IS MTP ACT A TERMINATION OF THE RIGHTS OF WOMEN?

Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or “spontaneous abortion”; these occur in approximately 30% to 40% of pregnancies.[1] Around 73 million induced abortions take place worldwide each year. Six out of 10 (61%) of all unintended pregnancies, and 3 out of 10 (29%) of all pregnancies, end in induced abortion.[2] Global estimates from 2010–2014 demonstrate that 45% of all induced abortions are unsafe. Of all unsafe abortions, one third were performed under the least safe conditions, i.e., by untrained persons using dangerous and invasive methods. Developing countries bear the burden of 97% of all unsafe abortions. More than half of all unsafe abortions occur in Asia, most of them in south and central Asia. In Latin American and Africa, the majority (approximately 3 out of 4) of all abortions are unsafe. In Africa, nearly half of all abortions occur under the least safe circumstances[3]

HISTORY

Since ancient times, abortions have been done using a number of methods, including herbal medicines acting as abortifacients, sharp tools through the use of force, or through other traditional medicine methods.  Induced abortion has a long history and can be traced back to civilizations as varied as ancient China , In ancient India since its Vedic age, ancient Egypt with its EberS Papyrus and the Roman Empire in the time of Juvenal. One of the earliest known artistic representations of abortion is in a bas relief at Angkor Wat (c. 1150). Found in a series of friezes that represent judgment after death in Hindu and Buddhist culture, it depicts the technique of abdominal abortion.[4]

TYPES OF ABORTION

Women can terminate their pregnancy by taking oral medicines after coitus or undergoing surgery. The method of abortion differs depending upon the pregnancy stages. Various factors like the age of the foetus, the mother’s health condition and her comfort are considered before finalising the apt procedure.

SURGICAL ABORTION

1. Induced Abortion: Approximately 205 million pregnancies occur each year worldwide. Over a third are unintended and about a fifth end in induced abortion. Most abortions result from unintended pregnancies. In the United Kingdom, 1 to 2% of abortions are done due to genetic problems in the fetus. A pregnancy can be intentionally aborted in several ways.[5] The manner selected often depends upon the gestational age of the embryo or fetus, which increases in size as the pregnancy progresses. Induction abortion is a method to terminate pregnancy in the second trimester. Labour is induced using medicines. The foetus is expelled due to the contractions resulting from the drug. This is another method used for 13 to 20-week-old pregnancies.The doctors administer a drug intravenously to induce labour. In some cases, an injection may be administered into the abdomen to ensure the demise of the foetus. Effects of the medicine start between 2 – 4 hours after administration.The embryo and the placenta come out through the vagina.Doctors may have to perform a curettage to scrape the foetal remains from the uterus.[6] This is an effective method for pregnancies in the second trimester. Sometimes, it might lead to excessive bleeding and infection.
2. Dilation and Curettage:It is done in the second trimester of pregnancy. The technique used combines suction and surgical tools such as forceps. This procedure is used for pregnancies from 13 to 20 weeks. The cervix is dilated the previous day using osmotic dilators. Osmotic dilators are soft sticks that are placed on the cervix. They expand, causing the expansion of the cervix. The patient is given general anaesthesia before surgery begins. The doctor disinfects the vagina and cervix using an antiseptic liquid. Besides suction tools, specialists use forceps and a curette to remove the embryo and placenta from the uterus. The patient has to stay in the hospital till the effects of the anaesthetic wear off.[7]
3. Vacuum Aspiration:Vacuum aspiration is a procedure to remove the embryo using suction. A tube is inserted into the uterus, and the foetus is sucked out either manually or using suction machines. This procedure is suitable for pregnancies up to 12 weeks old. No special preparation of the uterus or cervix is necessary. A speculum is inserted to hold the vagina open. Antiseptic medicine is applied to the vagina and cervix to prevent infection. An anaesthetic is injected into the cervix to keep it numb. The embryo and placenta are sucked out through the tube. Patients can mostly leave the hospital on the same day.[8]

MEDICAL ABORTION

In this type of abortion, oral medicines are given to the patient to remove the foetus from the uterus. The procedure is safe and doesn’t come with the pain or risks of surgery. There is no need to stay at the hospital. This abortion is performed in women whose pregnancies are less than ten weeks old. Medical abortion is done using two medicines, namely, Mifepristone and Misoprostol. The most common practice is to give both drugs orally to the pregnant woman. In most cases, doctors require a pregnant woman to be present at their office to take the first medicine. The patient is sometimes allowed to start the medication at home.[9]

MISCARRIAGE

Miscarriage also known as spontaneous abortion, is the unintentional expulsion of an embryo or fetus before the 24th week of gestation. A pregnancy that ends before 37 weeks of gestation resulting in a live-born infant is a “premature birth” or a “preterm birth”.When a fetus dies in utero after viability, or during delivery, it is usually termed “stillborn”. Premature births  and stillbirths are generally not considered to be miscarriages, although usage of these terms can sometimes overlap.[10]

REASONS FOR ABORTION

Poor health condition of the mother, if the mother is weak enough or carries life threatening disease which can affect the foetus. When the foetus has a medical condition that prevents it from developing fully or is physically or mentally disabled. When the parents are not financially prepared to bring up a baby or pregnancy without wedlock. Issues related to husband or partner for eg. Having disease like HIV AIDS, etc. might affect the baby. If the parents are not mature enough to nurture a child or underage. The desire to give better care and attention to existing children and not willing to have another child. If the pregnancy is result of sexual assault or rape.

