Abortion laws in India : Article

ABORTION LAWS IN INDIA

INTRODUCTION:

Human rights are those rights, which should be available to every individual without any discrimination af any kind. Recognition of the inherent and of the equal and inalienable rights of all members of the human family is the foundation of freedom. Among other rights of women, it is believed that every mother has a right to abortion as it is an universal right.

The term abortion is not unknown to a person, as it must have been heard by him/her several times. The viewpoint of different persons has been different on the legality of abortion. Some argue that it is equivalent to murder, on the other hand it has been argued by others that it is right of a woman to choose ”Whether she wants to give birth or not”.

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 foetus. But due to the change in the time and technology, now this right has been legally sanctioned by most of the nations after the famous decision of Roe Vs Wade by the US Supreme Court. But the oppositions are still present and people do believe that it should be legally prohibited.

So, here a very crucial question arises which is a reason for discussion, that is, the right of the mother to live with dignity securing her Right to Life and Personal Liberty is more important or the Right to Life of the unborn is more important, which has remained as one of the most controversial and ethical issues in Indian political and social scenario.

What is Abortion?

An abortion is the removal or expulsion of an embryo or foetus from the uterus resulting in or caused by its death.

INDIAN CONTEXT:

Indian law allows abortion, if the continuance of pregnacy would involve a risk to the life of the pregnant woman or pose a grave injury to her physical or mental health. There are various reasons behind legalizing abortion in certain special circumstances because there has been a danger of women undergoing abortion process in unhygienic conditions and without proper care.

The Indian legal system has always kept itself away from the legality of abortion for a long period of time due to various reasons. It has remained a matter of great concern because there was a kind of fear in the minds of the lawmakers that in case abortion becomes legalized then there would be a huge increse in the practice of female foeticide. In the states like Haryana and Punjab, where the sex ratio is pathetic, there was a great concern over this issue. It would not be wrong to say that the practice of female foeticide was quite popular in North India, and it was the main reason why the government was not willing to enact a law which would give legal right to a person to terminate the pregnancy. There had been a large number of cases where women were willing to give birth to the child but due to the pressure of her in-laws, she was forced to terminate her pregnancy.

Then the Medical Termination of Pregnancy (MTP) Act was enacted under which pregnancy can be terminated. Under this provision, only doctors are eligible to perform the abortion and that too under special circumstances. There are various reported Supreme Court and High Court cases which deal with the matter of the abortion. Sometimes petitions have been filed under Article 21 of the Indian Constitution stating that a woman has a Right to Life and Personal Liberty and if she does not want to have a child, then she should be allowed to terminate the pregnancy. The current status in Indian scenario is that Abortion is allowed, but under special circumstances.

The matter of concern relating to abortion is not just only confined to foeticide, but there are various cases of abortion when it is the woman who had to give up her life. According tot the Consortium on National Consensus for Medical Abortion in India, every year on an average 11 million abortions take place annually and around 20,000 women die every year due to abortion related complications.

 

Abortion and Indian Society

The issues of abortion in the Indian Society has always remained a controversial issue. There has been a lot of opposition from the various sections of the society considering the law which legalized abortion as a law against morality. Various persons who claimed themselves to be religious leaders criticised this law and stated that the act of abortion is equivalent to the murder, that is, killing of a child who has not seen the world. According to them, every person has a right to life and so the children who have not taken birth also have this right.

On the other hand, this law is favoured by several other sections of the society claiming that it is the right of a woman whether she wants to give birth to a child or not, and if someone is forcing her to give birth to the child then the person is violating her right to life and personal liberty.

 

Judgement of the Supreme Court of India:

The Supreme Court of India has said that the Right to Privacy is implicit in Article 21 of the Constitution and the right to abortion can be read from this right.

The Medical Termination of Pregnancy (MTP) Bill was passed by both tht Houses of the Parliament and received the assent of the President of India on 10th August 1971. It came on the Statute Book as the ”MTP Act, 1971”.

Abortion was being practiced earlier by many because it was illegal, it was practised in a clandenstine manner. The passing of the Act made medical termination of pregnancy legal, with certain conditions for safeguarding the health of the mother.

Recently, the Supreme Court of India has given verdict in two cases of abortion where the orders were beyond the permissible period in the MTP Act because of which there has been an outcry for change in law. In the first case, a woman successfully obtained direction for medical termination of pregnancy after 24 weeks on a plea that she was raped by her boyfriend on the false promise of marriage. In another case, the Delhi High Court intervened directing medical examination for fitness for abortion responding to the poignant tale of a  16-year-old who was kidnapped by unknown persons, was sexually abused by them for 2 years, and finally found abandoned.

It is common that abortion is possible within 12 weeks at the option of the pregnant woman and within an extended period of 20 weeks with the permission of a Medical Board consisting of atleast 2 persons, but now the SC has even allowed the termination of the pregnancy of 24 weeks and 26 weeks in certain rarest of the rare cases.

 

Latest Supreme Court of India Judgement:

Yesterday itself the Supreme Court gave a landmark judgement dismissing a man’s petition seeking damages from his wife for undergoing an abortion without his consent ruling that ”no express or implied consent of the husband is required for getting a pregnancy terminated”.

The SC said that an adult woman has an ”unimpeachable right” to give birth or terminate the pregnancy. The Court also said that ”Even a mentally challenged woman has this right”.

 

CONCLUSION:

 

A mother has got a natural duty to provide the maximum best possible care to her offspring. However, situations may arise, where she indulges in activities, which injuriously affects the foetus. It may be due to ignorance, carelessness or acts done wilfully. However, taking viability of a legal standard, necessary protection should be provided to the unborn. Abortion rights should be at the discretion of the mother but this does not mean confering a right to the mother to destroy the foetus. Her right is only limited to have a termination of the pregnancy.

After considering all the facts and instances, I personally and firmly feel that Abortion is a woman’s personal right, right to her life, to her liberty, and to the pursuit of her happiness, which finally sanctions her the right to have an abortion. A woman’s reproductive and sexual health shapes her reproductive choices. A child should not be the reason of physical pain, and emotional and mental suffering and agony for an expecting mother. She must be free to make her own decision and put forward her stand, what she feels to be right for herself, for her family and for the society at large.

Therefore, Abortion is an issue to be left to the decision of the mother.

By: Shivangi, BHU

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