How section 312 of IPC read with the Medical termination of Pregnancy Act, 1971 infringe the right to life of the mother?
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How section 312 of IPC read with the Medical termination of Pregnancy Act, 1971 infringe the right to life of the mother?

Written by: Amitabh Sengupta - I am pursuing my LLB (H.) from Vivekananda Institute of Professional Studies, New Delhi. (affiliated to GGS Indraprastha University, Delhi) and currently in the 7th semester.
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Section 312 of the Indian Penal Code read with the Medical termination of Pregnancy act, 1971 where all the restrictions imposed therein, including the time limit of 20 weeks, other than the ones to ensure good medical conditions, infringe the right to abortion and the right to health, which emanate from right to life as guaranteed by Article 21 of the Constitution. Any law forbidding an abortion under good medical conditions is immoral and in addition unconstitutional, for it violates her right to control her property - her body as wells her life, liberty and happiness.

a) Impugned provisions inhibit the right to abortion which a species of right to life.

Right to abortion is a species of right to privacy, which is again proclaimed a continuance of the right to life under Article 21. In India, the courts have been silent on any direct declaration of the right to abortion. But, in the case of Kharak Singh Vs. State of U.P. and others , the Supreme Court has certainly recognized that a person has complete rights of control over his body organs and his ‘person’ under Article 21. It can also said to be including the complete right of a woman over her reproductive organs. In the United States of America, the Supreme Court upheld the right to privacy and ended the ban on birth control back in 1965, in the case of Griswold v. Connecticut . Eight years later, the Supreme Court ruled the right to privacy included abortions in the landmark case of Roe v. Wade . In 1976, Planned Parenthood of Central Missouri v. Danforth, ruled that requiring consent by the husband and the consent from a parent if a person was under 18 was unconstitutional.

This case supported a woman's control over her own body and reproductive system. William Brennan, J. stated:
"If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwanted governmental intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child."

Abortion deals with one's private life and should have nothing to do with the government. Although there are some restrictions on abortion, due to the states' rights, it is still ultimately the woman's choice. It is not a requirement for some states to fund for abortions, therefore, especially in these states it should be the woman's choice. Abortion is an issue of women, and so it should be the woman's right to choose. She has the free will to consider others views and opinions such as that of the father, but it is her ultimate decision which should be guaranteed by the law. It is one of the most controversial issues in the world today. Everyone has their own individual opinion. A woman's body is hers and hers alone. Nobody has the right to make her do something that she does not want to.
A woman’s right to terminate a pregnancy emanates from her right to make decisions regarding her own body and reproductive capacity. Textual support for this right is found in a number of human rights instruments, which contain provisions that ensure autonomy in decision-making about intimate matters. Such provisions include protections of the right to privacy, the right to decide freely and responsibly the number and spacing of one's children, and the right to physical integrity.

Freedom from interference in one's privacy and family life is protected by Article 12 of the Universal Declaration of Human Rights, Article 17 of the Civil and Political Rights Covenant, Article 11 of the American Convention, and Article 8(1) of the European Convention. The European Commission of Human Rights has propounded in its judgments, like that in cases of Bruggemann and Scheuten v. Federal Republic of Germany and Paton v. United Kingdom; decisions one makes about one's body, particularly one's reproductive capacity, lie squarely in the domain of private decision-making. The right to determine the number and spacing of one's children relates to the right to privacy, but also suggests a government duty to facilitate decision-making in matters of family planning. In 1968, the Final Act of the International Conference on Human Rights stated that:
"Parents have a basic human right to determine freely and responsibly the number and spacing of their children and a right to adequate education and information to do so."

Another point of moot in the jurisprudence surrounding the right to abortion is that whether the foetus has the right be born and if it can supersede the right to abortion. In de Martell v. Merton and Sutton HA , it was held by the English court that:
"The human being does not exist as a legal person until after birth. The foetus enjoys no independent legal personality... An unborn child lacks the status to be the subject of a legal duty. If injury is done to an unborn child, no duty is broken. If injury is negligently caused to a newly born babe, liability in negligence arises...... In law and logic no damage can have been caused to the plaintiff before the plaintiff existed".

The view also garners support from Sir George Baker’s observation in Paton v. BPAS where he said, “a foetus cannot have any rights of its own at least until it is born and has a separate existence from the mother”.

In Re F (In Utero) when an attempt was made to make a foetus a ward of the court to guard its health, the Court of Appeal held that an unborn child lacks legal personality. In C v. S the court said the claim of a child crystallizes ‘on the birth, but not before, the child attains the status of a legal persona’.

In Canada, the Ontario High Cour held in the case of Dehler v Ottawa Civic Hospital that:
“The law does not regard an unborn child as an independent legal entity prior to birth…A foetus, whatever its stage of development, is recognized as a person in the full sense only after birth…The law has set birth as the line of demarcation at which personhood is realized, at which full and independent legal rights attach, and until a child en ventre mere sees the light of the day it does not have the rights of those already born". This was affirmed by the Supreme Court of Canada in the case of Tremblay v Daigle. This view has been also accepted in Australia in the cases of Attorney-General (Qld) (Ex el Kerr) v T and In the Marriage of F and F .In the case of Vo v France, the European Court of Human Rights held that Article 2 of the European Convention of Human Rights (which provides for right of everyone to have their life protected) did not confer a right to life that extended to a foetus. Assuming arguendo, even if it can be said that the foetus has got certain rights, various courts have upheld the right of abortion over the right of the foetus to be born. Thus, the right to abortion can’t be subrogated to the right of the foetus to be born, if at all it can be said to exist.

b) The impugned provisions are an infringement on the right to Health

Right to health has been recognized by the Supreme Court in various cases as being protected under Article 21. It is also the fundamental duty of the state to improve public health under Article 47 of the Constitution. The right to health is recognized in Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (Economic, Social and Cultural Rights Covenant), which requires states to "recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” Article 12(1) of the Convention on the Elimination of All Forms of Discrimination Against Women (Women’s Convention) further requires governments to “take all appropriate measures to eliminate discrimination against women in the field of health care . . . .” It is widely acknowledged that in countries in which abortion is legally restricted, women seek abortions clandestinely, under conditions that are medically unsafe. Because unsafe abortion is closely associated with high rates of maternal mortality, laws that force women to resort to unsafe procedures infringe upon women’s right to life.

