Is 'Abortion' legal in India?
We all know how killing one human being by another is a crime. Have you ever wondered if that points to a born or an unborn human being? Can we kill someone who is not yet born into this world? Will that too be considered as a crime. You shall get all your answers in the next 4 minutes. In this blog post, we shall know if ‘abortion’ or ‘termination of pregnancy’ can be done legally and if yes, under what special circumstances.
Abortion means killing of the foetus(unborn baby) in the womb of his/her mother itself. It is also known as ‘termination of pregnancy’ which simply means ending a pregnancy by killing the unborn inside. Let me start by stating that abortion is not illegal. It surely is legal in India since 1971. The Medical Termination of Pregnancy Act, 1971, is the law responsible for the regulation of abortion. However, there are many conditions to it, also your physical ability to get an abortion done depends on the advice and opinion of the doctor. However, legally, it can only be performed up to 20 weeks of conception.
Is it a legal right of every woman in India?
A woman may wish to abort, but only her doctor shall decide it. It is solely at the discretion of the doctor that a woman may or may not undergo an abortion. It is not right that every woman can exercise solely by her decision. Also,
1. if the abortion is to take place within the first trimester (up to 12 weeks of conception), the woman only needs permission from one doctor, but
2. if she exceeds the 12-week bar (from 12 to 20 weeks), she needs permission from two doctors.
Under what conditions can abortion be done legally?
1. If continuation of the pregnancy poses any risks to the life of the mother or to her physical or mental health.
2. If the foetus has or will have any severe abnormalities(both physically or mentally)
3. If pregnancy occurred as a result of the failure of contraception (but this is only applicable to married women wanted to limit the number of children the couple wanted)
4. If pregnancy is a result of sexual assault or rape.
Who can conduct an abortion and where it can be done?
An abortion can be conducted only by a Registered Medical Practitioner(a person who has got registration in a State Medical Council after finishing the undergraduate medical course in a college recognised by the state government and approved by Medical Council of India). Also, according to Section.4 of the said legislation, termination of pregnancy can be done only in a hospital established or maintained by Government.
Please remember, abortion cannot be performed by any random doctor or any midwife, ay any random place, at one’s house or under a tree. That abortion is certainly categorized as a crime.
Can you get an abortion because of the sex of the foetus?
It is a crime to get an abortion because you or your family do not want a child of a particular sex. If you get an abortion after you come to know the sex of the foetus, you can be punished with jail time of up to three or seven years depending on the stage of pregnancy (Section 312 IPC 1860). However, please remember that abortion is otherwise legal (subject to conditions mentioned above) – it is abortion which follows sex-determination that is unlawful.
Do the doctors need the pregnant lady’s permission to carry out an abortion?
The doctors have a duty to get your consent in order to perform the abortion. If you are below 18 (a minor) or a person with mental illnesses, the doctors have a duty to get your guardian’s permission as well. If a doctor performs an abortion without your consent, he or she can be punished with a jail term extending up to 10 years and fine.
Is the pregnant lady’s privacy respected?
Yes, the Right to Privacy applies to abortion also. In a benchmark judgement, the Supreme Court of India said, "A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy". No registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force. Whoever does that shall be punishable with imprisonment which may extend to one year, or with fine, or with both.
Who can be punished for committing an illegal abortion and for what?
You should know that an abortion which does not fulfil the conditions is considered a crime under the general law on crimes in India.
1. Abortion of over 5-month pregnancy - If abortion takes place when you can sense the movement of the foetus, the punishment is higher. This is generally known as quickening and usually takes place between 17 and 20 weeks. Both you and your doctor can be punished with jail time of up to seven years and fine unless it was done in good faith to save your life.
2. Abortion without your consent - If anyone else forces you to have an abortion or performs one without you agreeing to it, the punishment is jail time of up to 10 years and fine.
3. Abortion resulting in death - If the patient dies because of a botched abortion or an abortion carried out by an unskilled person, the doctor who conducted the operation can be punished with jail time of up to 10 years and fine. If the abortion was conducted without the patient’s permission, the punishment is a jail for life.
4. Intentionally causing the death of a foetus can also be prosecuted under other provisions of the Indian Penal Code, 1860 under which the punishment can extend up to 10 years.