draft bill raised the cap for an abortion from 20 to 24 weeks in consultation with a registered medical practitioner. It also allowed women to take an independent decision keeping in mind their right to reproduce. The draft bill also had provisions to allow a termination after the 24-week limit, if the foetus suffered from sufficient abnormalities.

The act was initially formed to find a way to curb illegal abortions and to safeguard the health and well-being of the woman and the child. However, the statistics show that even today unsafe abortions contribute to over 8% of maternal deaths. Legal and medical experts have argued time and again that the 20-week ceiling is not enough to make a conclusive determination of the fatal abnormality. All these factors have made a strong case for the amendment to be implemented. All the stakeholders of the act will only benefit from the ceiling being increased; this will, in turn, reduce the number of unsafe and illegal abortions in the country. It also saved the women the trouble of appealing to the Supreme Court and waiting for a judgment. Even though any rational person will believe this amendment to be a right step forward towards the idea of curbing all the unnecessary maternal deaths, this bill has yet to see the light of the day.

With the Supreme Court recently declaring privacy as a fundamental right, it is important to understand that right to reproduction comes under a woman’s fundamental right to privacy. However, we still read witness and hear about cases where 10 and 11-year-old rape victims are waiting for the Supreme Court to allow them to abort their foetus. The number of deaths caused by unsafe abortion is only increasing. Young women have to still fight so hard to protect their right over their body.

The act that was formulated to safeguard these women has, in turn, rendered them helpless and weak.  “Risk to the life of the pregnant woman” and “grave injury to her physical and mental health” have to be looked at in a broader context. Steps have to be taken to make sure the act doesn’t become redundant. With changing times, changing circumstances even the law of the land must change, so that it can serve the purpose of its formulation in the first place.  A welfare state is driven by its ability to provide for its citizen’s a reasonable and comprehensive system that is beneficial to all the stakeholders. It is the time that the 2014 amendment, come out of the cold storage so that in the coming years no 13-year-old rape survivor has to knock at the Supreme Court to safeguard her physical health, mental well-being, and her fundamental right to privacy and life.

 

 REFERENCES:

http://www.thehindu.com/news/national/the-hindu-explains-medical-termination-of-pregnancy-amendment-bill-2014/article18474057.ece

http://www.thehindu.com/news/national/supreme-court-allows-13-year-old-rape-survivor-to-abort-her-31-week-old-foetus/article19629701.ece

http://tcw.nic.in/Acts/MTP-Act-1971.pdf

http://www.creaworld.org/abortthestigma/6-things-you-need-know-about-mtp-act

http://indianexpress.com/article/india/sc-allows-24-week-pregnant-woman-to-abort-foetus-a-glimpse-of-the-trajectory-of-indias-abortion-laws-4480004/

http://www.prsindia.org/uploads/media/draft/Draft%20Medical%20Termination%20of%20Pregnancy%20Amendment%20Bill%202014.pdf

http://www.jmedsoc.org/article.asp?issn=0972-4958;year=2017;volume=31;issue=1;spage=1;epage=2;aulast=Phanjoubam

Chandrasekhar, S. India's Abortion Experience Denton, TX: University of North Texas Press, 1994.

PHOTO:

http://www.lawvedic.com/article/medical-termination-of-pregnancy-act-1971-97

 

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Written By Drashti Gala

1st Year Law student at Government Law College, Mumbai.

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