A Minor’s Perspective on Abortion

Recently, the Supreme Court emphasized the importance of considering a minor’s perspective in decisions regarding abortion in a case where it recalled its previous order permitting an abortion by a 14 year old rape survivor.  In this Weekly, let’s understand the legal framework, precedents and  implications,of decisions related to abortions. 

Legal Framework:

The Medical Termination of Pregnancy (MTP) Act, 1971, amended in 2021 is the principal law governing abortion in India. It does not specifically address the issue of minors seeking abortion. The Supreme Court has been instrumental in addressing the rights of minors in reproductive health matters through judicial interpretation and precedents.

In XYZ v. Union of India (2017), the apex court held that the Medical Board should consider  the autonomy of minors in reproductive choices to the extent possible while deciding whether an abortion can be allowed. However, it is only in the current case, that the court said that the right of a pregnant minor to make informed decisions about their bodies, including the choice to abort “ is paramount”. 

Are abortions legal in India?

Yes, abortions, or medical terminations of pregnancy, are legal in India. However, there are certain conditions prescribed for going ahead with an abortion.

While ‘abortion’ is the colloquially used term, the law refers to the process as a ‘medical termination of pregnancy’. In practice, this includes two methods – medical terminations and surgical terminations, which the World Health Organization recognizes as the two safe methods of terminating a pregnancy.

What happens in a medical abortion?

• A medical abortion is done before 9 weeks of pregnancy by administering two kinds of pills, Mifepristone and Misoprostol.
• After the doctor has conducted your ultrasound and ensured that you are eligible for a medical abortion, the first type of pill, Mifepristone, will be given to you at the clinic. This pill acts against the progesterone in your body, i.e. cuts off the nutrition to the foetus.
• The second type of pill, Misoprostol, makes your cervix soft to ensure everything comes out like a period.
• The pills must be administered within 24 to 72 hours of each other. This is different depending on which doctor you go to. They can also be taken at home.
• You must visit the doctor again after taking all the medication to check that the abortion has been successfully carried out.
• These pills are only available with a doctor’s prescription and should not be taken without consulting a doctor.
• It is also illegal for the pharmacist to sell these pills without prescription. It is a jailable offence.

What happens in surgical abortions?

• Surgical abortions are done after 9 weeks of pregnancy.
• As the name suggests, a surgical abortion is a surgical procedure that an authorised and experienced doctor conducts on you.
• In this procedure, the doctor will give you a medicine that softens your cervix along with some anesthetic or sedative. Sedation or anesthesia is used to reduce pain and/or trauma during the procedure.
• Doctors use vacuum aspiration and go in through the vagina (outside of the vulva) and suck the contents of the uterus out.
• This is a very safe procedure but it must be done by someone with experience. If inexperienced persons do this, there can be complications like infertility in the long run.

Is the Right to Abortion a Fundamental Right?

You have a fundamental right to make reproductive choices. However,  the final decision on going through with the abortion will depend upon the satisfaction of the authorised doctor.

Courts have linked the right to access abortions and other reproductive health services to the right to life and personal liberty under Article 21 of the Constitution, including the right to decisional privacy. However, doctors can only conduct an abortion if they are of the opinion that a case/request falls under one of the grounds listed in the law.

Abortion for Minors

All doctors are legally obligated to report a pregnancy of a minor in India. This is because the age of consent in India is 18 years, and a pregnancy of a woman below this age is considered a result of rape, under the Protection of Children From Sexual Offences (POCSO) Act, 2012. 

This is a mandatory requirement for all doctors, not just the ones conducting abortions. For instance, an ophthalmologist who conducted an eye exam on a pregnant minor was arrested for not reporting such a pregnancy.This duty to report applies in cases of married minors too.

When can an abortion be performed?

A woman can  terminate her pregnancy if she is:

• Up to 12 weeks pregnant, with the permission of one registered medical practitioner.
• From 12 to 20 weeks, with the permission of two registered medical practitioners.
• Post 20 weeks, registered medical practitioners can terminate a pregnancy if they deem that the abortion is necessary to save the life of the pregnant woman.

Requesting an abortion after finding out the sex of the fetus is illegal in India. The law punishes those who request such abortions as well as medical practitioners partaking in identification of sex of the fetus. The punishment for both is jail time upto three years, along with a fine up to Rs. 50,000.

What are the grounds on which permission for abortion beyond 20 weeks can be given?

For a doctor to legally terminate a pregnancy, they must believe that there is:

• A risk to the life of the pregnant woman, or grave injury to her physical or mental health.
• A significant risk that if the abortion is not carried out, the child so born would suffer from physical or mental abnormalities and be seriously handicapped.

A pregnancy is considered injurious to the woman’s mental health if it is caused by:

• Rape
• Failure of contraceptives or preventive methods. This is applicable only to unwanted pregnancies of married women. Presently, there is a Bill pending before Parliament that seeks to make this provision available to both married and unmarried women. Until then, this presumption only applies to married women.

The doctor will consider the pregnant woman’s actual and reasonably foreseeable environment while deciding whether continuation of a pregnancy would affect her mental or physical health.

In the current case, a rape survivor had initially sought abortion despite the gestation period exceeding the legal limit of 20 weeks, which the Supreme Courrt granted earlier. However, the minor and her parents had approached the court wishing to now carry the pregnancy to term. The Supreme Court allowed this. It reiterated that while parental consent is important, it should not override the minor’s views and wishes. While challenges remain in ensuring access to safe and legal abortion services for minors, efforts to improve awareness and healthcare facilities are crucial in empowering minors to make informed choices about their bodies and health.

To know more about the laws that govern safe abortions in India, read our Guide here.