ABORTION LAWS IN INDIA

The Indian Penal Code 1860 which is the basic criminal law of the country keeping in view the religious, moral, social and ethical background of the Indian community has made induced abortion a criminal offence under sections 312 to 316 of IPC 1860.

Sec 312 of IPC 1860 relates to unlawful termination of pregnancy.[11] Here under IPC 1860, the framers of the code have not used the word ‘abortion’. The ‘miscarriage’ and ‘unborn child’ has also not been defined in the code. But by legal interpretation we will find that voluntary. causing miscarriage stands for criminal abortion and which is an offence under the code. Sec 312 make voluntary causing miscarriage an offence in two circumstances when a woman is ‘with child’ (which means as soon as gestation begins) and when she is ‘quick with child’ (motion of the fetus is felt by the mother). Sec 312 permits termination of pregnancy in order to protect the life of the mother. The unborn child must not be destroyed unless the destruction of the child is for the purpose of preserving the life of the woman. The provision criminalizes abortion and permits abortion only on medical grounds in order to protect the life of the mother.[12]

MEDICAL TERMINATION OF PREGNANCY ACT, 1971

Under the MTP Act 1971, termination of pregnancy can only be done in good faith by registered medical practitioners and in such places as it is required by this act and it permits the termination of pregnancy up to 12 weeks and the opinion of more than two medical practitioners is required if termination of pregnancy is done between 12 and 20 week because of the many reasons’.[13]

Earlier, either voluntarily or involuntarily aborting a child was prohibited. Abortion was also not legalized until the Roe v. Wade (1973) ruling. Under this judgement, termination of pregnancy was also recognized as one of the fundamental rights and a component of the Right to Privacy. The Court ruled that a woman’s right to terminate a pregnancy during the first trimester cannot be restricted by the State. It was also stated that a woman’s biological and emotional health are both important, and the government can control such abortions during the second trimester. The freedom to have an abortion is seen as a fundamental human right.[14]

On June 24, 2022, the Supreme Court of the United States of America overturned the earlier decision in the case of Dobbs v. Jackson Women’s Health Organisation(2022). However, the Apex Court also faced huge backlash for its decision by numerous organisations, renowned personalities like Michelle Obama, as well as ordinary citizens who are pleading that it is an infringement of the fundamental right to their bodies.[15]

In the case of Suchita Shrivastava v. Chandigarh Administration[16], the Supreme court held that “There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.”

 

CONCLUSION & SUGGESTIONS

According to Faye Wattleton, a renowned American nurse-

“Reproductive freedom is critical to a whole range of issues. If we cannot take charge of this most personal aspect of our lives, we cannot take care of anything. It should not be seen as a privilege or as a benefit, but a fundamental human right.” The issue of abortion should be dealt in India with a female perspective and the abortion laws should be liberal and any law relating to abolition of abortion is nothing but a clear violation of a woman’s right. It violates women’s rights to health, right to dignity, right liberty, and right to privacy. Abortion must be legally permitted in order to protect the most basic rights of women. A woman has a right to choose to have abortion and her right prevails over the right of an unborn.

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WRITTEN BY PRATIKSHYA P. BEURA

[1]The Johns Hopkins Manual of Gynecology and Obstetrics (4 ed.). Lippincott Williams & Wilkins. 2012. pp. 438–439. ISBN 9781451148015. Archived from the original on 10 September 2017.

[2] Unintended pregnancy and abortion by income, region, and the legal status of abortion: estimates from a comprehensive model for 1990–2019.

[3] Global, regional, and subregional classification of abortions by safety, 2010–14: estimates from a Bayesian hierarchical model. The Lancet. 2017 Sep.

[4]“Thousand-year-old depictions of massage abortion”. The Journal of Family Planning and Reproductive Health Care.

[5] Lohr PA, Fjerstad M, Desilva U, Lyus R (2014). “Abortion”. BMJ.

[6]Hexa health, https://www.hexahealth.com/blog/types-of-abortion-procedures#Types-Of-Abortions, last visited 9^th April,2023

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10]  “7 FAM 1470 Documenting Stillbirth (Fetal Death)”. United States Department of State. 18 February 2011

[11] S.312 defines the offence of causing miscarriage as follows “whoever voluntarily causes a woman with child to miscarry shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman be punished with imprisonment of either description for a term which may extend to 3 yrs, or with fine or with both and if the woman be quick with child shall be punished either imprisonment of either description for a term which may extend to 7 yrs, and shall be liable to fine”

[12]  Understanding of right to abortion under Indian constitution, Manupatra

[13] . A risk to life of a pregnant woman, or

 

1. A risk of grave injury to her physical or mental health, or

 

III. If the pregnancy is caused by rape, or

 

1. There is an existence of substantial risk that if the child is born, it would suffer from some physical or mental abnormalities so as to be seriously handicapped, or
2. Failure of any contraceptives

 

1. Risk to the health of the pregnant woman by reason of her actual or reasonably foreseeable environment.

 

Before terminating the pregnancy consent of the following persons are required under MTP Act”.

 

1. If married – her own consent

 

1. If unmarried and above 18yrs – her own consent

 

iii. Below 18 yrs – written consent of her guardian

 

1. A mentally ill woman – written consent of her guardian.

[14]  Blogipleaders, https://blog.ipleaders.in/medical-termination-of-pregnancy-act/ last visited 10^th April 10, 2023

 

[15] Ibid.

 

[16]Suchita Shrivastava v. Chandigarh Administration, S.L.P. (C) No. 17985 of 2009