Sir Ganga Ram Hospital, Delhi
Abortion has always been an extremely controversial subject for everyone. It has always been contended whether one should be permitted to undergo abortion legally or not. If yes, then under what circumstances?
So, let’s first know what abortion is.
WHAT IS ABORTION ?
An abortion is a procedure to end a pregnancy for removal or expulsion of an embryo or fetus from the uterus. Now, let’s see what are the methods by which abortion can be done.
METHODS BY WHICH ABORTION IS DONE
Medical Abortion :- This method can be used till 10th week of pregnancy. It is performed through taking two medications in a pill form: mifepristone and misoprostole.
Vacuum Aspiration:- This method can be used till 12th to 16th weeks of pregnancy. It is also called suction aspiration.
Dilation and Evacuation :- This method is used in second trimester usually after 14th weeks of pregnancy.
Induction Abortion :- This method is used when pregnancy has passed the 24 weeks and dilation and evacuation procedure can no longer be done.
CONDITIONS UNDER WHICH ABORTIONS CAN BE PERFORMED IN INDIA
There are mainly four situations under which a legal abortion is performed:
- If continuation of pregnancy causes any risk to the life of the mother or to her physical or mental health.
- If the fetus has any severe abnormalities.
- If the pregnancy occurred as a result of failure of contraception (this is only applicable in case of married women).
- If pregnancy is a result of sexual assault or rape.
Now, we need to know who all can undergo an abortion legally. So, let’s know what are the laws for abortion?
THE MAIN LAW FOR ABORTION IS:
MTP ACT, 1971 (Medical Termination of pregnancy)
According to the Medical Termination of Pregnancy Act,1971, abortion or termination of pregnancy is permitted only upto 20 weeks of gestation only in the following conditions:
When continuation of pregnancy is a risk to the life of a pregnant women or could cause severe injury to her physical or mental health.
When there is a risk that the child if born or dead(would be seriously handicapped due to physical or mental abnormalities).
When pregnancy is caused due to rape(presumed to cause grave injury to the mother’s mental health).
When pregnancy is caused due to failure of contraceptives used by a married women(presumed to cause grave injury to the mother’s mental health).
WHOSE CONSENT IS REQUIRED TO TERMINATE THE PREGNANCY?
As per the provisions of MTP Act, only the consent of women whose pregnancy is being terminated is required.
In case of a minor i.e. below the age of 18 years or mentally ill women, consent of guardian is required for termination of pregnancy.
Now after studying this MTP Act, we all come to know that pregnancy can be terminated upto 20 weeks but what if someone need to terminate it even after 20 weeks. Is there any law for that?
CAN PREGNANCY GET TERMINATED EVEN AFTER 20 WEEKS OR UPTO 24 WEEKS?
Yes, pregnancy can be terminated even after 20 weeks or upto 24 weeks but only in case of fetus having severe mental or physical abnormalities as you can see in the case below:
Case Laws :
“On January 2019, Calcutta High court allowed a 32 year old women to terminate her 24 weeks old fetus which according to the petitioner had a severe brain anomaly.”
But it’s not that easy to get the permission to terminate the pregnancy.In some cases, the pregnant women has to fight a lot and still court doesn’t allow her to terminate the pregnancy. Here we have example of the legal fights of abortion in India:-
Indu Devi vs State of Bihar & Ors 26 April, 2017
In this case, the Patna high court denied abortion of a 26 weeks old fetus of a HIV positive rape victim. After which the victim appealed to the Supreme court where they heard her plea but didn’t permit her to terminate the pregnancy as it was risky for both the baby and the mother. But under section 357-A CrPC, compensation of Rs. 3 lakhs was given to her as she was the victim of rape.
So, the law requires the doctor to assess the following conditions:
If the pregnancy would be harmful for mother’s mental or physical health and figure out the effects of pregnancy on your future.
If the child would suffer from any severe physical or mental abnormality which would leave the child seriously handicapped.
As we all know that knowing or trying to know the sex of the fetus is a crime and no doctor is allowed to disclose that to any of the family member. But many people still try to know the sex of the fetus and try to abort it if the child is female. So, here we have some actions which are being taken in case of an illegal abortion.
PUNISHMENT FOR COMMITTING AN ILLEGAL ABORTION
An abortion which doesn’t fulfill the conditions of law is considered as a crime under the general law on crimes in India.
- Abortion under 16 -20 weeks
The punishment for getting an illegal abortion is jail of time upto 3 years and/or fine. The doctor is also considered to commit a crime unless it was done in good faith to save the life of mother.
- Abortion after 20 weeks
If the abortion takes place after 20 weeks, when you can feel the fetus movements, both the pregnant and the doctor can be punished with jail time of upto 7 years and fine until it was done in good faith to save the life of pregnant women.
- Abortion without the consent of pregnant
If anyone forces you to undergo abortion, the punishment is jail time of upto 10 years and fine.
- Abortion resulting in death
If the patient dies because of an abortion carried out by an unskilled person, the doctor can be punished with the jail time of upto 10 years and fine.
Intentionally causing the death of the fetus can also be prosecuted under other provisions of Indian Penal Code, 1860 under which the punishment can extend upto 10 years.
In some cases, the abnormalities of the baby are unnoticed till 20 weeks because few organs does not get formed or developed till that time. So, for this problem, Our Health Minister, Dr. Harsh Vardhan, introduced the new MTP (amendment) Bill in Lok Sabha.
The Union Cabinet approved the Medical Termination of Pregnancy(Amendment Bill), 2020, which proposed the extension of upper limit of abortions to 24 weeks from 20 weeks. The extension of 24 weeks will help the survivors of rape, victims of incest and other vulnerable women. This is for expanding access of women to safe and legal abortion services on therapeutic social grounds. It is a step towards safety and well-being of women.
Globally, 56 million abortions take place every year. In India, 13 women die everyday due to unsafe abortions. The question here is do women even have the right to abort the unsafe pregnancy and lead a normal risk free life.
Do women have the Right to Abort?
Yes, a women has the Right to Abort if:
the continuation of pregnancy would involve risk to her life.
the termination is necessary to prevent the permanent injury to her physical or mental health.
the child would born is abnormal or would have serious physical or mental abnormalities.
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