December 6, 2021

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Is there a need to amend the Abortion Act to provide adequate protection to rights of the father

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This article is written by  Ishan Arun Mudbidri, from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article talks about the Abortion Act in India and whether there is a need to provide adequate protection to the rights of a father in an abortion.

Table of Contents

Abortion in India is a sensitive issue. It was not accepted by society in ancient times. However as times have changed, the practice of abortion is being recognized and accepted in society. In the various legal frameworks enacted in India, the rights of the father in abortion are although mentioned, not rightly protected. This article emphasizes the Abortion Act in India and also examines the provisions for the rights of the father in the process of an abortion.

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Abortion in India is a debate that is going on for a long time. Every person seemed to have conflicting views about abortion. These views were a mix of an individual’s beliefs, and the values imbibed in him/her by the society. These views were changed by the landmark Roe v Wade (1973) case. In this case, it was held by the USA’s Supreme Court that a pregnant woman has the right to choose for abortion, and no external intervention can take this right away from her. Before this judgment, in India abortion was criminalized during the British era under the Indian Penal Code 1860 and the Criminal Procedure Code 1898. In 1964, the Shah Committee was appointed by the Union Government. This Committee recommended that the practice of abortion should be made legal in India. This recommendation was made, keeping in mind the safety and security of pregnant women in India.

The Medical Termination of Pregnancy Act 1971

Considering the recommendations set forth by the Shah Committee, the Medical Termination of Pregnancy Act was enacted in 1971. According to Section 2 sub-section (2) clause (e) of the Act, the term abortion means, a medical termination of pregnancy in India, which is done either by medical abortion or surgical abortion, depending on how many weeks the woman is pregnant. If the woman is pregnant for seven weeks, then she can go through a medical abortion, and if she is pregnant for more than seven weeks and wishes to go for an abortion, she can do so by the method of surgical abortion. The Act consists of eight Sections, all aiming at the welfare of pregnant women. The Act allows women to terminate unwanted pregnancy for a period of up to 20 weeks of pregnancy, according to Section 3 sub-section (2) clause (a). Further, Section 3 sub-section (2) clause (b) of the Act, directs the woman to get a doctor’s approval if the pregnancy is more than 12 weeks. The grounds for termination of pregnancy include the risk of injury to the physical and mental health of the woman if the pregnancy is from a sexual offence like rape, intercourse with a mentally challenged woman, or if there is a substantial risk to the health of the child. 

The Medical Termination of Pregnancy Rules were enacted in 1975. These rules stated the criteria and laid down the procedures for approval of an abortion facility, procedures for acquiring consent, and maintaining confidentiality.

After the establishment of this Act, there was an increase in the number of abortions done. However, the abortions center and facilities that were not approved were assumed to be unsafe. Hence there was a need to increase the number of approved abortion facilities.

The Medical Termination of Pregnancy(Amendment) Act, 2021

After legalizing abortion in 1971, the Indian Government was committed to bringing more reforms and policies in the context of abortion. The Parliament passed its first Amendment to the 1971 Abortion Act in 2002. The main objective of this amendment was to set up more approved abortion facilities and to reduce the corruption going on for approval of these facilities. This Amendment decentralized the regulations on all the abortion facilities in India which were approved by the state and district committees.

Further, another important amendment was made to the 1971 Act in the year 2021. According to the Medical Termination of Pregnancy Amendment Bill 2021, the time period within which abortion could be carried out was increased. The new Amendment allowed abortion on the approval of one doctor up to 20 weeks, and in certain circumstances on the approval of two doctors between 20 and 24 weeks. In case of contraceptive failure also, the bill allows women to undergo an abortion. Further, the bill directs the State and Union Territory Governments to set up a medical board. This Board will decide whether the pregnancy can be terminated after 24 weeks due to abnormalities. A few months back, in April, the Indian Parliament passed this act.

The Indian Government’s stand on the legalization of abortion has increased over the last few years. Enacting various amendments to the already existing laws and other new policies shows the commitment of the government in the context of protection of women wanting to undergo an abortion. In this new Amendment, the gestation time period for abortions has been increased to 24 weeks from the previous limit of 20 weeks. This time limit, however, applies to only special categories of pregnant women such as rape victims or incest survivors. This special category of abortion also requires approval from two recognized doctors. Further, there is no upper limit for abortion in case of foetal abnormalities.

Despite all these various changes being enacted in the abortion law, many people are of the view that these changes are not granting women, complete control over their reproductive choices.

