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Introduction
Human Rights are those rights, which should be available to every
individual without any discrimination of any kind. Recognition of
the inherent dignity and of the equal and inalienable rights of
all members of the human family is the foundation of freedom. The
most important right of a Human is the right to life. It is the
supreme human right from which no derogation is permitted. It is
inalienable. The Article 6(1) of the International Covenant on
Civil and Political Rights
prohibit the arbitrary deprivation of life. But there are some
controversial issues related to this supreme right. One such issue
is the question of Right to abortion. Among other rights of women,
it is believed that every mother has a right to abortion, it is a
universal right. But the rights of the mother are to be balanced
with the rights of the unborn.
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 fetus.
But due to the change in time and technology, nowadays 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.
The question which is the
reason for this discussion is- whether a mother has a right to
abortion vis a vis the right to life of the unborn
What are the
International instruments which sanction the right to abortion.
What is the stand of India on this
What is Abortion ?
The Wikipedia Dictionary defines an abortion as :
An abortion is the removal or expulsion of an embryo or fetus
from the uterus, resulting in, or caused by, its death.
This can occur spontaneously
as a miscarriage, or be artificially induced through chemical,
surgical or other means. Commonly, "abortion" refers to an induced
procedure at any point in the pregnancy; medically, it is defined
as a miscarriage or induced termination before twenty weeks
gestation, which is considered nonviable.
Abortion as a Human Right
Throughout history, induced abortions have been a source of
considerable debate and controversy. An individual's personal
stance on the complex ethical, moral, and legal issues has a
strong relationship with the given individual's value system. A
person's position on abortion may be described as a combination of
their personal beliefs on the morality of induced abortion and the
ethical limit of the government's legitimate authority.
It is a woman's individual
rights, right to her life, to her liberty, and to the pursuit of
her happiness, that sanctions her right to have an abortion. A
women's reproductive and sexual health and shape her reproductive
choices. Reproductive rights are internationally recognized as
critical both to advancing women's human rights and to promoting
development. In recent years, governments from all over the world
have acknowledged and pledged to advance reproductive rights to an
unprecedented degree. Formal laws and policies are crucial
indicators of government commitment to promoting reproductive
rights. Each and every women has an absolute right to have control
over her body, most often known as bodily rights.
A woman has a right to
abortion if :
# The continuance of the pregnancy would involve risk to the life
of the pregnant woman greater than if the pregnancy were
terminated
# The termination is necessary
to prevent grave permanent injury to the physical or mental health
of the pregnant woman
# The continuance of the
pregnancy would involve risk, greater than if the pregnancy were
terminated, of injury to the physical or mental health of the
pregnant woman
# The continuance of the
pregnancy would involve risk, greater than if the pregnancy were
terminated, or injury to the physical or mental health of any
existing child of the family of the pregnant woman
# There is substantial risk
that if the child were born it would suffer from such physical or
mental abnormalities as to be seriously handicapped.
# Or in emergency, certified by
the operating practitioner as immediately necessary:
to save the life of the pregnant woman or to prevent grave
permanent injury to the physical or mental health of the pregnant
woman.
International Instruments Relating Right To Abortion
Article 1 of the American Declaration of Rights and Duties of Man
and the Inter American Commission of Human Rights say that
abortion is legalized until the end of Firat trimester Right to
life is protected from the moment of its conception by Articles
6(1) of the ICCPR, Article 2 of the European Convention of Human
Rights and Article 4 of the African Charter of Human Human and
People's right. But they are silent on the issue of when does life
begin. But the interpretations have forced us to believe that the
child is not to be protected from the time of its inception. The
right to life of the fetus has to be balanced with the rights of
the mother.
International courts and
tribunals have not addressed the difficult philosophical issue of
when life begins, but have focused on the meaning of the language
used in the relevant treaties. They have generally held that the
references to every human being or
everyone or every person
do not include an unborn foetus.
The right of a woman to her
private life has been the basis on which a number of international
bodies have upheld the right of a woman to have an abortion. The
right to freedom of expression and access to information has been
used to argue for the right of women to receive information about
abortion options. The right to access abortion may also be based
on the right of a woman to decide freely and responsibly on the
number and spacing of her children.
In a January 2006 CBS News
poll in US, which asked, "What is your
personal feeling about abortion", 27% said that abortion should
be
"permitted in all cases," 15% that it should be "permitted, but
subject
to greater restrictions than it is now," 33% said that it should
be
"permitted only in cases such as rape, incest or to save the
woman's
life," 17% said that it should "only be permitted to save the
woman's
life," and 5% said that it should "never" be permitted. [71] An
April
2006 Harris poll on Roe v. Wade , asked, "Do you favor or oppose
the
part of Roe v. Wade that made abortions up to three months of
pregnancy legal", to which 49% of respondents indicated favor.
