Amid the hue and cry of thousands of citizens, primarily women over the new abortion laws in the month of May this year passed by the legislature of the state of Texas in the U.S. posing a ban on abortion as early as a six-week pregnancy, which is a very short span, the Indian Lawmakers enacted and enforced the new, Medical Termination of Pregnancy(Amendment) Act 2021, which could be considered to be a more liberal and progressive law for the protection of interest of Pregnant women across the country.

The U.S. Supreme Court ruled in the case of ‘Roe v Wade’ as the right to abortion as a facet of the right to life. The Apex court of India also in the landmark cases of, ‘Suchitra Srivastava & Anr. V. Chandigarh Administration’ and ‘K.S. Puttuswamy V. Union of India’ that it is the right to life of women to have her reproductive choices and sexual health. The Medical Termination of Pregnancy (Amendment) Act, 2021 recently came into operation with certain regenerated and liberalized provisions, which seek to give pregnant women more safe options for terminating the pregnancies at even a later stage of their gestation period.

 

Section 3 of the previous Act provided for the termination of Pregnancy only up to a period of twelve weeks or in case the pregnancy was more than twelve weeks but less than twenty weeks, then a Medical Practitioner may only terminate it, upon the condition that if such pregnancy is likely to pose a threat to the life of a woman or to her mental or physical health or if the child conceived would be born with serious mental and physical retardness. The new amendment inserted extends the gestation period for terminating pregnancy from twenty to twenty-four weeks, but they remain subject to the aforementioned conditions, and it could only be done on the opinion based on the good faith of the medical practitioner. This extended period for termination is also applicable to those pregnancies which occurred because of the woman being a victim of rape or in cases where the woman has been anguished and suffered due to unwanted pregnancies. The abovementioned relaxation in gestation period is also provided in case of women who are minor or who are lunatic, but the consent of their guardian is a mandate in such a case, however, the consent of the women herself is required in any other case of abortion irrespective of the fact whether the woman is married or not.

Another significant amendment that has been incorporated in the recent Act is the protection of privacy of the woman i.e., the medical practitioner is not permitted to disclose the name or any other information of the woman who has aborted her pregnancy to anyone except a person who is authorized by law in this regard and any practitioner who contravenes it would be liable to punishment of imprisonment up to a year or fine or both.

Although the offense of causing miscarriage has been made punishable under the Chapter XVI(offenses affecting the human body) of the Indian Penal Code, 1860 but this Act has been excluded from the operation of those offenses as the said Act is considered to be a welfare statute enacted, by the legislature with the intention of protecting the right of abortion of pregnant woman, keeping their physical and mental health as the paramount consideration, but still, this right is to be exercised with a very high caution by the woman and discharged with diligence by the Registered Medical Practitioner so as not to be taken undue advantage of like offenses female foeticide or depriving the right to family and children to any person and thereby defeating the purpose of the Act itself.

 

Neha Purohit
Assistant Professor
Alliance School of Law