Law And Her: An Indian woman’s Right to Abort

Abortions have been a singularly contentious issue that bring to fore the core issue of women having ownership of their own bodies and of rights related to their bodies. While debates for and against abortion allowance rage across the world, we look here at what the Indian abortion law says and the areas on which it must improve. The Medical Termination Of Pregnancy Act, 1971 governs abortions in India.

What does the Law say?

The law sets out a variety of terms and conditions for medical abortions.

While only a single registered medical practitioner’s (referred to as doctor from here on) opinion is needed to end a pregnancy within the first 12 weeks, the opinion of two doctors is needed to end a pregnancy if it is beyond 12 weeks and up to 20 weeks. The law also states that the doctor in these cases can recommend the termination of the pregnancy if it would be harmful to the pregnant woman in some way or if there is a high chance that the child that is born would suffer from such physical or mental abnormalities so as to be seriously handicapped. Here, pregnancy caused by rape or due to failure of protection during sex also count as reasons to terminate a pregnancy within the first 20 weeks. In all cases consent of the pregnant woman is necessary for the medical abortion to take place but by mandating the need for a doctors approval, the law in effect takes away the right to decide from the hands of the pregnant woman to whom such right should inherently belong.

While a married or unmarried woman cam get an abortion in India under the necessary conditions, failure of contraception is an argument for abortion legally allowed only to married woman under the Act – this is highly problematic as it discriminates between citizens on the grounds of marital status.

What of pregnant minors and pregnant mentally ill persons?

In such a case, written permission of a guardian is needed before the pregnancy can be terminated. Here the consent of the pregnant woman, if a minor or mentally ill, is not needed for going ahead with the medical abortion. The law places no value on the consent of the pregnant woman here and robs them of their agency to make a choice.

A pregnancy can be terminated after 20 weeks only if carrying the pregnancy further would be fatal to the life of the pregnant woman.

Here the earlier condition of the possibility of the child being born with severe abnormalities is no longer a consideration for aborting a pregnancy although several foetal abnormalities become obvious only towards the later stages of a pregnancy.

Many circumstances may change post 20 weeks of the pregnancy and the right to decide to have the child or abort it should be that of the woman, even post 20 weeks. While the Supreme Court has intervened and allowed for abortions post the 20 week period on conditions other than those stipulated under the law when petitioned by concerned parties, there shouldn’t be a need to approach the Courts in the first place is my contention. There is a need to institutionalize a more progressive abortion law, the draft Medical Termination of Pregnancy (Amendment) Bill, 2014 could be a step in a more positive direction, though it still needs to be more centred on the autonomy of a woman’s right to decide on an abortion.

Alongside, the societal structures also inhibit the decision making power of women when it comes to abortions. General lack of autonomy, low educational and economic status and lesser say in households contribute towards this. To build informed choice and consent, capacity and true decision making power of women must be worked on.

Note: Sex selective abortions are banned under Indian law.

Vandita is a contributing columnist. Views and information are the author's own