The
Historic Decision Of:
Roe Vs. Wades (1973)
Roe v. Wade became one of the most politically significant Supreme
Court
decisions in history, reshaping national politics, dividing the
nation
into "pro-choice" and "pro-life" camps, and inspiring grassroots
activism. This is a landmark United States Supreme Court decision
establishing that most laws against abortion violate a
constitutional
right to privacy, thus overturning all state laws outlawing or
restricting abortion that were inconsistent with the decision.
Jone Roe, the plaintiff wanted to terminate her pregnancy because
she
contended that it was a result of rape. Relying on the current
state of medical knowledge, the decision established a system of trimesters
that
attempted to balance the state's legitimate interests with the
individual's constitutional rights. The Court ruled that the state
cannot restrict a woman's right to an abortion during the first
trimester, the state can regulate the abortion procedure during
the
second trimester "in ways that are reasonably related to maternal
health," and in the third trimester, demarcating the viability of
the
fetus, a state can choose to restrict or even to proscribe
abortion as
it sees fit.
In response to
Roe v. Wade, several states enacted laws limiting
abortion, including laws requiring parental consent for minors to
obtain
abortions, parental notification laws, spousal consent laws,
spousal
notification laws, laws requiring abortions to be performed in
hospitals
but not clinics, laws barring state funding for abortions, laws
banning
most very late term abortions. The Supreme Court struck down
several
state restrictions on abortions in a long series of cases
stretching
from the mid-1970s to the late 1980s.
In the Supreme Court Of Canada, interpreting Article 7 of the
Canadian
Charter which guarantees an individual's right to life, liberty
and
freedom and security of a person. In the leading case of
Morgentalor
Smoling and Scott vs. R (1988) 44 DLR (4th ) 385, the Court
focused on
the bodily security of the pregnant women. The Criminal Code of
the
country required a pregnant woman who wanted an abortion to submit
an
application to a therapeutic committee, which resulted in delays.
The
Supreme Court found that this procedure infringed the guarantee of
security of a person. This subjected the pregnant woman to psychological
stress.
Also the Abortion Act,1967 of the UK in its Article 2 does not
confer an
absolute right to life to the unborn. It was held in
Paton Vs.
United
Kingdom(1980) 3 EHRR 408. Abortion is permitted if the continuance
of
the pregnancy involves risk. The right to life of fetus is subject
to an
implied limitation allowing pregnancy to be terminated in order to
protect the life of a mother. The same was upheld in H Vs.
Norway.(
(1992) 73 DR 155)
Also, it is was also held in 1992 by the Supreme Court that a
women has
the same exclusive right to abortion as to any to any other
medical
treatment. The prospective fathers have no right to be consulted
for the
same.
The
Indian Perspective
Indian law allows abortion, if the continuance of pregnancy would
involve a risk to the life of the pregnant woman or grave injury
to her
physical or mental health.
Abortion was being practised earlier by many. Because it was
illegal, it
was practised in a clandestine manner. The passing of the Act made
medical termination of pregnancy legal, with certain conditions
for
safeguarding the health of the mother.
Abortion is severely condemned in Vedic, Upanishadic, the
laterpuranic(old) and smriti literature. Paragraph 3 of the Code
of
Ethics of the Medical Council of India says:
I will maintain the
utmost
respect for human life from the time of conception.
The Supreme Court has said that the right to privacy is implicit
in
Article 21 of the Constitution and a right to abortion can be read
from
this right.
The Medical Termination of Pregnancy Bill was passed by both the
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 "The MTP
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 a place being
approved
for the purpose of this Act by the Government. Not all pregnancies
could
be terminated.
Section 3 of the said Act, says that pregnancy can be terminated :
(1) As a health measure when there is danger to the life or risk
to
physical or mental health of the women;
(2) On humanitarian grounds
- such as when pregnancy arises from a
sex
crime like rape or intercourse with a lunatic woman, etc. and
(3) Eugenic grounds
- where there is a substantial risk that the
child,
if born, would suffer from deformities and diseases.
A woman's right in this respect is doubtful because her right is
dependant on certain conditions: proof of risk to her life or
grave
injury to her physical or mental health, substantial risk of
physical or
mental abnormalities to the child if born and a situation where
abortion
could only save her life, all to be arrived at by the medical
practitioners. Can a woman request a medical practitioner to
perform an
abortion on the ground that she does not want a child at that
time?
Where the liberty of the woman is fully dependant on certain other
factors, such are quest cannot be said to be just and reasonable.
The
M.T.P. Act also does not classify the pregnancy period so that the
woman's interests and the state's interests could be given predominance
in one's own spheres.