In an abortion, the rights of the mother are very noticeable and acknowledged, however, the father’s rights go unnoticed. This is the scenario not just in India, but also around the world. The most common instances of fathers getting involved in the abortion process are when the mother wants the abortion and the father doesn’t, or when the mother wants to abort early and the father wants to delay the process, and vice-versa. In America, the courts have been of the strong view that, the rights of the women and the rights of the men in an abortion, cannot be considered the same, and that the women don’t need permission from their husbands to undergo an abortion. However, these views differ from country to country. In China, a law was enacted which considered the rights of the father and the mother in abortion, to be equal.

Some of the rights of the father that might raise conflicting views 

Courts around the world, have considered the rights of the father in an abortion secondary to that of the mother’s right. The following are some of the rights which the father may have in an abortion:

Consent of the father

A father’s consent is not required for abortion in most countries. This is because the mother gets more affected by the pregnancy and she has her right to privacy. According to most of the courts in the world, since the woman carries the pregnancy, the father should not have any opinion of whether to go for abortion or not.

Is it necessary to notify the father about abortion

If the father’s consent is not necessary, then is it necessary to let the father know about the particular abortion? In the case of Planned Parenthood v Casey(1992), the court observed that notifying the husband about the abortion might lay a burden on the pregnant wife. This is because, if the wife has not taken the consent of the husband and notifies him about the abortion, then she might be risking her safety. Therefore, according to the majority of the courts around the world, it is not necessary to notify the husband about the abortion.

Financial obligations on the father who wants to remain childless

If a father wants his wife to abort, but the wife doesn’t want to, is the father liable to financially provide for the needs of the child despite wanting to remain childless? 

Paternal rights activists who raise the issue of financial abortions state that the fathers should have the right to choose whether to support the child or remain childless. The right to financial abortion will mean that the wife will have to notify the husband about her pregnancy, and then the father can decide to take responsibility for the child or if he does not want to be a father. As of now, there is no provision anywhere in the world, where financial abortion is a legal right.

Agreements between the partners

There is a provision stating that a husband, who is ready to become a father, can enter into an agreement with the mother of the child, outside the legal jurisdiction. Similarly, if the person does not want to be a father and take responsibility for the child, then he can again enter into an informal agreement with the mother of the child.

As mentioned above, the father can have rights in abortion but, they are not yet being implemented in many countries. In India also, the mother’s rights in abortion are considered to be primary, and there are no rights that the father gets.

Anil Kumar Malhotra v. Ajay Pashricha

In Anil Kumar Malhotra v Ajay Pashricha (2017), the Supreme Court addressed the issue of whether the husband/father’s consent to abortion has any relevance. In this case, the husband had filed a suit and claimed damages from his wife for terminating her pregnancy, without taking his consent. The man had further argued that the termination of pregnancy done by his wife was illegal as mentioned under the provisions of the Medical Termination of Pregnancy Act 1971. The Supreme Court examined the case and dismissed the appeal filed by the husband.

This judgment was in response to an observation by the Punjab and Haryana High Court in 2011. The Court had observed that Section 3(4) of the Medical Termination of Pregnancy Act 1971, tells us that only the woman who is going to terminate her pregnancy has to give her consent for abortion. The Court further observed that the woman has given her consent for sex with the person, which doesn’t mean that the woman has given her consent to abort the child. The Court made its decision by observing that it is the pregnant woman who carries the pregnancy and hence, the decision to abort should only be her right. The Supreme Court in its 2017 judgment, upheld the observations made by the Punjab and Haryana High Court in 2011.

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The way forward for India

The above case law justifies that women have a right to make their own choices when it comes to abortion. In another judgment of the Supreme Court, in the case of Suchita Shrivastava v Chandigarh (2009), it was observed that a woman’s right to make reproductive choices, comes under the ambit of Article 21 of the Constitution, which talks about personal liberty. Hence, from various instances, the courts in India, have proved that pregnant women should decide whether to undergo an abortion or not. To a much greater extent, this seems to be true as, if the husbands get the right to abortion, then it will be a violation of the rights of women. It is women who carry the child inside their stomach and undergo so much pain and struggle for around 9 months. So giving someone else the right to decide for the child seems unfair. Paternal rights activists around the world, argue on how the abortion laws should consider fatherhood in abortion. However, there seems to be no change. The laws in India too have been very stringent and just, only considering a mother’s rights in abortion to be the primary motive. However, in the context of paternal rights, one thing can be done. The fathers should be given the choice of whether to take responsibility for the child or not. This should not be implemented as an amendment but, it can be a choice given to the fathers.

The Indian situation on abortions has improved significantly in the last few decades. Women have eventually been ensured of their rights in abortion. However, there seems to be no mention of fatherhood in an abortion. The fathers’ rights are not considered a primary objective when it comes to abortion. Conflicting views around India and the world might state this as fair, but the Constitution of India guarantees equality as a basic human right, so minor changes in favor of fathers’ rights seem to be a fair bid.


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