Human rights are rights inherent to all human beings irrespective of race, sex,
religion, ethnicity, language, nationality or any other status. Human rights
include the right to life and liberty, freedom from slavery, freedom of speech
and expression, right to education and work and many more. Each individual is
entitled to these rights without discrimination. The most important human right
is the right to life and liberty. But there are some inflammatory issues related
to this right. One such issue is the right to abortion. Abortion is one of the
most controversial and inflammatory topics around the world.
Usually debates
about abortion focus on politics and legal aspects whether abortion should be
legalized and it should remain a free choice which is available to all women or
should it be outlawed and treated in the same manner as murder of a human.
Abortion laws vary from country to country. In some countries, abortion is
altogether prohibited while most countries in Europe offer safe and legal
abortion and in some countries, abortion depends upon the gestation period. The
debate today is whether a mother has the right to abortion vis-a-vis the right
to life of the unborn child.
What is abortion?
Abortion is the deliberate termination of pregnancy before the foetus is able to
sustain itself independently. It is of two kinds:
- Medical abortion involves terminating the pregnancy with the help of
pills and medicines, a woman who is less than seven weeks pregnant can
undergo a medical abortion under the supervision of a physician.
- Surgical abortion; if a woman wishes to undergo an abortion beyond seven
weeks of the gestation period, she can undergo a surgical abortion.
In countries where abortion is considered illegal women are compelled to unsafe
abortions. Preventing girls and women from having an abortion does not mean they
don't need it. Banning or restricting abortions does not reduce abortions, it
only forces people to seek out unsafe abortions. An estimated 25 million unsafe
abortions take place every year. Unsafe abortions are the third leading cause of
maternal deaths worldwide as they have fatal consequences.
Deaths are common in
countries where access to safe abortion is limited or prohibited completely as a
majority of women and girls who seek abortion because of unwanted pregnancy are
not able to legally access one. Forcing someone to carry an unwanted pregnancy
is a violation of their human rights. Access to abortion is thus linked to
protecting and upholding the human rights of women and girls and therefore
achieving social and gender justice.
Indian laws allow abortion if the pregnancy involves risk to the life of the
pregnant woman or a grave injury to her physical or mental health. After Shah
Committee's recommendations, the Medical Termination of Pregnancy Act was
drafted and passed by the parliament in 1971. This act enabled women to
terminate an unintended pregnancy by a medical practitioner. The intention
behind this law was to make legalized abortions easier under specific
circumstances. It allows for pregnancy termination by a qualified and recognized
medical practitioner.
Medical Termination of Pregnancy Act, 1971
According to section 3 of this Act, pregnancy can be terminated:
- Where the gestation period has not lasted longer than 12 weeks
- Where the duration of pregnancy has exceeded 12 weeks but not 20 weeks; assessment by 2 registered doctors is required
- When there is a probability that the unborn child will suffer from mental and physical disabilities
- The pregnancy involves risk to the life of the pregnant woman or a grave injury to her physical or mental wellbeing
According to section 2(d) of the act� "a registered medical practitioner is a
medical practitioner who possesses the required medical qualifications which are
defined under section 2 of the Indian Medical Council Act of 1956 and whose name
is registered in the state medical register"
A woman's right in this regard is doubtful because her right is dependent on
certain conditions: a situation where only abortion could save her life, there
is evidence of risk to her life or grave injury to her mental or physical
health, risk of physical or mental abnormality to the child, all these factors
are to be determined by medical practitioners.
The act had many shortcomings.
Apart from all these factors, there are other prominent factors which the act
does not pay attention to. Her relationship with her husband may be unstable or
on the verge of collapse, she may not be financially stable to welcome the
child, and she may not be in the mental space to bring the child into the world.
These factors are relevant but the act does not consider them. Due to these
shortcomings, an amendment was introduced in 2002 and 2021.
