Abortion laws take a progressive turn, but challenges remain

India abortion laws
The stigma associated with sexual relations and pregnancy before marriage may negate India’s advantage of having progressive abortion laws.

India will see sweeping changes to abortion laws that will bring within its ambit abortion access to unmarried women, transgenders and even survivors of marital rape. In its judgement, the Supreme Court also offered stirring defence of a woman’s right to choose whether or not to terminate her pregnancy. The historic decision is laudable considering how developed countries such as the United States have far conservative laws regulating abortion rights.

India has one of the highest rates of unsafe abortions in the world. According to a recent UN report, 67% of abortions in India are unsafe. Eight women die each day due to unsafe abortions which is the third most common cause of maternal mortality in the country. Also, one in every seven unintended pregnancies in the world occur in India, but only 3% of all pregnancies resulted in abortions.

The ruling has five key aspects, making it a significant step forward for abortion rights in India. While under the previous MTP Act, the right to terminate a pregnancy was in the hands of the doctor. The decision to have or not to have an abortion has now been accorded to pregnant women.

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In its ruling, the SC said that the decision to abort is borne out of complicated life circumstances, and only the woman should be able to choose without external interference or influence. The SC also spoke for reproductive autonomy which requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion. The apex court emphasised that this should be accorded without any need for consent or authorisation from a third party.

Further, the ruling also emphasised that it is the woman alone who has the right over her body and is the ultimate decision-maker on the said question. The judgement has made a historic move giving women autonomy not only over their bodies, but also over their lives. Contraceptive failure is now also a valid reason for a woman or her partner to seek an abortion. This essentially means unmarried women are also included in the ambit of law.

With the latest ruling, a due recognition of marital rape has also been done. While the country does not acknowledge rape within the institution of marriage and there are dual thoughts on the same, the Supreme Court has recognised the reality of marital rape. The court said that survivors of such violence must be included in those allowed to seek abortions up to 24 weeks and noted that it is not inconceivable that married women become pregnant as a result of their husbands having raped them.

The Supreme Court had also recognised abortion rights as a facet of the right to privacy guaranteed under Article 21. The precedent was set in the landmark 2017 Puttaswamy judgement. An earlier 2009 ruling had also held that a woman’s right to make reproductive choices is a part and parcel of personal liberty guaranteed by the same Article.

Abortion laws in the US

India’s move marks a positive shift at a time when the abortion rights of women continue to be a point of contention across the globe. The Supreme Court ruling comes hot on the heels of the US Supreme Court’s decision to overturn the historic 1973 Roe v Wade decision in a 6-3 decision that made abortion a constitutional right in the country.

The decision has transformed the lives of women in America as it has imposed near-total ban on abortion in about 26 states. Women seeking abortions are now increasingly subject to criminal penalties in several states. Several celebrities had expressed concern over the decision and called it a major setback to women’s rights.

MTP Act and abortion rights

Before the recent ruling, the MTP Act had legalised abortion for select exceptions in India. In 1964, the government had set up the Shantilal Shah committee which recommended legalising abortion. However, the same didn’t materialise until 1971 when the Medical Termination of Pregnancy Act was finally passed. The exceptions included- pregnancy involving a risk to the life of the pregnant woman, or cause grave injury to her physical or mental health, possibility of a substantial risk of physical or mental deficiencies if the child is born, pregnancies caused by rape, and pregnancy due to contraceptive failure in a married woman or her husband.

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However, no provision for unmarried women to get an abortion for contraceptive failure was accorded. With the latest ruling, the SC said that there was an artificial distinction between married and unmarried women and the past law perpetuated the stereotype and socially held notion that only married women indulge in sexual intercourse.

The theory and practice are two different things as far as new laws are concerned. There would be a wide gap between the two. This is worrying in a country which looks down upon sexual intercourse before marriage. Also, most gynaecologists still have a patriarchal mindset. An abortion law in the country does not mean all gynaecologists are pro-choice. The stigma associated with pregnancy before marriage is not just confined to the society at large, but is also prevalent among doctors who humiliate unmarried women approaching them. So, it will be long before safe abortion actually becomes a reality in India even though the Supreme Court has done its part.

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