Where unsafe abortion does not result in death, it can have devastating effects on women’s health. The health effects of unsafe abortion were addressed at two recent United Nations conferences, the International Conference on Population and Development (ICPD) (Cairo, 1994) and the Fourth World Conference on Women (FWCW) (Beijing, 1995). In the objects and reasons of the MTPA, the legislature confessed that provisions in the IPC concerning abortion were observed in the breach in a very large number of cases all over the country. The health services had expanded and hospitals were availed of to the fullest extent by all classes of society, doctors had often been confronted with gravely ill or dying pregnant women whose pregnant uterus had been tampered with a view to causing an abortion and consequently suffered very severely.

But, the impugned provisions fail to satisfy this very object for which the MTPA was enacted. Every year 6.7 million abortions take place in India but the sad part is that 5.7 millions are illegal.

How the said provisions infringe the right of the disabled child to live with dignity?

It is well settled that the constitution provides for the right to live with dignity. This right would be severely hampered if the state obliges the birth of a person for whom his very existence is a bane rather than a boon. Eugenic grounds of abortions have been recognized by various courts and governments. The European Court of Human Rights has even granted compensation to the parents if the doctor is negligent in detecting patent deformities in the foetus and the child is born with disabilities and deformities.

In the Objects and reasons of the MTPA, the legislature has recognized eugenic grounds as one of the grounds of termination of pregnancy. But again, the impugned provisions fail to satisfy the same by restricting the time limit to 20 weeks. Further, the legislature has not prohibited use of diagnostic techniques to discover foetal disabilities. Scientific reports have suggested that some deformities in the foetus can be only detected in the very late stage of pregnancy and thus abortions should be allowed even after the 24th week of pregnancy. The IPC was enacted more than a century ago and the MTPA, in 1971. Since then, medical science and technology have come a long way. Moreover, what transpires to be the object of the legislature behind the impugned provision setting the time limit for abortion to be that of 20 weeks is to prevent female feticide as this is the time period when and where after the sex of the foetus can be successfully and accurately determined by the pre-natal diagnostic technologies.

Hence it is to be given effect to in the same light and not on the analogy that eugenic grounds for abortion as provided by the act to be valid grounds of abortion under section 3 of the act also burn on the same factum of the stipulated time period, as this would absolutely and non-judiciously defeat the very purpose of legislative efforts such as the pre-natal diagnostic technologies act and the likes of the same. Moreover as the very object of the pre-natal diagnostic techniques act, 1994 also called the prohibition of sex selection act, as given in the statement of objects and reasons is:
“The pre-natal diagnostic techniques like amniocentesis and sonography are useful for the detection of genetic and chromosomal disorders or congenital malformations or sex linked disorders”

Hence it is perspicuous that the object of the act is to ban the use of both sex selective abortions and to regulate such techniques with a view to ensure their scientific use for which they are intended, and not to ban the very detection of such disabilities and abnormalities of the foetus, as this would defeat the very purpose of this act.

1. Moreover section 4(2) of the said act states that no pre-natal diagnostic techniques can be conducted except for the purposes of detection of any of the
1) chromosomal abnormalities
2) genetic metabolic diseases
3) heamoglobinopathies
4) sex-linked genetic diseases
5) congenital anomalies
6) any other abnormalities or diseases as may be specified by the central supervisory board.

Thus the enactment permits such tests if they are necessary to avoid abnormal child from coming into existence. The MTPA as well as the PNDTA are central acts and if by one statute certain rights are conferred upon a prospective mother, the same cannot be denied to a prospective mother by another statute emanating from the same source and the same was observed by the Hon’ble Supreme court in State of Tamil Nadu and ors. V. Ananthi Ammal & ors.

 Subash Chandra Singh, "Right to Abortion : A New Agenda", All India Reporter
(Journal), 1997,p. 129
AIR 1963 SC 1295, pg. 345
381 U.S. 470 (1965)
410 U.S. 113
428 U.S. 52 (1976)
Government in America. by Richard J. Hardy. copyright 1994. page 189. Taking Sides on Clashing Views of Controversial Bioethical Issues. by Carol Levine. Volume 3. copyright 1991. pages: 4-8. The American Heritage History of the Bill of Rights - The Ninth Amendment. by Phillip A. Klinkner. copyright 1991. pages: 31, 56, 75-78, 80-87, 110, 116.
Roe v. Wade 410 U.S. 113; Planned Parenthood v. Casey, 505 U.S. 833 (1992).
(Application No. 6959/75), European Commission of Human Rights, July 12, 1977, 3 EHRR 244 (1981)
(Application No. 8416/78) European Commission of Human Rights, May 13, 1980, para. 27, 3 EHRR 408 (1981).
Final Act of the International Conference on Human Rights, International Conference on Human Rights, Teheran, Iran, May 12, 1968, Res.IX, U.N. Doc.A/CONF.32/41 (1968), in U.N. Department of Public Information, The United Nations and the Advancement of Women 1945-1995, at 167-69, U.N. Doc.DPI/1679 (1995).
[1992] 3 All ER 820, pp 830
[1979] 1 QB 276

The author can be reached at: amitabh4law@legalserviceindia.com / Print This Article

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