India’s abortion law is humane
Wellbeing of pregnant women and unborn children is the supreme concern of the current legislation.
India is one of the countries which legalised abortion early. In 1971, Indian Parliament passed Medical Termination Of Pregnancy Act legalising abortion of certain pregnancies.
Medical termination of pregnancy (MTP) is a more humane term for abortion. Nowhere in the entire Act is the term “abortion” mentioned. It is always called medical termination of pregnancy or simply pregnancy termination.
The MTP Act has a manifest and a latent objective. The manifest objective is to terminate pregnancy if it involves risk to the life of the pregnant woman or grave injury to her physical or mental health or if there is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
The latent objective is to reduce the number of live births and control population growth. In a country like India, with a gargantuan population and rapid population growth, the latent objective is also important.
If the length of pregnancy does not exceed 12 weeks, the opinion of one qualified registered medical practitioners is enough regarding the risk involved to the pregnant woman and to the child to be born.
If the length of pregnancy exceeds 12 weeks but does not exceed 20 weeks, the opinion of at least two qualified registered medical practitioners is necessary about the risk of pregnancy.
This is another instance of humane nature of India’s abortion law.
A qualified registered medical practitioner is a person who has at least a bachelor’s degree in medicine and surgery (MBBS) with experience or training in gynaecology and obstetrics and whose name has been entered in State Medical Register.
A pregnancy can also be terminated if it is alleged by the pregnant woman to have been caused by rape, because the anguish caused by such pregnancy will be presumed to contribute a grave injury to the mental health of the pregnant woman.
This is one more instance of the humane nature of the MTP Act.
A pregnancy can be legally terminated if it occurs as a result of failure of any contraceptive device or method adopted by married woman or her husband for limiting the number of children.
Terms on termination
The anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. This has direct implication for the control of population growth.
It may be noted that no pregnancy with a length of more than 20 weeks will be legally terminated. In some industrialised countries abortions of third trimester pregnancies, which are called late-term or partial-birth abortions, are also allowed.
No late-term or partial-birth abortion is allowed in India. Even if a woman carries hydrocephalic baby who is certain to die before, during or shortly after childbirth, she cannot opt for termination of pregnancy if its length exceeds 20 weeks.
Indian law makers perhaps believed that after 20 weeks of pregnancy, the foetus is “viable” and that it is sin to terminate such a pregnancy.
No pregnancy will be legally terminated without the consent of the pregnant woman. But no pregnancy of a woman, who has not attained the age of 18 years, or who, having attained the age of 18 years is lunatic will be terminated except with the consent in writing of her guardian.
This means that a woman below 18 years of age, who is a minor, and a lunatic woman, who is mentally challenged, cannot decide about an important issue like termination of pregnancy. This also falls within the domain of humane nature.
No pregnancy will be legally terminated in accordance with the MTP Act at any place other than a hospital established or maintained by government or a place for the time being approved for the purpose of the Act by government.
MTP clinics or hospitals, which provide MTP services, provide family planning counselling to the pregnant woman if she already has a child or two.
Since India’s abortion law is humane in more ways than one, there is no organised opposition to MTP. In some developed countries like the USA, abortion is an issue in campaigns of elections at different levels.
But in India, MTP is not an issue in the campaigns of elections to the village panchayats, taluk panchayats, district board’s, state legislatures and Parliament.
Abortion laws in India need to take cognisance of a changing social context.
The Supreme Court allowed a rape survivor to abort her 24-week-old abnormal foetus.