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Realizing The Right To Abortion: A Comparative Study

Somebody has rightly estimated that "the progress of a community as a whole can only be measured by the status of their women."

The status of a woman or how well she is treated has always been of great interests not only to the historians but also to the common man.

When we think of a woman, an illusion of "a feminine figure who is soft at heart but much stronger in nature because she is majorly responsible for carrying out the legacy of the mankind" comes to our mind.

But the questions that arise consecutively are- "Does she only exist to reproduce?", "Can it be her decision not to have kids"?, "Should it be the joint decision of the partners not to have kids?" Well all these questions lead to one of the most controversial debates of all times i.e. Realising the need of right to Abortion.

Meaning of Abortion
Abortion in the simplest of words if defined is a medical operation that ends pregnancy�.

In other words, it is also known as termination of pregnancy which can either be terminated by consuming medicines or via surgical methods.

In Abortion a foetus or an embryo is taken out of the mother's uterus and is turfed out.

Abortion according to the studies are of two types:
  • Miscarriage:
    Miscarriage in simplest of word means giving birth to a baby before it is fully developed, causing its death.�
  • Or by medical operations via surgical instruments.

Should Abortion be a part of Human Right?
Human rights are those rights that are available to a human being the moment they are born. Human rights tend to be known as the birth rights of an individual. Many international organisations, private as well as government work actively to promote human rights and prevent the exploitation of other people who are oppressed either due to wars, non- developed nations or are subjected to grave violence and many other reasons.

Right to life and right to live are one of many human rights that the organisation are working for. The agenda that needs to be understood is that abortion is the birth right of a mother and she has the right to life. Statistics prove that the access to abortion helps in reducing the mortality rate of a living being. Many women die while giving birth that is actually harmful for her in the long run.

Apart from that, there have been many cases where women are subjected to multiple pregnancies irrespective of her health issues either due to the desire of a male child or due to other reasons. Right to Abortion as a human right would not only reduce the death rates of the mothers but also would prevent people from unnecessary desires.

Right to Abortion as human right would not only help the mothers to prevent them to get prone to such things but eventually would give a new and a much stronger voice to the ladies back there who either are rape survivors or are subjected to multiple pregnancies by their in-laws.

Abortion in United States of America: An Analysis
In the landmark case of Roe vs Wade, the Supreme Court of the United States of America on June 24, 1973 recognized that the Right to Liberty according to their constitution also means Right to Privacy and hence the right to decide whether to continue the pregnancy or not.

This landmark case in the history of America recognised and made Abortion absolutely legal as long as the foetus does not live outside the womb, most probably until 22-24 weeks of pregnancy. Before that in 1967, Colorado� became the first state to decriminalize abortion in cases of rape, incest or when the mother's life is at risk.

The United States which is considered to be one of most developed nations of the world where Fundamental Rights and independence especially for women are considered to be one of the top agendas by the people, however, received the major setback on June 24, 2022 when the Supreme Court overturned Roe vs Wade and made the states responsible for taking up the decisions of abortion thereby no longer a Constitutional Right. In one stroke, 36 million women lost their abortion rights although the hope is still with the States.

If the state declares Abortion illegal, it would not only be a black day for the rape survivors but also there would be a tremendous increase of foster care that these unwanted births will go into. Most teenagers having children don't have the means to provide for a child whether mentally or financially. Children may suffer if they do not get adopted or if they go through the foster care route.

Indian Perspective:
Abortion in India was made legal under various conditions by the Medical Termination of Pregnancy (MTP) Act of 1971.

The regulations for the Medical Termination of Pregnancy were issued in 2003 to provide access to safe and legal abortion to women.

Before the Medical Termination of Pregnancy Act of 1971, abortion in India was criminalized according to Section 312 of the Indian Penal code of 1860 stating that Abortion is an intentional miscarriage.

The person who caused or operated this "miscarriage" would be liable to three years in prison or a fine while a women committing such punishable offence had to face seven years in prison or a fine.

In order to take a historical step and to expand health services in India, the Medical Termination of Pregnancy (MTP) Act was amended in the year 2021 which enabled:
  • Abortion irrespective of the marital status i.e. the act legalized unmarried women to undergo abortion.
  • It increased the limit upto 24 weeks for all the rape survivors and beyond 24 weeks for some exceptional and complicated reasons.
  • The act now needs one medical practitioner for 20 weeks, two for 20-24 weeks and approval of the medical board beyond 24 weeks.
  • The law also provides confidentiality of the identity of the women who undergoes abortion, except for the person authorised by law.
  • Incase of failure of such confidentiality, imprisonment upto 1 year or fine would be applicable.
The new amendment contributes towards reducing maternal mortality rate and to enhance the rate of Sustainable development goals.

Case Laws:
  1. X versus The Principal Secretary Health and Family welfare Department, Delhi⁴
    In the landmark judgement of September 29th, the Supreme Court stated that under the Medical Termination of Pregnancy (MTP) Act of 1971, all women are entitled to safe and legal judgement notwithstanding if they are married or upto their 24 weeks of pregnancy.
  2. Suchita Shrivastava and Anr versus Chandigarh Administration, 2009
    The Supreme Court on August 29th stated that a pregnancy can only be terminated if it follows the provisions of the Medical Termination of Pregnancy (MTP) Act of 1971 and the Supreme Court stated the women's right to make reproductive choice within the right to personal liberty under Article 21 of the Constitution of India, 1950.⁵
  3. Bhupinder Kumar versus Angrej Singh, 2009
    The Supreme Court in the case of Bhupender Kumar versus Angrej Singh on August 28th stated that incase of the pregnancy of a girl who is minor or is below eighteen years of age, or is mentally ill shall only be terminated on the consent of her guardian.

In a world, where women had mostly been treated subordinate to men, where most of their pleas still remain unheard in the remote areas of the country, where they still are treated as "kids- producing machines" irrespective of the lack of health care and mistreatment they undergo, when the rape victims suffer, where many deaths occur,

Right to Abortion under the Medical Termination of Pregnancy (MTP)Acts of 1971 and 2021 for the women by the Government of Democratic Republic of India is indeed one of the most reformative steps ever taken over a decade.

The Right to Abortion not only freed women from the clutches of forced child birth and maternal mortality stigma but also helped in improving lives where pegnancies were caused by negligence.

But all that glitters is not gold, although the right as well as the rules had already been implemented by the legislature and the judiciary as well, a large section of people especially the women still remain unaware of their rights or even if they are aware, they are still subjected to the dominancy of their in- laws including their own family members.

In today's era, Abortion still remains one of the most controversial topics of all time with millions of people supporting it while millions of people still against it. However, the fact that one needs to realise is that a woman should have a right on her body and it should be her decision whether to procreate children or not. It should be her will to decide if she wants terminate the pregnancy that was caused to her just for the reason that some psychopath impregnated her.

It should be her right to terminate the pregnancy if her life feels threatened. It should be her sole decision to end the pregnancy if she is subjected to unwanted pregnancies due to the desire of a male child or due to the lack of contraceptive methods that should have actually been used by them.

Moreover, banning Abortion does not reduce the number but eventually increases the rate of unsafe Abortion which is the third largest reason responsible for maternity deaths. Hence it's high time we as the citizens of the largest democracy of the world, where the power rests with the people which includes large section of women i.e. India, realize the importance of 60.47 crores women of the country and spread awareness for their health and acknowledge the need and treat everyone at par with us.

  1. meaning in the Oxford dictionary
  2. meaning in the Oxford dictionary
  3. reference taken from YouTube video ABC news

Award Winning Article Is Written By: Ms.Aaliya Fatima
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