ABORTION LAWS IN INDIA

Why in the News?

The Supreme Court has referred a case to a larger Bench involving a 26 weeks pregnant married woman seeking abortion citing her inability to take care of the child due to post-partum depression and other health issues.

• She has two other children.
• The SC initially agreed to her plea but 2 days later, a two-judge Bench of Justices Hima Kohli and B.V. Nagarathna delivered a split verdict based on AIIMS report that the foetus was viable and had a heartbeat.
• the case is now referred to a larger bench headed by CJI citing that the highest court of the land cannot overlook the rights of an unborn child.
• This has ignited the pro-life versus pro-choice debate.

Medical Termination of Pregnancy (MTP) Amendment Act 2021:

1. The act requires the opinion of one registered medical practitioner for the abortion of a foetus up to 20 weeks of gestation.
2. Termination of pregnancy from 20 to 24 weeks of gestation would require the opinion of two registered medical practitioners.
3. Abortions over 24 weeks, in case of suspected foetal abnormalities shall require the opinion of a state-level medical board.

How is the MTP, 2021 different from the earlier 1971 MTP Act?

1. The upper gestation limit was increased from 20 to 24 weeks by the 2021 act for special categories of women, including survivors of rape, victims of incest and other vulnerable women like differently abled and minors.
2. Addition of a confidentiality clause:

• The name and other particulars of a woman whose pregnancy has been terminated cannot be revealed except to a person authorised by law. 

3. Mandate of Marital status removed
   1. The MTP services has been extended to unmarried women under the clause of failure of contraceptive.
   2. This is intended to provide access to safe abortion based on a woman’s choice, irrespective of marital status.

The global trend on abortion laws:

1. So far, ~60 countries across the world have eased abortion laws to expand the ambit of legal abortion.
2. Only 4 countries have removed legal grounds for abortion since 1990s. They include,
   1. U.S., (The U.S. Supreme Court eliminated the constitutional right to abortion in 2022)
   2. El Salvador
   3. Nicaragua
   4. Poland 
3. However, the overall global trend involves liberalisation of abortion laws and increased access to abortion services.

What arguments did SC judges give while delivering a split verdict on the case?

1. The split verdict was based on a medical report from AIIMS that said that,
   1. The foetus was viable and had a heartbeat
   2. The foetal heart would have to be stopped as part of the procedure or delivering the baby prematurely
   3. This might lead to severe complications both mental and physical for the child.
2. Justice Kohli delivered the verdict abortion cannot be proceeded as it will stop the heartbeat of a foetus that has life.
3. Justice Nagarathna differed stating that the petitioner was determined about her decision for abortion which is her rights under Article 21 (protection of life and personal liberty), which overrides the MTP Act.
4. This has triggered a pro-life versus pro-choice debate.
5. Indian laws do not clearly state whether the foetus is a living being or not.
6. The CJI-headed bench asked the woman to reconsider her decision to ensure that the child isn’t born with any deformities stating that both rights of the unborn child and woman’s autonomy are important.