Right To Abortion: Never Avowed Side

By Imveerrathore Views: 26887

The right to abortion is conferred on pregnant women by virtue of which they can medically terminate their pregnancy at certain stages of pregnancy as prescribed under the lex. It is a woman's individual rights-right to her life, right to her liberty, and right to the pursuit of her happiness—that sanction her right to have an abortion. a woman's reproductive and sexual health and shape her reproductive choices. Article 21 of the Indian Constitution does include the right to bodily autonomy under the right to privacy, as observed by the Apex Court in the Case of 1 Justice K. S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. (2017).

The Court referred to several key decisions around women's autonomy over their bodies and sexuality as part of the right to privacy, including the right of women to work at night, the protection of reproductive rights, the right to bodily integrity, the rights of unwed mothers, the right against forced sterilization, and the right to decide on marriage, procreation, and the choice of a family life.

These, the Court held, were matters of one's most intimate and personal choices and essential to the pursuit of happiness, which is founded upon autonomy and dignity. India has enacted the Medical Termination of Pregnancy Act, 1971. This law guarantees the right of women in India to terminate an unintended pregnancy by a registered medical practitioner in a hospital established or maintained by the government or in a place approved for the purpose of this act by the government. Not all pregnancies can be ended.

Laws Are Created In Societies:

Keeping in mind the people in society to whom these would be applicable on.
It is to ensure that laws do not alienate the people and, more importantly, are enforced with relative ease.
Many Western countries, who are considered progressive by a lot of people, are anti-abortion.
They understand the sentiment of their society and therefore feel bound to reflect it into their legislature.
India, unlike such so-called "Western progressive" countries, reflects and honors the right of a parent and has a very liberal view of abortion, and therefore allows it.
While going against its traditional, cultural, civilizational, or religious practices, abortion is made legal.
At the same time, we must understand that Indian values and the family system are different from other societies, and there is a need for the laws to reflect that.
The male parent also has a significant part to play in the child's conception, let alone emotional investment in the pregnancy of a couple, yet there is no recognition which is reflected in law.
The issue is not of comparison as to who holds more rights over an unborn child, but it is recognition that there is more than one parent.
A male parent is responsible financially for the upkeep of his pregnant wife and is also financially responsible for the child since the day he/she is born.
Given that the law holds the male parent responsible throughout the period of pregnancy to the child's birth, it is unfair that the male parent has no say in the probable case of the child's abortion.
Just because he is a male does not imply that he must not have an equal say in the child's probable abortion.
Our constitution envisions equal rights to all individuals, dare I say, irrespective of their gender.

Historical and Legal Perspective

Historically, abortion has been strongly condemned in the Vedas, Upanishads, Puranas, and Smritis unless it is done to save the life of the mother.
Many Hindus believe that the soul and the matter that comprise the fetus are joined together from conception.
According to the doctrine of reincarnation, a fetus is a person from conception and does not develop into one.
It contains a reborn soul and should be treated appropriately.
Granting the right to abortion somehow mitigates the historical beliefs and infringes on the right to life of the fetus, empowered by the doctrine of reincarnation under Hindu beliefs.
After deep scrutiny of the lex enacted by the legislature, there is a lacuna in the provisions, and that particular missing aspect does infringe on the fundamental rights of an individual.
The consent of the father of the fetus conceived by the woman during pregnancy termination is missing.
Pregnancy cannot be attained by the woman alone, as it is the result of conjugation between the male and female.
A father is bound by law to maintain his child, whether the child is conceived during a legitimate or illegitimate relationship.
Under Section 125 of the Code of Criminal Procedure, 1973, a man is legally bound to maintain his offspring.
Section 3, clause 4(b), clearly talks about the consent of the pregnant woman, but there is no mention of the consent of the father of the fetus.

Legal Precedents

Section 3(4)(b) of the MTP Act: "Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman."
In the case of Anil Kumar Malhotra v. Ajay Pasricha, the Supreme Court dismissed the petition of the husband in which he sought compensation from his wife, her brother, and a medical practitioner, as there was an absence of his consent in the termination of the pregnancy by his wife.
The termination of the pregnancy incurred mental agony for him as it was unethical and cruel on his part.
The Supreme Court upheld the judgment of the Punjab and Haryana High Court, which held that only the consent of the pregnant woman undergoing the termination of pregnancy is required.
Moreover, the Court held that an unwanted pregnancy, as per Explanation II to Section 3(2) of the Act, is a grave injury to the physical or mental health of the woman.

The Court remarked in paragraph 17 that:
"If the wife has consented to matrimonial sex and created sexual relations with her own husband, it does not mean that she has consented to conceive a child." It is the free will of the wife to give birth to a child or not. "The husband cannot compel her to conceive and give birth to his child."

The Court further remarked in paragraph 22 of this High Court judgement that:
"A woman is not a machine in which raw material is put and a finished product comes out." She should be mentally prepared to conceive, continue the same, and give birth to a child," and concluded that the husband has no right to compel his wife not to terminate the pregnancy and that he had no right to sue his wife for compensation.

In the process of serving justice, the court somehow served injustice on the part of the husband, as the same husband would be bound by law to maintain the baby, which has been medically terminated, if it was not done. However, according to the court's current ruling, the father has no rights over his child in the mother's womb.

The court has placed an individual right over the institution of marriage, which two people are part of, and the pregnancy was also the result of conjugation between male and female under that institution. Some may see it as a progressive judgement on the part of women and their bodily autonomy, but it certainly undermines the institution of marriage, which bears the weight of society on its shoulders.

The legislature should require the consent of the father of the foetus for the medical termination of the same. The court should also work for the betterment of the institution of marriage; otherwise, there will be misuse of the conferred right, as some wives may use it to cause mental agony to their husbands. There should be a right to financial abortion for the father, as the right to terminate the pregnancy lies with the mother.

A "financial abortion" right would require a woman to notify a prospective father when she's pregnant. The man would then be allowed to refuse financial or legal responsibility for the baby if he doesn't want to be a father. Should the child be born despite this, the biological father would not be legally or financially responsible for the child's upbringing. This will bring the enforcement of the principle of "jus" rather than the arbitrary misappropriation of one's rights to compensate others.

The law has to take care of the liberty of the father and the mother. As a welcoming community, we should seek ways to include the father's role in the termination of the foetus, as pregnancy cannot be achieved by the mother alone.

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