With thousands of women marching in protest in Washington and across the United States after a newly elected President promised to name judges of the Supreme Court who oppose abortion, reproductive rights have never felt so endangered. There is a real concern about what would happen if Roe v. Wade is overturned in United States.

The legal regime in India too appears to be belligerent with issues whether, and to what extent, abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication with the emerging implications for reproduction rights.

These questions came into debate when on 28 February the Supreme Court discarded a woman's prayer seeking permission to abort her 26-week-old foetus detected with Down’s syndrome, a genetic disorder. The Bench declined the woman’s plea saying “Down’s Syndrome” does not qualify as a life-threatening factor hence there is no physical risk to the mother from the pregnancy.

In January 2016, it allowed a Mumbai woman to abort a 24-week-old foetus after medical reports found that the foetus had no skull. In yet another case, in 2015, the same court had allowed a 14 year old rape victim to undergo abortion after the 20 weeks deadline as prescribed under the Medical Termination of Pregnancy Act, 1971. Although this was treated as a special case with zero precedence value, the indecisiveness on the part of court is quite worrying.

Changing Paradigm

Terminating a pregnancy is often an emotional and complex decision for a woman at any age. Times have changed and abortion has been accepted by many societies considering the health of the mother as paramount. In spite of legislation in many countries across the globe, controversy surrounds this issue.

Women’s organizations campaign that woman has the fundamental right to decide for herself and hence the restrictions imposed by section 312 of the Indian Penal Code along with the Medical Termination of Pregnancy Act 1971, including the time limit of 20 weeks, other than the ones to ensure good medical conditions, contravene the right to abort.

Domain of Right to Privacy

Freedom from interference in one’s privacy and family life is protected by Article 12 of UDHR, Article 17 of ICCPR, Article 11 of the American Convention, and Article 8(1) of the European Charter. The European Court of Human Rights, in Bruggemann and Scheuten v. Federal Republic of Germany and Paton v. United Kingdom, authoritatively held that a decision one makes about one’s body, particularly one’s reproductive capacity, fall squarely in the domain of private decision making. The right to determine the number and spacing of children relates to the right to privacy. However, it also suggests government duty to facilitate decision-making in matters of family planning.

Forbidding abortion would also undermine the right to health as an integral part of Article 21 of our Constitution as it violates her right to control her property, her body as wells her life, liberty and happiness.  

Sadly, the law in India does not give a woman a right over her own body. Even though the 1971 Act was passed in order to legalise abortion, the so-called stellar provisions of the Act ultimately left the matter to the choice of medical practitioners instead of the subject herself.

Despite the fact that unsafe abortion accounts for the third highest cause of pregnancy-related deaths, the sanctity of life cannot be disputed, but the court, in many cases, took a moral and strictly positivistic position and ignored the physical and mental condition of women.

Approximately 26 million pregnancies are terminated legally across the world, and 20 million are terminated illegally, with more than 68,000 deaths. In India alone 10-12 million abortions take place annually, resulting in 15-20 thousand maternal deaths due to illegal abortions. These abortions don’t just take away the innocent infant’s life but also pose a threat to the mothers’ lives.

The MTP Act: Issues and Challenges

Legislation has miserably failed to achieve its objectives as there has been increasing number of illegal abortions after MTP 1971. One of the major criticisms of the MTP Act, 1971 is that it still keeps the women away from the decision making process and is more clinic-centric. Legal and medical experts feel that revision of the legal limit for abortion is long overdue.

The 45 year old enactment seems to be obsolete with so many technological breakthroughs in the field of health and diagnostics. The rising incidence of sex crimes and the urgent need to empower women with sexual rights, reduction of fertility rate etc. make it imperative to change the law and address issues such as: recognition of woman’s right of choice; decriminalisation of abortion; improving the facilities to provide last-mile access to safe abortion as per MTP Act; acknowledgement of the termination of pregnancies with major abnormalities as a part of standard medical care and procedure at any stage of pregnancy without having to seek legal exception for each case, and  identification and avoidance of potential conflict of the MTP Act with PC & PNDT Act that results in stigmatization of all doctors providing abortions.

Conclusion

There is a need to strike a balance between the rights of women to control their bodies and the legitimate interests of the state to prevent selective sex determination as well as protect the interests of the woman and the unborn foetus. These changes contemplated in the draft amendment are a positive move towards recognising women’s rights, preventing their suppression and, it shifts the law from being pro-practitioner to pro-women.

The draft amendment Bill, 2014 which seeks to increase the time period within which abortion may be carried out from 20 weeks to 24 weeks is still in the legislative womb. Further, recognising a woman’s agency over her body, it has proposed that within the first 12 weeks, an abortion may be carried out by a registered doctor at the request of a pregnant woman, without the opinion of a registered doctor. It also permits abortion beyond the stipulated 24 weeks, in case the foetus suffers from substantial foetal abnormalities.

The writers are, respectively, Associate Professor, National Law University, Odisha and an Advocate, Supreme Court of India.