It is submitted that a decision as to abortion may be entirely
left with
woman provided she is sane and attained majority. Only in cases
where an
abortion may affect her life, her freedom may be curtailed. All
other
restrictions on the right to abortion are unwelcome. True, a
woman's
decision as to abortion may depend upon her physical and mental
health
or the potential threat to the health of the child. Apart from
these
reasons, there are also various important factors. She or the
family may
not be financially sound to welcome an addition. It may be a time
when
she wants to change her profession, which requires free time and
hard
work. Her relationship with the husband may virtually be on the
verge of
collapse and she may prefer not to have a child from him, for it
may
possibly affect a future marriage. All these factors are quite
relevant
and the Indian statute on abortion does not pay any respect to
them. The
law thus is unreasonable and could well be found to be violative
of the
principles of equality provided under Article 14 of the
Constitution. Is
it desirable to pay compensation to woman for all her physical and
mental inconveniences and liabilities, which arises in that
context.
Finally it may be noted that the M.T.P. Act does not protect the
unborn
child. Any indirect protection it gains under the Act is only a
by-product resulting from the protection of the woman. The rights
provided as well as the restrictions imposed under the statute
show that
the very purpose of the state is to protect a living woman from
dangers
which may arise during an abortion process. It is the protection
to the
mother that protects the unborn.
Case laws in this regard:
D Rajeshwari Vs State of Tamil Nadu 1996 CrilJ 3795
The case, is of an unmarried girl of 18 years who is praying for
issue
of a direction to terminate the pregnancy of the child in her
womb, on
the ground that bearing the unwanted pregnancy of the child of
three
months made her to become mentally ill and the continuance of
pregnancy
has caused great anguish in her mind, which would result in a
grave
injury to her mental health, since the pregnancy was caused by
rape.
The Court granted the permission to terminate the pregnancy.
Dr.
Nisha Malviya and Anr. Vs. State of M.P. 2000CriLJ671
The accused had committed rape on minor girl aged about 12 years
and made her pregnant. The allegations are that two other
co-accused took this girl, and they terminated her pregnancy. So
the charge on them is firstly causing miscarriage without consent
of girl. The Court held all the three accused guilty of
termination of pregnancy which was not consented by the mother or
the girl.
Murari Mohan Koley Vs. The State and Anr. 2003
In this case, a woman wanted to have abortion on the ground that
she has
a 6 months old daughter. She approached the petitioner for an
abortion.
And the petitioner agreed to it for a consideration. But somehow
the
condition of the woman worsened in the hospital and she was
shifted to
another hospital. But it resulted in her death. The abortion was
not
done.
The petitioner who was a registered medical practitioner had to
establish that his action was done in good faith ( includes
omission as
well ) so that he can get exemption from any criminal liability
under
section 3 of the MTP Act, 1971.
Shri Bhagwan Katariya and others Vs. State of M.P. 2000.
The woman was married to Navneet. Applicants are younger brothers
of
said Navneet while Bhagwan Katariya was the father of said Navneet.
After the complainant conceived pregnancy, the husband and the
other
family members took an exception to it, took her for abortion and
without her consent got the abortion done.
The Court opined that if we refer Section 3 of the Medical
Termination
of Pregnancy Act, 1971, a doctor is entitled to terminate the
pregnancy
under particular circumstances and if the pregnancy was terminated
in
accordance with the provisions of law, it must be presumed that
without
the consent of the woman it could not be done. Present is a case
where a
permanent scar has been carved on the heart and soul of the woman
by
depriving her of her child. And the Doctor will be liable.
Thus, the case laws show that a woman has an absolute right to
abortion
and no one can take away this right from her. The Judiciary has
been
playing a vital role in securing these rights to women. Right to
abortion is a fundamental right of privacy.
Right
To Abortion Of The Mother Vs Right To Life Of The Unborn
(Arguments for and against )
Religious, moral, and cultural sensibilities continue to influence
abortion laws throughout the world. The right to life, the right
to
liberty, and the right to security of person are major issues of
human
rights that are sometimes used as justification for the existence
or the
absence of laws controlling abortion. Many countries in which
abortion
is legal require that certain criteria be met in order for an
abortion
to be obtained, often, but not always, using a trimester-based
system to
regulate the window in which abortion is still legal to perform.
In this
debate, arguments presented in favor of or against abortion focus
on
either the moral permissibility of an induced abortion, or
justification
of laws permitting or restricting abortion. Arguments on morality
and
legality tend to collide and combine, complicating the issue at
hand.
