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How mother can be beta noir of her child, especially of unborn
child?
Woman can give birth to man. This distinct quality places her on
both
advantageous and disadvantageous stance. She has right to
motherhood but
here bone of contention is whether she has right to undergo
abortion.
Here war is between woman, who demands right over her body, and
child,
until now who has not taken birth.
Abortion means
deliberate ending of a pregnancy at an early stage. Abortion is
the subject of strong public debate, especially in the US. Some
people are in favour of abortion; called pro-choice supporters,
they support a woman's right to choose whether to have a baby or
not. On the opposite side are the pro-life campaigners, who
believe in the right to life of the unborn child and think that
abortion is wrong. US law says that abortion is legal during the
first stages of pregnancy. The US government has tried to change
the laws about abortion, but the changes have been disputed by
federal courts and the courts have supported a woman's right to
abortion . In
Roe v Wade
, US Supreme Court decided that abortion is allowed by the
Constitution. In
Roe v Wade
, a US Supreme Court case (1973) which ended in a decision making
it legal to have an abortion, judges said that a state must allow
any woman, if she wishes, to have an abortion within the first
three months after she becomes pregnant. The decision divided US
society and caused a lot of discussion all over the country. And
still this issue is a bone of contention there, as it is evident
from various activities still going on at various places in U.S.
But as far as India is concerned, there are many statues, which
deal with this point. Now we enumerate Indian law to ascertain
stance from both sides i.e. mother and unborn child. Section 312
of the INDIAN PENAL CODE, 1860 causes miscarriage punishable. It
says:
312.
Causing miscarriage.
- whoever causes a woman with child to
miscarry, shall, if such miscarriage be not caused in good faith
for the
purpose of saving the life of the women, be punished with
imprisonment
of either description for a term which may be extend to three
years, or
with fine, or with both; and if the woman quick with child, shall
be
punished with imprisonment of either description for a term which
may
extend to seven years, and shall also be liable to fine.
Explanation.
- A woman who causes herself to miscarry is within the meaning of
this section.
Section 312
punishes the person who causes the miscarriage to women.
Explanation appended to provision clarifies that women has no
right to miscarry herself. The word
miscarriage is used synonymously with
the
word ?abortion?. Section 312 gives the right of motherhood to
woman and
provides ample protection to this right but simultaneously takes
away
the right of abortion to the woman; it means she herself has no
right
over her body. It's not only question of right of woman over her
body
because a question of right to life of child in woman's womb also
arises. There is a clash between right to life of unborn child and
right of women over her body i.e. right of abortion. This issue
also raises one more issue
when life begins- it could be immediately after
the egg
is fertilized; when the foetus gets a soul; when the foetus can
live
independently outside the mother, or when the mother delivers the
baby.
But according to Jeffrey M. Drazen, (Editior-in-Chief of The New
England
Journal of Medicine) When life begins, is a philosophical
question. As
aforesaid, in U.S abortion at the beginning of pregnancy is not
punishable but there is no distinction in India on such basis
except in quantum of punishment: as Section 312 prescribes up to
three years imprisonment or fine or both for causing the
miscarriage a
woman
with
child and up to seven years and also liable to fine for causing
miscarriage to women quick with child.
The meaning of
the words ?woman with child
simply means a pregnant woman. The moment a women conceives and
the gestation period or the pregnancy begins, then a woman is said
to be with child. The term
quick with child refers to a
more
advanced stage of pregnancy. Quickening is the perception by a
mother
that the movement of the foetus has taken place or the embryo has
taken
place or the embryo has taken a foetal form.
But question arises about the right of unborn child when life of
woman
is in peril due to that pregnancy. Law can be cruel little bit but
not
absolutely: as section allows abortion in good faith for the
purpose of
saving the life of the woman. Right of abortion is further
extended by
The Medical
Termination Of Pregnancy Act. The Statement of
Objects
and Reasons of
The Medical
Termination Of Pregnancy Act, 1971 are:
The provisions regarding the termination of pregnancy in the
Indian
Penal Code which were enacted about a century ago were drawn up in
keeping with the then British Law on the subject. Abortion was
made a
crime for which the mother as well as the abortionist could be
punished
except where it had to be induced in order to save the life of the
mother. It has been stated that this very strict law has been
observed
in the breach in a very large number of cases all over the
country.
Furthermore, most of these mothers are married women, and are
under no
particular necessity to conceal their pregnancy.
2. In recent years, when health services have expanded and
hospitals are
availed of to the fullest extent by all classes of society,
doctors have
often been confronted with gravely ill or dying pregnant women
whose
pregnant uterus have been tampered with, a view to causing an
abortion
and consequently suffered very severely.
3. There is thus avoidable wastage of the mother's health,
strength and,
sometimes, life. The proposed measure which seeks to liberalise
certain existing provisions relating to termination of pregnancy
has been conceived (1) as a health measure when there is danger to
the life or risk to physical or mental health of the woman; (2) on
humanitarian grounds such as when pregnancy arises from a sex
crime like rape or intercourse with lunatic woman, etc., and (3)
eugenic grounds Where there is substantial risk that the child, if
born, would suffer from deformities and diseases.
