Legalizing Abortion in India[1]
All human life--from the moment of conception and through all subsequent stages--is sacred, because human life is created in the image and likeness of God. Nothing surpasses thegreatness or dignity of a human person...If a person's right to life is violated at the moment inwhich he is first conceived in his mother's womb, an indirect blow is struck also at the wholemoral order.
The Wikipedia Dictionary defines an abortion as:
An abortion is the removal or expulsion of an embryo or fetus from the uterus, resulting in, or caused by, its death. "Abortion" can refer to an induced procedure at any point during human pregnancy; it is sometimes medically defined as either miscarriage or induced termination before the point of viability. Throughout history, abortion has been induced by various methods and the moral and legal aspects of abortion are subject to intense debate in many parts of the world. Abortion became legal in India in 1971 in order to prevent overpopulation. However, this appears to have been unsuccessful as India now has 1.1 billion people and is the second most populous country in the world, after China. India was a pioneer in legalizing induced abortion, or Medical Termination of Pregnancy (MTP) in 1971. Yet, after three decades, morbidity and mortality due to unsafe abortion remain a serious problem. There is little public debate on the issue despite several national campaigns on safe motherhood. Instead, discussion on abortion has mainly centred around declining sex ratio, sex-selective abortion , and the proliferation of abortion clinics in urban areas. Adding to the problem is that abortion continues to be a sensitive, private matter, often with ethical/moral/religious connotations that sets it apart from other reproductive health-seeking behaviour. Although abortion is legal, it is estimated that four million Indian women a year still resort to illegal abortions because of social taboos, misconceptions about the law, and the lack of skilled practitioners and medical facilities.
Abortion is severely condemned in Vedic, Upanishadic, the laterpuranic(old) and smriti literatureTwo laws in India regulate the determination of the sex of the foetus and abortion. The Medical Termination of Pregnancy (MTP) Act, 1971, primarily aimed to make it possible to use abortion as a mechanism of family planning. This law stipulates that if certain conditions are fulfilled, an abortion can lawfully be done. Before this law came into existence, the Indian Penal Code (Act No 45 of 1860) permitted abortion only when it was necessary for saving the life of the woman. Abortion was being practised earlier by many. Because it was illegal, it was practised in a clandestine manner. The passing of the Act made medical termination of pregnancy legal, with certain conditions for safeguarding the health of the mother.
The MTP Act brings into focus the moral undertones of a law that discriminates against unmarried pregnant women. Laws related to abortion must also benefit persons whose sexual relationships are beyond the legitimacy conferred by law, especially when some courts have taken the view that live-in relationships are not illegal . It is unethical for a law to punish such choices by not recognising the "anguish caused by unwarranted pregnancy" to unmarried women.
The Supreme Court has said that the right to privacy is implicit in Article 21 of the Constitution and a right to abortion can be read from this right. It is submitted that a decision as to abortion may be entirely left with woman provided she is sane and attained majority. Only in cases where an abortion may affect her life, her freedom may be curtailed. A woman's body is hers and hers alone. Nobody has the right to make her do something that she does not want to. All other restrictions on the right to abortion are unwelcome. True, a woman's decision as to abortion may depend upon her physical and mental health or the potential threat to the health of the child. Apart from these reasons, there are also various important factors. She or the family may not be financially sound to welcome an addition. It may be a time when she wants to change her profession, which requires free time and hard work. Her relationship with the husband may virtually be on the verge of collapse and she may prefer not to have a child from him, for it may possibly affect a future marriage. All these factors are quite relevant and the Indian statute on abortion does not pay any respect to them. The law thus is unreasonable and could well be found to be violative of the principles of equality provided under Article 14 of the Constitution. Is it desirable to pay compensation to woman for all her physical and mental inconveniences and liabilities, which arises in that context. Finally it may be noted that the M.T.P. Act does not protect the unborn child. Any indirect protection it gains under the Act is only a by-product resulting from the protection of the woman. The rights provided as well as the restrictions imposed under the statute show that the very purpose of the state is to protect a living woman from dangers which may arise during an abortion process. It is the protection to the mother that protects the unborn.