Abortion debates, especially pertaining to abortion laws, are
often
spearheaded by advocacy groups belonging to one of two camps. Most
often
those in favor of legal prohibition of abortion describe
themselves as
pro-life while those against legal restrictions on abortion
describe
themselves as pro-choice. Both are used to indicate the central
principles in arguments for and against abortion: "Is the fetus a
human
being with a fundamental right to life"
for pro-life advocates, and, for those who
are pro-choice, "Does a woman have the right to choose whether or
not to have an abortion"
Arguments Against Abortion
Following are the arguments which favour prohibition of abortion
by the
pro-life activists:
· The issue of the fetus' life, which raises the question of
whether one
person's desire for autonomy can extend to ending another's
existence.
· The killing of innocent is a crime and the fetus is also an
innocent
life.
· Many women suffer significant emotional trauma after having an
abortion.
· There is also some evidence that having an abortion may increase
a
woman's risk of breast cancer in later life. Some other
complications
include damage and/or infection to the uterus and the Fallopian
tubes
making a woman infertile. Menstrual disturbances can also occur.
· Aborting fetuses because they may be disabled sends an implicit
message of rejection to people with disabilities.
· Another argument is that an embryo (or, in later stages of
development, a fetus) is a human being, entitled to protection,
from
the moment of conception and therefore has a right to life that
must be
respected. According to this argument, abortion is homicide.
Arguments In Favour
Following are the arguments in favour of legalizing abortion:
· The first argument is of Bodily Sovereignty. Each woman has the
sole
right to make decisions about what happens to her body - no one
should
force her either to carry or terminate a pregnancy against her
will.· Most abortions are carried out on the grounds of safeguarding
the
woman's mental health.
· Other are situations where abortions is done to safeguard the
life of
a fetus, as it would involve risk if pregnancy is carried, it
might
damage the fetus resulting in danger to the life of the mother.
· If abortion is banned, or just more restricted, we would return
to the
days of 'back-street abortions'. In the past this has been
accompanied
by wild claims of the risk to women's health from these
procedures. The
women resort to some unhygienic measures to abort the fetus.
· Act of performing an abortion to save the mother's life when
occurs,
however, the rationale is not that the fetus is seen to have less
value
than the mother, but that if no action is taken both will die.
Aborting
the fetus at least saves the mother's life.
· If suppose abortion is banned, a woman does not want to carry
her
pregnancy, she would carry it and then abandon the new born child.
This
would be more dangerous to the life of the baby. Thus, it is better
to
terminate the pregnancy at an earlier stage.
Although in ancient and primitive times there were widespread
practices
of abortion and infanticide among savage, semi-civilized and even
sophisticated races, the later period provided a better status to
the
unborn children. This is evident from the punishment and
compensation
provided in Old Testament for hurting a pregnant woman. The unborn
was
treated as equal to human being at least for the purposes of its
protection.
But as times have brought about revolutionary changes, each person
has a
right to bodily sovereignty and Human rights instruments protect
such
rights internationally. Thus it becomes important to secure the
right to
abortion to every woman.
Conclusion
The great Tamil Saint Thiruvalluvar said :-
"The touch of children is the delight of the body; the delight of
the
ear is the hearing of their speech".
A mother has got a natural duty to provide the maximum best
possible to
her offspring. However, situations may arise where she indulges in
activities, which injuriously affect the foetus. It may be due to
ignorance, carelessness or acts done willfully. Abortion is an
issue to
be left to the decision of the mother. However, taking viability
of a
legal standard, necessary protection should be provided to the
unborn.
It is also beneficial to the mother, where the state or voluntary
organizations are ready to take care of the unborn. There is no
meaning
in conferring a right to the mother to destroy the foetus. Her
right is
limited to have a termination of pregnancy. It is also said that
delivering 20 million babies annually would be a greater strain on
the
nation?s medical services and economic resources than, say,
performing
one to five million abortions a year.
The law has to take care of the liberty of the mother as well as
the
unborn.
As a hospitable community we should seek ways of providing support
for
lonely and frightened mothers, and for lonely and abandoned
babies. We
need to offer women with unplanned pregnancies as much love and
support
as they require and to assist them in finding compassionate
alternatives
to abortion.
References
· Preamble of Universal Declaration of Human Rights, 1948
· Reddy G.B, "Role of Judiciary in protection of Human Rights Of
Women",
AIR 1999 Journal 148
· Joshi K.C, "Universalisation of Human Rights Of Women", AIR 2001
Journal 59
· Starmer Keir, Human Rights Digest
· Shoits Edwin & Than De Clari, Civil Liberties- Legal principles
of
Individual Freedom, Sweet & Maxwell Publications
· Emmerson Ben & Ashworth Andrew, Human Rights and Criminal
Justice,
Sweet & Maxwell Pulications, 2001, Pg 18-30-34
·
http://en.wikipedia.org/wiki/Roe_v._Wade
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author can be reached at:
manishagarg@legalserviceindia.com /
