The US Supreme Court on Friday (June 24), overturned Roe v Wade, a 1973 decision which gave American women the right to have an abortion before the fetus is viable outside the womb, that is before the 24–28-week mark. The ruling was anticipated after a draft opinion earlier in May. Abortion rights will now be determined by individual US states.
As widespread outrage against the judgement gains momentum, The Federal takes a look at what the Indian law says about abortion.
What is the Shantilal Shah Committee
Until the 1960s, abortion was illegal in India under section 312 of the Indian Penal Code. It was then that the government set up the Shantilal Shah committee under the leadership of Dr Shantilal Shah. The committee was formulated to take a deeper and nuanced look into the issue of abortion and to give needful insights on the same. The committee report recommended that abortion should be legalised along with formulating a law on comprehensive abortion care in 1964.
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No absolute right to women in India for abortion
Finally, a medical termination bill was introduced in the Lok Sabha and Rajya Sabha, which was later passed by the Indian parliament in August, 1971. The Medical Termination of Pregnancy Act, 1971, came to force on April 1, 1972 but it still did not give absolute right to women for abortion.
The act only allowed for medical termination of pregnancies. Doctors could carry out abortion under certain specified circumstances. It was criticised because the decision to go forward with the abortion, was at the doctor’s behest. Women didn’t have any autonomy on the matter.
The 1972 act, governed abortion decisions in the country for over five decades. Brief amendments were made to the Act in 2002, which allowed for the use of abortion pills, misoprostol and mifepristone.
Also Read: US Supreme Court overturns Roe v Wade; states can ban abortion
MTP Act gets progressive with 2021 amendments
The act was finally amended a year before, in 2021 after the Rajya Sabha’s approval of the Medical Termination of Pregnancy (Amendment) Bill, 2021 on March 16, 2021. The Lok Sabha had already approved the bill on March 17, 2020. The Bill came into force on September 24, 2021.
The new amended law was hailed as “forward looking, empathetic and looks at a very sensitive issue with a human face”.
“India will now stand amongst nations with a highly progressive law which allows legal abortions on a broad range of therapeutic, humanitarian and social grounds. It is a milestone which will further empower women, especially those who are vulnerable and victims of rape,” wrote BJP leader Smriti Irani in her log.
Time-limit fixed for abortion
After the MTP was amended, the upper limit for abortion was pushed from 20 weeks to 24 weeks in special cases, and also there is no upper limit if there are substantial foetal abnormalities diagnosed by a Medical Board. After the 2021 amendment, the medical opinion of only one doctor was required to terminate pregnancy upto 20 weeks and opinion of two doctors are needed only for pregnancies between 20 to 24 weeks.
In case of fetal disabilities, there aren’t any upper gestation limits. But a four-member team in the Medical Board is required to terminate pregnancy at any time on the ground of substantial foetal abnormalities.
Circumstances in which abortion is allowed
When continuation of the pregnancy poses a grave risk to the life of the pregnant woman or of grave injury to her physical and mental health
There is substantial risk that if the child was born, he or she would suffer from physical or mental abnormalities and be seriously handicapped. These two factors have to be certified by a medical doctor.
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Pregnancy by rape and unwanted pregnancy can be aborted
When a woman conceives after a rape, the anguish caused by such a pregnancy is presumed to cause a grave injury to the mental health of the pregnant woman and she can have the foetus aborted. An unwanted pregnancy caused by failure of contraception methods is presumed to cause grave injury to the mental health of the pregnant woman and can be aborted as well.
Besides acknowledging failure of contraception, MTP is now available to “any woman or her partner” replacing the old provision for “only married woman or her husband.”
Also Read: WHO’s new guidelines on abortions call for better care, fewer barriers
Who is eligible for abortion?
Women eligible for abortion of pregnancy upto 24 weeks are: Survivors of sexual assault, rape or incest; minors; change of marital status during pregnancy like becoming a widow or a divorcee; women with physical disabilities; mentally ill women, including mental retardation; foetal malformation; pregnant women in humanitarian disasters or emergency situation.
The Act does not specify that the woman who seeks abortion must be married and neither does the woman require spousal consent.
Further, the MTP Act states that pregnancy cannot be aborted without the consent of the woman.
Criticism of the amended Act
According to news reports, though the changes were welcomed, the law failed to recognise abortion as a woman’s choice that can be sought “on-demand”, as is the practice in 73 countries.