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LATEST NEWS UPDATES | India's Abortion Laws Need to Change and in the Pro-Choice Direction -Saumya Rai and Sajid Sheikh

India's Abortion Laws Need to Change and in the Pro-Choice Direction -Saumya Rai and Sajid Sheikh

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published Published on May 15, 2017   modified Modified on May 15, 2017
-TheWire.in

Irrespective of the marital status of women, access to safe abortion services and quality post-abortion care, including counselling, need to be legally guaranteed.

On February 28, 2017, the Supreme Court refused to allow a woman to abort her 26-week-old foetus that would be born with Down syndrome, a congenital disorder that postpones the onset of developmental and intellectual features. Admitting that the child may suffer from physical and mental abnormalities, the bench said that their hands are tied by law.

In May 2017, the apex court denied a plea to abort another 26-week-old foetus, made by a 35-year-old HIV-positive woman who had been sexually assaulted. The court cited a report prepared by a doctor at the All India Institute of Medical Sciences (AIIMS). The report claimed that an abortion at such a stage could endanger the mother’s life. The court noted that the cumbersome legal battle had resulted in delaying the relief that the 35-year-old woman had sought.

The law in question is the Medical Termination of Pregnancy (MTP) Act, 1971, which is awaiting amendment.

Abortion leads to legal, moral and ethical dilemmas. Multifarious issues crop up relating to genetics, medicine, sexuality, jurisprudence, reproductive rights, as well as the foetus’s right to life. The battle is between pro-life supporters – who condemn abortions considering the death of an unborn child a social death – and pro-choice supporters, who believe that women should be in total control of her reproductive life and nobody, not even the state, has the right to tell her what to do.

The present law

The legality argument is impractical because the law is clear. In India, under the MTP Act, abortion is a qualified right. An abortion can’t be performed based solely on a woman’s request. And it can only be performed by a registered medical practitioner before 12 weeks of pregnancy. In case the woman had been pregnant for more than 12 weeks – but for less than 20 weeks – the opinions of two medical practitioners are required.

However, the underlying condition remains: an abortion is permitted only if continuing the pregnancy poses a ‘substantial risk’ to the woman’s life or to her ‘physical or mental health’. Alternatively, if the child that is yet to be born faces similar substantial risk – in that it would suffer from ‘physical or mental abnormalities’ or may be ‘seriously handicapped’ – an abortion may be allowed.

In case of pregnancies caused by rape, or a failure of birth control (for married women), the risk to their mental health is admissible grounds for abortion. The premise of keeping the window for abortion open only until 20 weeks is that, generally, abnormalities can be detected by that time. However, some rare congenital diseases can be detected only after 20 weeks; this can potentially put both the lives of the mother and the child at risk.

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TheWire.in, 11 May, 2017, https://thewire.in/134182/abortion-pregnancy-law-india/


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