Roe v. Wade Overruled : What Does Indian Law Say On Abortion?

Intense debates are going on about the decision of the Supreme Court of the United States of America which held that there is no constitutional right to abortion by overruling the 50-year old land mark decision Roe v. Wade.Rights activists and prominent public figures including US President Joe Biden, Vice President Kamala Harris, former US President Barack Obama, Michelle Obama, Bernie Sanders and world leaders like Justin Trudeau and Emmanuel Macron have harshly criticized the ruling given by the US Supreme Court.The judgment came in the case Thomas E Dobbs v. Jackson Women's Health Organization, in which the Court by 6:3 majority upheld a Mississippi law (Gestational Age Act) which prohibited the abortion of a foetus above the age of 15 weeks except in the case of a medical emergency. Observing that "the Constitution does not confer a right to abortion", the majority led by Justice Samuel Alito left it to the federal states to decide whether to permit or regulate abortion. Three judges of the liberal block, in a vociferous dissent from the majority, wrote that taking away abortion rights curtails "women's status as equal and free citizens" and "diminishes women's opportunities to participate fully and equally in the Nation's political, social and economic life".As widespread outrage gains momentum against the US Supreme Court ruling, let us have a look at the Indian law relating to abortion.What is the position of Indian law?Section 312 of the Indian Penal Code criminalizes intentional causing of miscarriage, if it was not done in good faith for the purpose of saving the life of the woman.In 1971, a law was enacted by the Parliament called the Medical Termination of Pregnancy Act which allowed registered medical practitioners to carry out abortion under certain specified circumstances. The law granted immunity to doctors performing abortion in accordance with its provisions from the prosecution under Section 312 IPC. The law does not give absolute right to women to abortion. Abortion is permitted on medical opinion under certain circumstances to a specified limit.Upper-limit for abortionWhen the law was initially made in 1971, the upper-limit for abortion was 20 weeks. Now, after the 2021 amendment, abortion is permissible upto 24 weeks in cases of women under specified conditions. Also, after the 2021 amendment, there is no upper-limit for abortion if "substantial foetal abnormalities" are diagnosed by a Medical Board.After the 2021 amendment, the medical opinion of only one doctor is needed to terminate pregnancy up to twenty weeks. Before that, pregnancy upto only 12 weeks could have been terminated with the opinion of one doctor. Following the 2021 amendment, opinion of two doctors are needed only for pregnancies between 20 and 24 weeks. But the opinion of a 4-member Medical Board is required to terminate pregnancy any time on the ground of "substantial foetal abnormalities".As per Section 5, the ceiling limit is not applicable if two medical practitioners form an opinon in good faith that the termination of pregnancy is immediately necessary to save the life of the woman.The Medical Termination of Pregnancy (Amendment) Act 2021 came into force with effect from September 24, 2021.Circumstances in which abortion is allowedAbortion is allowed on medical opinion that :The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health, or;There is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped.Pregnancy caused by rape can be terminatedWhere any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.Unwanted pregnancy caused by failure of birth control method or contraception can be terminatedThe anguish caused by "unwanted pregnancy" caused by failure of contraception methods is presumed to cause grave injury to mental health of the woman and can be aborted.Women eligible for termination of pregnancy up to twenty-four weeksOn October 12, 2021, the Union Government notified the Medical Termination of Pregnancy (Amendment) Rules 2021, in which the categories of women eligible for abortion of pregnancy up to 24 weeks were specified. They are :(a) survivors of sexual assault or rape or incest;(b) minors;(c) change of marital status during the ongoing pregnancy (widowhood and divorce);(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];(e) mentally ill women including mental retardation;(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and(g) women with pregnancy in...

Roe v. Wade Overruled : What Does Indian Law Say On Abortion?

Manu Sebastian

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