Pratibha Malik & Tanya Singh, Assistant Professor(s), Faculty of Legal Studies, Motherhood University, Roorkee
ABSTRACT
Reproductive rights are basic human rights. The right to health, which has been stated and assured by both the Committee on Economic, Social and Cultural Rights and the Committee on CEDAW, gives legality to women's reproductive and sexual rights. As a result of this recognition, states must respect these rights and incorporate them into their domestic laws to give them force. While these conventions confirm women’s rights to reproductive choices, there has existed an intense debate on the extent to which women can access such right to get an abortion. Herein, an attempt has been made to analyze the current position on abortion rights to women in Northern Ireland and India.
In India, it has been observed that the Medical Termination of Pregnancy Act 1971permits abortion up to 20 weeks after which a court order is required, which is given only in exceptional circumstances, notably when the mother's life is at risk. After 20 weeks, the Act prohibits abortion simply based on the mother's mental health or her decision not to have more children and/or her desire to space out the years of her children in a specific manner, as required by the ICESCR and CEDAW, respectively. This is seen as a clear violation of a woman’s autonomy over her body. To overcome certain challenges to the MTP Act, 1971, a bill was introduced in the year 2018 which proposed to increase the time limit to get an abortion without the court’s involvement from 20 weeks to 24 weeks and up to 27 weeks for rape survivors. In furtherance of the same, the act was amended in 2021 which increased the gestation period from 20 weeks to 24 weeks for some categories of women and also included some major changes in the Act and its reflection can be seen in various judgments of Indian court. However, despite the new amendment, there exist certain loopholes in the existing law such as the act provides for a conditional right and not an absolute right to women. Further, it is being observed that the increase in gestation period to 24 weeks is only available to certain categories of women and not all.
Keyword: Abortion, body autonomy, Medical Termination of Pregnancy Act, CEDAW, ICESCR, Disability Rights, MTP Amendment Act, 2021