Under the Medical Termination of Pregnancy Amendment Act, of 2002 the term
"lunatic" was amended to "mentally ill person" to deal with psychological
illnesses that did not amount to mental disabilities. At the district level, a
committee was set up which was responsible for deciding whether to allow private
institutions abortion services or not. Harsh penalties were awarded if abortion
services did not comply with the provisions of the Act.
With technological advancement and innovation, there was a need for better laws
which was fulfilled by the Medical Termination of Pregnancy Amendment Act, of
2021.
According to this act:
- Only one medical practitioner is required to terminate a pregnancy with a gestation period of 20 weeks.
- The act includes a special classification of women such as rape victims, specially-abled women, girls younger than 18 years, and survivors of incest.
- The act enhances the gestation period for terminating a pregnancy from 20 to 24 weeks.
- The act seeks to protect the privacy and confidentiality of women who wish to terminate their pregnancies.
- The act allowed for the termination of pregnancy of women who are unmarried and are in relationships. The phrases "married woman and her husband" have been amended to "woman and her partner".
Case Laws
Dobbs v. Jackson Women's Health Organization is a landmark decision in which the
U.S. Supreme Court overruled both Roe Vs Wade, 1973 and Planned Parenthood Vs.
Casey, 1992. The Mississippi Legislature passed the Gestational Age Act in 2018
which restricted abortion and banned any abortion after the first 15 weeks of
pregnancy, with an exception for medical emergencies or severe fetal
abnormality. It did not bring into consideration cases of rape or incest.
Jackson Women's Health Organization which was Mississippi's only abortion clinic
sued state official Thomas E. Dobbs to challenge the Act's constitutionality.
The court held that the Constitution of the United States does not confer a
right to abortion. The court then established that abortion was not deeply
rooted in the Nation's history and traditions and gave individual states the
autonomy to regulate any aspect of abortion. The judgement was supported by
those who aligned with the United States anti-abortion movement including the
National Right to Life Committee. It was opposed by United States
abortion-rights movements which also included President Joe Biden and former
president Barack Obama.
Roe v. Wade (1973) is one of the most significant Supreme Court decisions in
history. The Supreme Court ruled that the Constitution of the United States
conferred the right to have an abortion. The decision abrogated many state and
federal abortion laws. Jane Roe instituted a federal action against Henry Wade,
the district attorney of Dallas, Texas where Roe resided. Roe challenged the
constitutionality of the Texas criminal abortion laws which prohibited
attempting an abortion except on medical advice for the purpose of saving the
mother's life. The Court stated that the Constitution of the United States
provides a fundamental "right to privacy", which protects a pregnant woman's
right to abortion. The Court held that the right to abortion was not absolute.
The Court held that there must be a balance between the State's varying
interests in the health of pregnant women and the potential life of the foetus.
The Court announced a pregnancy trimester timetable to govern abortion
regulations and to resolve these competing interests.
Murugan Nayakkar vs. Union of India and Others. the petitioner who was a
13-year-old girl and a victim of alleged rape and sexual abuse had appealed for
the termination of her pregnancy. The Apex Court allowed the termination of the
32 weeks old pregnancy. The court held that "the court takes into consideration
the age of petitioner, the trauma which she suffered because of sexual abuse,
her mental state and the agony that she was going through and above all report
of the Medical Board and allows for termination of her pregnancy."
Mrs X and Others. vs Union of India:
The Supreme Court allowed for the
termination of a 22-week-old pregnancy. The Court held that "a woman's right to
make reproductive choices is also an aspect of her "personal liberty" under
Article 21 of the Constitution and the right to bodily integrity allows her to
terminate her pregnancy. The Court allowed for termination after the Medical
Board opined that allowing the pregnancy to continue could gravely endanger the
woman's physical and mental health.
