Pooja, 4th year of BA LLB, SASTRA Deemed University, Tanjore
Abortion is one of the universal topics for debate at both national and international levels. There is a dilemma in protecting the rights, on one hand, the rights of the mother to terminate her pregnancy and on the other hand the rights of the unborn child to live. In India, abortion is considered a sin committed by women. The belief in the minds of the people from different religion stands for the idea that abortion is against the customs and practices of our society. But the question that pops up in the mind is that whether these customs are important than a women's life. Does she own personal rights regarding her body? The legalization of abortion is a milestone step in our Indian legal system.
Termination of pregnancy can take place in the following circumstances:
A risk or a grave injury to the mother’s life in continuing the pregnancy
The child born would have physical and mental abnormalities.
Pregnancy caused by rape.
Pregnancy is caused due to the failure of contraceptives and it is presumed that it may cause harm to the mental health of the women.
Personal liberty is vested in the women under Article 21 to make decisions about her body. Society cannot influence or decide a mother's right over her pregnancy. She has innate reproductive rights which comes under the ambit of personal autonomy of Article 21 of the Indian Constitution. In order to protect the life and health of the women, the pregnancy can be terminated. The Medical Termination of Pregnancy Act, 1971 legalizes abortion under few circumstances. Even though there are few legal provisions, complete liberty is not handed over to the women.
Due to the social, logistic, and economic problems, the women usually resort to unsafe abortions, this is the main reason for maternal deaths in India. Section 312 of the Indian Penal Code governs the penal action against abortion. It states that if a woman voluntarily causes miscarriage and without good faith, then will be punished with either imprisonment or a fine or both. The punishment becomes rigorous if the fetus has started moving or the motion of the baby in the womb was felt by the mother. The Shantilal Shah Committee [i] was formed in 1964 to curb the issues of illegal abortions. After the recommendation of the committee, the Medical Termination of Pregnancy Act was enacted.
Article 1 of the Universal Declaration of Human Rights (UDHR) [ii] reads as "All human beings are born free and equal in dignity and rights" but the women's life is given priority. Women have absolute control over their reproductive organs and she does not need her family's consent. The right to abortion has been legalized by the MTP Act. The right to abortion is a matter of personal liberty and privacy. Only the reasonable restriction mentioned under the MTP Act can be imposed on the rights of the women.
Amendments of Medical Termination of Pregnancy Act
The amendments brought in the Medical Termination of Pregnancy Act has given more importance to the rights of women. In the 2002 amendment, better health facilities were introduced and better access to those facilities was made to women in the private health sector. The Comprehensive Abortion Care (CAC) is a high-quality care unit. By the amendments, the services of CAC were expanded overall levels of society. Unapproved abortion sites were given higher penalties to reduce maternal deaths.
In the 2014 amendment, the upper gestation limit for legal abortion was increased and awareness about legal services for medical termination was spread among the people. The law regarding the medical termination of pregnancy was made clear by this amendment. The Medical Termination of Pregnancy (Amendment) Bill, 2020 was introduced for increasing the upper limit of legal abortion.
A new dimension to abortion laws given by the United States
In Roe v. Wade [iii], the Supreme Court of the United States held the law that criminalizes abortion is violative of the due process clause. The word "person" in the fourteenth amendment does not include an unborn child. The issue is that the time when life begins cannot be speculated. The right to privacy recognized by the Supreme Court consists of the freedom of choice in making decisions about one's life. The women's freedom to terminate her pregnancy comes under her liberty.
The US Supreme Court held that the undue burden test should be followed instead of the trimester framework. Without due process of law, the state cannot derive the rights of the people. The USA recognized that the women's right to terminate her pregnancy is covered under her right to personal liberty and right to privacy. The state cannot influence individual decisions. The unborn child can be protected only after the stage of viability.
In addition to that, the freedom of privacy and personal liberty to decide about her family life is protected the international law. Some of the provisions are:
Article 12 of the Universal Declaration of Human Rights
Article 17 of the Civil and Political Rights Covenant
Article 11 of the American Convention
Article 8(1) of the European Convention
The silence of the Indian judiciary
There is no direct declaration about the law of abortion in the Indian Legal System. The Indian judiciary is silent regarding the right of women to terminate their pregnancies. In many cases, the rights of women are impliedly violated. The Supreme Court of India does not favor the right to procreation that the woman has the right to decide about her reproductive organs. If a husband or the matrimonial family of the women compels her to give birth to a child, then it amounts to cruelty. But in numerous cases, it was held that if the woman terminates her pregnancy without the consent of her husband, then it is considered cruelty. In S.K Verma v. Usha [iv], it was held that without the husband's consent, a woman cannot terminate her pregnancy. This infringes the women's right to their liberty.
Then, what happens in the case of a widow? Many times, courts favor the sentiments and interests of the parties and not the law. Let's examine an interesting case study published in a newspaper.[v] A widow of a policeman terminated her pregnancy after her husband's death. The complainant in the case was the family of the deceased. The mother of the deceased contented that the unborn child was the only heir of the deceased son. It was also submitted that the abortion took place so that the women can remarry. In this case, the court summoned the women and proceeded with the charge under section 312/201 of the Indian Penal Code. Here, the priority is given more to the Indian Penal Code than the Medical Termination of Pregnancy Act. The court has supported the sentiments of the family and has violated the rights of the women. Her interests are sacrificed due to the customs and sentiments that prevail in society.
The existing directives have to be examined according to the dynamic society. The present practical society demands development in both individual's minds and public thoughts about abortion. A said in the constitution, women have the right to do anything with their bodies. The legal provisions of abortion are not completely liberal. The freedom of women regarding their reproductive organs is restricted due to the customs and thoughts of society. The structural barriers to abortion should be addressed and the sanctity of constitutional provisions has to be maintained.
[i] The Shantilal Shah Committee Report, Ministry of Health, Government of India. [ii] Universal Declaration of Human Rights (UDHR), https://www.un.org/en/universal-declaration-human-rights/. [iii] Roe v. Wade, 410 US 113 (1973). [iv] S.K Verma v. Usha, A.I.R. 1987 Del 86. [v] Reported in Hindustan Times, June 27, 2005.