Pregnancy termination was unlawful in India before the 1970s; it was only with the implementation of the MTP Act, of 1971, that medical termination of pregnancy became permissible, albeit only under certain specifically stated criteria. Aside from that, the Indian Penal Code of 1860 is the first legislation to include abortion provisions.
Abortion has now been recognized as a fundamental right under Article 21 of the Constitution, thanks to the passage of time and the formation of legal precedents. In addition, several judicial rulings demonstrate that the right to refuse forced abortion is protected by Article 14 of the Indian Constitution.
Medical Termination of Pregnancy Amendment Act, 2021
The Parliament enacted this new Amendment Act of 2021 in response to the inadequacy of the current abortion provision as a result of scientific and technological advancements. The new amendment has made significant modifications to abortion regulations, such as allowing abortions to go longer than 20 weeks in some situations, requiring the opinion of a certified medical practitioner, establishing a medical board for these concerns, and so on.
The Act of 2021 added two new definitions to Section 2,' medical board' in Section 2(aa) and 'termination of pregnancy' in Clause (e). The term medical board' refers to the committee or board established under Section 3(2C), whereas 'termination of pregnancy' refers to the surgical or medical treatment performed to end the pregnancy.
Section 3 (2C) of the Act also establishes and appoints a medical board.
Section 3 (2B) was added, stating that the clause limiting pregnancy termination will not apply if the fetus has significant fetal abnormalities, as advised by the medical board.
According to Section 3(2D), the medical board will be made up of a gynecologist, a pediatrician, a radiologist, or a sociologist, as well as any additional members designated by the government by notification.
A new clause, Section 5A, was added, which requires the registered medical practitioner not to divulge the information of the lady receiving the abortion. The Section also has an exception, which provides that if necessary, the information might be supplied to a person authorized under any law in place at the time.
Landmark Judgments on Abortion Law
Nand Kishore Sharma and Ors. v. Union of India (2005): While dismissing the petition, the Court found the challenged provisions, provisions 3(2)(a) and (b) of the MTP Act, as well as Explanations I and II in Section 3, to be lawful. It emphasized the purpose of the MTP Act, claiming that it was established to make abortion regulations as strict and effective as possible. These measures were not intended to allow for the outright termination of a pregnancy.
Suchita Srivastava and anr. v. Chandigarh Administration (2009): The Supreme Court overturned the High Court's decision, ruling that because Section 3 of the MTP Act requires the pregnant woman's agreement, it would be wrong to forcibly terminate the pregnancy.
Devika Biswas v. Union of India (2016): The Supreme Court, after adjudicating and examining all of the facts, ruled that such a sterilization practice violates Article 21, implying that a person has a right to reproductive choice, which is covered by Article 21.
Meera Santosh Pal v. Union of India (2017): The Supreme Court found in favor of the petitioner, citing the Suchita Shrivasta case as evidence that a woman's decision is protected by Article 21 of the constitution. The Court emphasized the importance of a woman's permission in both termination and continuation of pregnancy.
Minor R The Mother H v. State Of Nct Of Delhi & Anr. (2023): The Delhi High Court granted the minor's request to terminate her pregnancy. It also published recommendations for rape and sexual assault cases in which the victim's pregnancy lasts more than 24 weeks. The Court has given the following guidelines:
Mandatory 'urine pregnancy test' for sexual assault or rape victims during a medical examination.
If a significant victim is discovered to be pregnant as a result of sexual assault or rape and expresses a desire to abort the pregnancy, the investigating officer must present her to the medical board on the same day.
The Court further ordered the government to guarantee that the requirements of the MTP Act are adequately implemented.
In the case of a juvenile victim who is pregnant, she must be brought before the medical board with her legal guardian's authorization for both the pregnancy and the abortion.
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