LITERATURE REVIEW

The Medical Termination of Pregnancy Act, 1971 (MTP) is one of the most liberal reproductive laws in the world as it allows termination of pregnancy up to 24 weeks and beyond (in special cases). It aims to make abortion more accessible for all Indian women. Yet the MTP is not without its fair share of problems.  The legislation still predominantly places decision-making power in the hands of medical practitioners, rather than empowering women to make autonomous choices about their bodies and reproductive health(Narayan, 2024). The stated paper talks about the problems still prevalent in the MTP by drawing focus on the fact that a major part of the option to avail an abortion is still in the hands of a doctor. This is because in India, people often look down on abortion, and sometimes even doctors discourage it for moral reasons.

They might counsel women to contribute to their pregnancy, overlooking the women’s right to make major decisions regarding their bodies. The law about abortion, called the MTP Act, mostly favors doctors and puts a technical team without any connection to the pregnancy in charge. This team even has the power to overrule a woman’s decision. The paper also discusses the need to consider unmarried women as a part of MTP under the Rule 3B of MTP. Another problem with the MTP is its overlapping nature with the Protection of Children from Sexual Offences (POCSO) Act. Legal ambiguities around the joint interpretation of the POCSO Act and the MTP Act show how a prohibitive environment is created around adolescent abortion, centred around state surveillance and punishment(Jain, 2024). The paper brings to focus how the POCSO Act is acting as a barrier to avail safe abortion services for adolescent girls and could also potentially lead to an increase in false rape allegations. Prosecuting adolescents for rape who are in consensual relationships with pregnant persons is a fallout of the carceral approach of the POCSO Act to address instances or apprehensions of sexual offenses against children. Further, the mandatory reporting provision under POCSO creates a surveillance structure even amongst healthcare institutions, resulting in pregnant adolescents running the risk of their consensual sexual partners being prosecuted for rape if they visit safe abortion providers(Jain, 2024). This can lead to higher cases of unsafe abortions.

The following paper looks at abortion with a more comprehensive view by studying the problem of unsafe abortions in the country and why they happen and then analysing the drawbacks of the MTP Act which is leading to higher cases of unsafe abortion in the country. These drawbacks range from the violation of Article 14, the problems with writ, ignorance of transgender people, and the overlapping nature with the POCSO Act. The paper also brings light into how the concept of abortion is leading to the exploitation of sex trafficked women and how the MTP fails to recognize that.

ABSTRACT

The choice of an abortion empowers women as it allows them to have autonomy over their bodies. Motherhood can have a severe impact on physical and mental health, career, their bodies, etc. With the advent of the amendments made in the Medical Termination of Pregnancy(MTP) Act abortion has been made more enabling to women. In a recent ruling, the Supreme Court allowed the termination of a fetus of 30 weeks, to a 14 year old victim of sexual assault. This judgement is a milestone in terms of reproductive rights. Even the gestation period for abortion has been increased to 24 weeks upon the consultation of two doctors. It has been made more inclusive even for unmarried women. It is a stepping stone for change but there is a long way to go before abortion becomes a human right. Women might have the legal right for an abortion but the ground reality is disheartening.

Even after having legal rights and some of the most liberal abortion laws in the world, almost 67% of all abortions in India are unsafe. These statistics goes on to throw light on the ground reality of conditions. The social framework is still very patriarchal and does not allow women to have a choice. Their consent to abortion is almost diminished and is often dominated by the say of their husband and mother in laws. At the same time, there are financial restraints, especially in rural areas. Buying contraceptives is not something everyone is aware of  and willing to do. There is hence an economic and social barrier to safe abortions. The public healthcare sector is not of much use either. 75% of the country’s health infrastructure and resources exist in urban areas where only 27% of the population lives. At the same time in the public healthcare environment, 32% reported the ability to perform an abortion compared to 100% among private centres, while 18% of public centres and 77% of private centres had performed an abortion in the last 3 months. The condition is disheartening for women whose conditions force them to access public health care services.

Thus there is no infrastructural backbone to provide access and hence support the legalisation. Moreover, the MTP Act itself has many loopholes. The Act indirectly punishes doctors and pregnant women thus criminalising abortion. In such a carnal legal system doctors would be scared to perform abortion services as they fear jail and prosecution. The MTP Act is also highly intertwined with the Protection of Children from Sexual Offences (POCSO) Act which further complicates abortions. Due to the fear of being prosecuted under the POCSO Act doctors are skeptical about performing abortion on adolescent girls. Lastly, the paper discusses how the sex trafficking market is still sustained in India and continues to exploit and violate women. Sex trafficking has defeated the purpose of abortion being a choice for women. As women are coerced through violence to undergo an abortion. Moreover sex selective abortions further propagate the market of sex trafficking.

Click Here To Download The Paper