Devkaran Singh Nandawat, BBA LLB, Christ (Deemed To Be University), Bangalore
ABSTRACT
Women and girls constitute one of the most vulnerable sections of the society. Their care and protection have emerged as a precedence for the Government of India. Within this realm of protection, the Medical Termination of Pregnancy Act, 1971 was enacted to liberalise access to abortion, and to provide access to safe abortion services. Abortion is not merely a medico-technical issue, but a fulcrum (focal point) of a broader ideological struggle in which the very meaning of family, motherhood and women’s sexuality are challenged. In 2021, the Parliament enacted the Medical Termination of Pregnancy (Amendment) Act, 2021 through which it amended various parts of the MTP Act. However, the insertion of Section 5A in the amended Act penalises medical practitioners who fail to protect the privacy and confidentiality of women and adolescents who wish to terminate their pregnancy. Contrary to this Section 19 of the POCSO Act, 2012 mandates that if a minor conceives, even through consensual sex, and wants to abort, the matter has to be reported to the local police. The requirement to mandatorily report not only poses a dilemma for service providers who must choose between their statutory obligation to report to the police and their ethical duty of confidentiality as medical professionals, but also creates a lot of confusion which adversely impacts the access to safe abortion. Thus, there is a lot of grey area and a conflict between the MTP and the POCSO Act. This research paper aims to understand and analyse whether and how these conflicting laws operate as barriers to accessing safe abortion. Legalising abortion is consistent with the Utilitarian Philosophy. Jeremy Bentham propounded the idea of utility based moral theory. According to Jeremy Bentham’s theory of utilitarianism – greatest good for greatest number, what matters is the outcome and consequences of one’s actions, and not the actions itself. Thus, this theory is applicable in cases of adolescent pregnancies and abortion.
Keywords – Abortion, Adolescents, Conflict, Legal barriers, Medical practitioners, Medical Termination of Pregnancy Act, Protection of Children from Sexual Offences Act (POCSO Act).
