Abortion: Women's RIGHT or CRIME? The debate and where India STANDS

The United States of America's Supreme Court recently curtailed women's abortion rights in the world's most powerful country, leading to protests from women's rights groups. Here we take a look at the age-old debate and where India stands legally.

Women's protest in the US (Pic courtesy: Reuters)

The Supreme Court of the most powerful country in the world, the US, recently overturned a 50-year-old ruling that legalised abortion nationwide. With millions of women in the US expected to lose their legal right to abort, this has become a hotly debated topic across the world. Before diving into this ocean of opinions and laws, let’s take a brief glance at, word of the hour - Abortion.  It is said that usage of "Abortion" into the English language started around 1537. It came into English from the Latin which define it as a miscarriage, or the procuring of a miscarriage.

The Oxford dictionary now defines it as the deliberate ending of a pregnancy at an early stage. But it’s not a linguistic issue, but societal one.  And belongs to a group of those  words that cause extreme and emotional reactions, depending on the hearer. 

How 'society' deems abortion 

Abortion is largely unacceptable, if you take a religious view - and it's true almost of all religions. However, as society evolved and women, especially, began questioning the societal norms the discussion on women's right over their bodies started to gain pace.

Abortion: Women's right or an 'illegal' act?

To avoid unwanted pregnancy, should women should have right to decide whether to keep or abort a fetus? This is a widely debated topic and there is no one-size-fits-all answer. 

Explaining the importance of recognising the right to reproductive autonomy, the Bombay High Court had held that, “If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.”

What the data says about abortion in India?

According to a report, of the 48.1 million pregnancies that occur in India annually, approximately half are unintended. A third of all pregnancies are aborted. A total of 12.3 million abortions, accounting for 78% of all abortions, are illegal as per the terms of the Medical Termination of Pregnancy Act, 1971 (MTP Act) - even though they may otherwise be safe - solely because they occur outside of health care facilities. However, at least 800,000 of these abortions are unsafe, and unsafe abortions account for 10% of maternal mortality in India.

What are India’s laws on abortions?

After overturning of the landmark Roe v. Wade judgement of 1973 in the US - which gave women the right to have an abortion before the foetus is viable outside the womb or before the 24-28 week mark - many believed that India is better than the global superpower in this regard. 

However, Sneha Mukherjee, a Supreme Court lawyer explained that it’s too early to make this statement as there are some grey areas which needs to be addressed. 

In India, abortion has been permitted under certain conditions for the past 50 years. Medical Termination of Pregnancy Act, 1971 provided the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. If the abortion is not performed in “good faith”, Section 312 of the Indian Penal Code makes intentionally causing a miscarriage a crime, she explained further. 

In 2021, the MTP Act was revised. The present status of abortion law in India is that women may choose to end their pregnancies up to 20 weeks if their doctor recommends it. In case of special categories, women such as minors, survivors of sexual abuse, rape victims, incest, and disabled women can seek termination up to 24 weeks. It also underlined the recent judgement of apex court which permitted an unmarried woman’s petition to abort her pregnancy at 24 weeks.  
This Supreme Court judgement has also stated that the Medical Termination of Pregnancy Act, 2021 did not discriminate against married or unmarried women. 

However, other allied laws, including state-level policies, and the implementation of the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act impose additional conditions on the provision of abortion services.

Some people opined that India’s abortion law may seems liberal, but it is driven by a desire to keep population in check, rather than keeping women’s rights in mind. However, advocate Sneha Mukherjee says, “The priority of this decision was not population control.” 

The Supreme Court has recognised that the right to life and liberty under Article 21 of the Constitution encompasses the right to reproductive autonomy which includes the right to make “reproductive choices … to procreate as well as to abstain from procreating,” the report observed. 

Deep-rooted prejudice and discrimination against the girl child and preference of the male child have led to the misuse of abortion for gender-biased sex selection, leading to demographic imbalance over three decades now, Dr Ashwini Kumar Setya, who also writes on medical laws and ethics stated.  The solution lies in the mentality of society, laws alone will not help.