Dr. Nisha Malviya and Anr. v/s State of M.P:
The girl was the victim of rape
which was committed by the accused. The allegations were that two other
co-accused took her and forcibly terminated her pregnancy. The charge on them
was for causing miscarriage without the consent of the girl. The Court held that
all three accused were guilty of termination of pregnancy which was not
consented by the parents of the girl or the girl herself.
Shri Bhagwan Katariya and Others v/s State of M.P:
In this case, after the
complainant conceived pregnancy, the husband and other family members took her
for abortion and without her consent got the abortion done. The Court held the
doctor liable and opined if, in reference to section 3 of the Medical
Termination of Pregnancy Act, 1971, a doctor is entitled to terminate the
pregnancy under particular circumstances. If a pregnancy is terminated without
the consent of the woman, it is presumed that it is not in accordance with the
provisions of the concerned law.
Rajeswari v/s State of Tamil Nadu and Others:
The Court granted the permission to
terminate the pregnancy caused by rape to an unmarried girl of 18 years on the
ground that bearing the unwanted pregnancy of the child of 3 months made her
become mentally ill. The continuance of this pregnancy was causing her great
anguish, relating to a great injury to her mental health.
Suchita Srivastava and Anr v/s Chandigarh Administration: An orphaned woman with
mental retardation got impregnated as a result of rape. Without the woman's
agreement, the Punjab and Haryana High Court concluded that the pregnancy should
be aborted under Section 3 of the Medical Termination of Pregnancy Act, 1971 as
she lacked the capacity to care for a child and had no guardian to look after
her.
The Supreme Court overruled the Punjab and Haryana High Court decision,
ruling that the right to reproductive choice is derived from Article 21 of the
Constitution. It was determined that an abortion without her consent could not
be authorised. The Court ruled that only the woman's consent or her guardian's
consent if she is mentally ill or is a minor is material.
Critical Analysis
Throughout the world, abortion rights are influenced highly by cultural and
religious sensibilities. Those in favour of the prohibition of abortion describe
themselves as 'pro-life' and believe that foetus is a human being who has a
fundamental right to life, while those against restrictions on abortion describe
themselves as 'pro-choice' and believe in body sovereignty. Both groups indicate
central principles in arguments for abortion debates. The dilemma is whether the
foetus is a human being and has a fundamental right to life or does the woman
has a right or not to undergo an abortion.
Arguments which favour the prohibition of abortion and deem it as homicide
concern:
- The issue of the foetus's life, raises the question of whether one person's desire for autonomy can extend to ending another's existence.
- The killing of an innocent is a crime and the foetus is also an innocent life.
- Many women suffer significant emotional trauma after having an abortion.
- A foetus is a human being, entitled to protection, from the movement of conception and therefore has a right to life that must be respected.
- Each woman has the sole right to make decisions about her body, no one should force her to carry or terminate a pregnancy.
- If abortion is banned, we would return to days of backstreet abortions. The women resort to unhygienic measures to abort the foetus.
- Act of performing an abortion to save the mother's life when occurs, however, the rationale is not that the foetus is seen to have less value than the mother, but that both will suffer if no action is taken.
- If suppose abortion is banned, a woman does not want to carry her pregnancy, she would carry it and then abandon the newborn child. This would be more threatening to the well-being of the child.
A mother has a natural duty to provide the maximum best possibility to her
offspring. However, situations may arise when she indulges in activities, which
injure the foetus. It may be due to carelessness, ignorance or acts done
willingly. Abortion is a choice which must be made available to all mothers.
However, necessary protection should be provided to the unborn.
It is also
beneficial to the mother where the state or other organisations are ready to
take care of the unborn. A woman's right is limited to her termination of
pregnancy. We should seek ways of providing support for lonely and frightened
mothers and for lonely and abandoned children. Women with unplanned pregnancies
need our support and love. We must hear them and aid them in finding other
compassionate alternatives to abortion.
Award Winning Article Is Written By: Ms.Deepali Tilwani
Authentication No: JU352949933451-12-0623 |
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