A woman's right in this respect is doubtful because her right is dependant on certain conditions: proof of risk to her life or grave injury to her physical or mental health, substantial risk of physical or mental abnormalities to the child if born and a situation where abortion could only save her life, all to be arrived at by the medical practitioners. Can a woman request a medical practitioner to perform an abortion on the ground that she does not want a child at that time? Where the liberty of the woman is fully dependant on certain other factors, such are quest cannot be said to be just and reasonable. The M.T.P. Act also does not classify the pregnancy period so that the woman's interests and the state's interests could be given predominance in one's own spheres. It is well settled that the constitution provides for the right to live with dignity. The right of a woman to her private life has been the basis on which a number of international bodies have upheld the right of a woman to have an abortion. The right to freedom of expression and access to information has been used to argue for the right of women to receive information about abortion options. The right to access abortion may also be based on the right of a woman to decide freely and responsibly on the number and spacing of her children. This right would be severely hampered if the state obliges the birth of a person for whom his very existence is a bane rather than a boon. Eugenic grounds of abortions have been recognized by various courts and governments. The European Court of Human Rights has even granted compensation to the parents if the doctor is negligent in detecting patent deformities in the foetus and the child is born with disabilities and deformities.
In the Objects and reasons of the MTPA, the legislature has recognized eugenic grounds as one of the grounds of termination of pregnancy. But again, the impugned provisions fail to satisfy the same by restricting the time limit to 20 weeks. Further, the legislature has not prohibited use of diagnostic techniques to discover foetal disabilities. Scientific reports have suggested that some deformities in the foetus can be only detected in the very late stage of pregnancy and thus abortions should be allowed even after the 24th week of pregnancy. The IPC was enacted more than a century ago and the MTPA, in 1971. Since then, medical science and technology have come a long way. Moreover, what transpires to be the object of the legislature behind the impugned provision setting the time limit for abortion to be that of 20 weeks is to prevent female feticide as this is the time period when and where after the sex of the foetus can be successfully and accurately determined by the pre-natal diagnostic technologies. Hence it is to be given effect to in the same light and not on the analogy that eugenic grounds for abortion as provided by the act to be valid grounds of abortion under section 3 of the act also burn on the same factum of the stipulated time period, as this would absolutely and non-judiciously defeat the very purpose of legislative efforts such as the pre-natal diagnostic technologies act and the likes of the same. Hence it is perspicuous that the object of the act is to ban the use of both sex selective abortions and to regulate such techniques with a view to ensure their scientific use for which they are intended, and not to ban the very detection of such disabilities and abnormalities of the foetus, as this would defeat the very purpose of this act.
Section 312 of the Indian Penal Code read with the Medical termination of Pregnancy act, 1971 where all the restrictions imposed therein, including the time limit of 20 weeks, other than the ones to ensure good medical conditions, infringe the right to abortion and the right to health, which emanate from right to life as guaranteed by Article 21 of the Constitution. Any law forbidding an abortion under good medical conditions is immoral and in addition unconstitutional, for it violates her right to control her property - her body as wells her life, liberty and happiness.
A woman's right to terminate a pregnancy emanates from her right to make decisions regarding her own body and reproductive capacity. Textual support for this right is found in a number of human rights instruments, which contain provisions that ensure autonomy in decision-making about intimate matters. Such provisions include protections of the right to privacy, the right to decide freely and responsibly the number and spacing of one's children, and the right to physical integrity.The right of the unborn child to life must outweigh the desires of others to destroy it, whatever the basis of these desires. Arguments on morality and legality tend to collide and combine, complicating the issue at hand. Abortion debates, especially pertaining to abortion laws, are often spearheaded by advocacy groups belonging to one of two camps. Most often those in favor of legal prohibition of abortion describe themselves as pro-life while those against legal restrictions on abortion describe themselves as pro-choice. Both are used to indicate the central principles in arguments for and against abortion:
The abortion laws in the country have become a point of debate after Nikita Mehta, a Mumbai-based woman, was denied permission by a court to terminate her pregnancy after 20 weeks though the foetus was detected with a heart problem. . It's good that the MTP act will be amended in the wake of the Niketa Mehta case. If complications arise either in the mother or the child or some rare disease that the child suffers from, then the legal period needs to be increased to 24 weeks.The topic of abortion is one of the most controversial of our times. It discusses human interaction where ethics, emotions and law come together.
Human Rights are those rights, which should be available to every individual without any discrimination of any kind. Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom. The most important right of a Human is the right to life. It is the supreme human right from which no derogation is permitted. It is inalienable. The Article 6(1) of the International Covenant on Civil and Political Rights prohibit the arbitrary deprivation of life. But there are some controversial issues related to this supreme right. One such issue is the question of Right to abortion. Among other rights of women, it is believed that every mother has a right to abortion, it is a universal right. But the rights of the mother are to be balanced with the rights of the unborn.Earlier the right to abortion was not permitted and it was strongly opposed by the society. The termination of pregnancy was termed to be a murder of the fetus. But due to the change in time and technology, nowadays this right has been legally sanctioned by most of the nations after the famous decision ofRoe Vs Wadeby the US Supreme Court. But the oppositions are still present and people do believe that it should be legally prohibited.The question which is the reason for this discussion is- whether a mother has a right to abortion vis a vis the right to life of the unborn .Throughout history, induced abortions have been a source of considerable debate and controversy. An individual's personal stance on the complex ethical, moral, and legal issues has a strong relationship with the given individual's value system.
All these factors are quite relevant and the Indian statute on abortion does not pay any respect to them. The law thus is unreasonable and could well be found to be violative of the principles of equality provided under Article 14 and Article 21 of the Constitution.
In the case ofNand Kishore Sharma vs Union of India, the court had to decide the validity of the Medical Termination of Pregnancy Act. It was argued that the Act particularly Section 3(2)(a) and (b) and Explanations I and II to Section 3 of the Act as being unethical and violative of Article 21 of the Constitution of India. The court in the case had to determine when the foetus comes to life and hence if his right to life is violated by the said provisions. The court in this case refused to comment on the attribution of the status of a "person" to the fetus, however it declared that the Act is valid.
In the case ofV. Krishnan vs G. Rajan, the court held that for an abortion, though the guardian's
consent is required, the minors consent is also important and should be taken. Case laws show that the woman's consent is of the utmost importance, and no one can take this right away from her.
Hence the situation in India can be summed up as the right to abortion not being absolute as it is subject to the Sections 312-314 of the IPC, PCPNDT Act and the Sec 3 of the MTP. The consent of the husband is not required and in case of minors, the consent of minor is just as important as the guardians. Introduction of Medical Abortion in India is a landmark movement in the road to improvement of women's health. Medical abortion gives women access to pregnancy termination which is not intrusive and has little or no side effects. In a recent case, the Bombay High Court refused permission to abort a 26-week foetus with a serious heart defect after rejecting the mother's plea to terminate the pregnancy. Niketa and Haresh Mehta along with their doctor Nikhil Datar approached the court for medical termination of pregnancy after physicians had diagnosed the unborn child with a congenital disorder. Niketa was informed of this congenital heart block in the 24th week of her pregnancy.
Dismissing an application by Niketa Mehta, Bombay HC observed that medical experts did not express any "categorical opinion that if the child is born it would suffer from serious handicaps." The court noted that even if the couple had approached before 20 weeks it would not have been possible to allow abortion, as the medical opinion was contrary.
Mehta also sought an amendment to the Medical Termination of Pregnancy Act so that pregnancy can be terminated even after 20 weeks if doctors believe that the child, if born, will have serious abnormalities, so as to render it handicapped. As per the 37-year-old abortion control laws, a pregnancy can be terminated after 20 weeks only if there was a fatal risk to the mother and not the foetus. But a division bench of Justice R M S Khandeparkar and Amjad Sayed observed that they could not alter the provision.
The court took into account the opinion of a three-member panel of doctors of JJ Hospital which contradicted its earlier finding when it said there "were least chances" that the child would be born with a handicap. The panel earlier said there were "fair chances" the child would be born handicapped or incapacitated.
The petitioners had contended they wanted to abort the child since it would need a pace maker right from the time of birth and the quality of its life would be poor. The couple, who hail from a middle class background, told the court the child would need a pace maker, which costs about Rs. one lakh and which has a limited life. Changing the pace maker every five years was not even economically viable for the family. Had Niketa Mehta been a resident of US or UK, she would have in all likelihood got a judicial go-ahead to abort her fetus.
With fetal monitoring becoming more commonplace and precise in tracking abnormalities, there are a plethora of stories from across the world of desperate women pursuing the legal path.
On May 10, 2007, a mysterious Miss D only known as a 17-year-old who was living with her boyfriend —made it to the headlines in Dublin papers for winning the HC's permission to visit Britain for an abortion.The 17-year-old was told by doctors that her four-month fetus would not live more than a few days beyond its birth.
Back home, Niketa's case highlighted the need to raise the 20- week legal limit. But in Britain, which had a liberal 28-week limit in 1990 that was scaled down to 24 weeks, third trimester (after six months) abortions are not unknown.
Couples look forward to an ultrasound examination as an opportunity to meet their unborn child. That is how the health-care industry has oversold the role of ultrasound in pregnancy. The seductive ‘come and see your baby' on one hand and threatening horror stories of foetal abnormalities on the other are spread to ensure business. Once abnormality is confirmed the only option in most cases is to terminate the pregnancy. Any treatment currently available to correct foetal abnormalities before birth is at best experimental. The limit of 20 weeks puts undue pressure on the doctors making a diagnosis and on the couples making difficult choices. The haste may lead to grave mistakes, or even worse couples may choose to abort on a suggestion or a doubt, rather than wait for confirmatory tests which may take the pregnancy beyond 20 weeks. The aim of prenatal diagnosis is to prevent the birth of an abnormal child. The whole science of prenatal diagnosis is meaningless if abortion is not allowed even when gross abnormality is confirmed. Unfortunately abortion is still illegal in India under laws enacted in the 19th century. Some abortions are allowed now under the euphemistic Medical Termination of Pregnancy Act, 1971.
The Act was made to facilitate abortion for birth control, considered a national priority then, and not quite the ‘enlightened legislation' one hoped for. It does not empower women but allows medical practitioners to perform abortion whenever they want, for ‘family planning' or for money in private practice.
Foetal abnormality was considered a reason to abort in the 1971 Act but little was available then in terms of prenatal diagnosis. All techniques of prenatal diagnosis including ‘triple TEST', ultrasounds, chromosomal and DNA analysis and tests for foetal infections came much later. These are complicated and expensive tests and take weeks. In many cases, the pregnancy crosses 20 weeks by the time a diagnosis is confirmed. The limited access to health care further delays diagnosis in India. The law, however, has not been amended to accommodate these late abortions of the abnormal foetus if required.
Laws have been amended in most countries to allow late abortions since prenatal diagnostic
techniques became available. The legality tend to collide and combine, complicating the issue at hand. Abortion debates, especially pertaining to abortion laws, are often spearheaded by advocacy groups belonging to one of two camps. Most often those in favor of legal prohibition of abortion describe themselves as pro-life while those against legal restrictions on abortion describe themselves as pro-choice. Both are used to indicate the central principles in arguments for and against abortion: "Is the fetus a human being with a fundamental right to life" for pro-life advocates, and, for those who are pro-choice, "Does a woman have the right to choose whether or not to have an abortion" the legal regulations have abrogated the women's right to liberty to a great extent, particularly with respect to right to self determination,right to have control over her body and right to abortion. These regulations have created serious inroads into a women's right to life and liberty and it has become nothing more than an illusion. It is, therefore, submitted that females should be given right to have control over their body and consequently right to have or not to have child. Furthermore, the State should, instead of framing regulatory measures, concentrate an raising the status of women in society especially in the rural India and towards this end special efforts are needed for the education of women.
[1]Sonakshi Verma,B.A LL.B, 3nd year ,Ram Manohar Lohiya National Law University
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