So, it obvious
The Medical
Termination Of Pregnancy Act, 1971
is made in favour of mother and as well as in favour of unborn
child. It put forth the principal that
death is
better than sufferings:
as Act allows killing of child in mother's womb, where there is
substantial risk that the child, if born, would suffer from
deformities and diseases. THE MEDICAL TERMINATION of PREGNANCY
ACT, 1971 allows, on fulfillment of certain conditions, at the
initial stage of pregnancy, if continuance of the pregnancy would
involve a risk to the life of the pregnant woman or of grave
injury to her physical or mental health or there is substantial
risk that if the child born, it would suffer from such physical or
mental abnormalities as to be seriously handicapped. Section 3 of
The Medical
Termination Of Pregnancy Act, 1971:
3. When pregnancies may be terminated by registered medical
practitioners.-
(1) Notwithstanding anything contained in the Indian Penal Code
(45 of
1860) a registered medical practitioner shall not be guilty of any
offence under that code or under any other law for the time being
in
force, if any pregnancy is terminated by him in accordance with
the
provisions of this Act.
(2) Subject to the provisions of sub-section (4) a pregnancy may
be
terminated by a registered medical practitioner,?
(a) Where the length of the pregnancy does not exceed twelve
weeks, if
such medical practitioner, is, or
(b) where the length of the pregnancy exceeds twelve weeks but
does not
exceed twenty weeks, if not less than two registered medical
practitioners are, of opinion formed in good faith, that?
(i) the continuance of the pregnancy would involve a risk to the
life of
the pregnant woman or of grave injury to her physical or mental
health;
(ii) there is a substantial risk that if the child were born it
would
be suffer form such physical or mental abnormalities as to be
seriously
handicapped.
Explanation 1.-
Where any pregnancy is alleged by the pregnant woman to have been
caused by rape, the anguish caused by such pregnancy shall be
presumed to constitute a grave injury to the mental health of the
pregnant woman.
Explanation 2.
- Where any pregnancy occurs as a result of failure of any device
or method used by any married woman or her husband for the purpose
of limiting the number of children, the anguish caused by such
unwanted pregnancy may be presumed to constitute a grave injury to
the mental health of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would
involve
such risk of injury to the health as is mentioned in sub-section
(2)
account may be taken of the pregnant woman's actual or reasonably
foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of
eighteen years, or who having attained the age of eighteen years
is a
mentally ill person, shall be terminated except with the consent
in
writing of her guardian.
(b) Save as otherwise provided in clause (a) no pregnancy shall be
terminated except with the consent of the pregnant woman.
Rape victims are empowered to undergo abortion under the said Act
to
prevent further worsening of trauma. Explanation appended to
Section 3
(2) tells that the married couple is vested with right to get rid
of
unwanted pregnancy if it takes place due to failure of any
contraceptive. But any exemption under the last said can be
availed only
on fulfilling of conditions and procedure laid down in section 3,
section 4 and rules & regulations made under the act. Section 4
enumerates the places where pregnancy can be terminated. It says:4. Place where pregnancy may be terminated. - No termination of
pregnancy shall be made in accordance with this act at any place
other
than-
(a) a hospital established or maintained by government, or
(b) a place for the time being approved for the purpose of this
act by
government or a District Level Committee constitute by that
government
with the Chief Medical Officer or District Health Officer as the
Chairperson of the said committee.
Provided that the District Level Committee shall not consists of
not
less than three or not more than five members including the
Chairperson,
as the Government may specify from time to time.
Section 312 of IPC allows abortion in good faith for saving the
life of
women. Indian Penal Code does not describe any qualification for
abortionist but Section 3 of
The Medical
Termination Of Pregnancy Act,
1971 tells that abortion can be done by registered medical
practitioner
only. Registered medical practitioner is defined under section 2
(d) of
act which says:
2 (d)
"registered medical practitioner" means a medical
practitioner who
possesses any recognised medical qualification as defined in
clause (h)
of section 2 of the Indian Medical Council Act, 1956 (102 of
1956),
whose name has been entered in a State Medical Register and who
has such
experience or training in gynaecology and obstetrics as may be
prescribed by rules made under this Act.
Abortionist has also to fulfill the conditions experience or
training in
gynaecology and obsterics as may be prescribed by rules made under
the
Act. Rule 4 of The Medical Termination of Pregnancy Rules, 2003
lays
down the same which is as follow:
4. experience and training under clause (d) of section 2.- for the
purpose of clause (d) of section 2, a registered medical
practitioner
shall have one or more of the following experience or training in
gynaecology and obstetrics, namely:-
(a) in the case of a medical practitioner, who was registered in a
state
medical register immediately before the commencement of the Act,
experience in the practice of gynaecology and obsterics for a
period of
not less than three years
(b) in the case of a medical practitioner, who is registered in a
State
Medical Register:-
(i) if he has completed six months of house surgency in
gynaecology and
obsterics; or
(ii) unless the following facilities are provided therein, if he
had
experience at any hospital for a period of not less than one year
in the
practice of obsterics and gynaecology; or
(c) if he has assisted a registered medical practitioner in the
performance of twenty five cases of medical termination of
pregnancy of
which at least five have performed independently in a hospital
established or maintained, or a training institute approved for
this
purpose by government.
(i) This training would enable the registered medical practitioner
(RMP)
to do only Ist trimester terminations (up to 12 weeks of
gestation).
(ii) For terminations up to twenty weeks the experience or
training as
prescribed under sub-rules (a), (b) and (d) shall apply.
(d) in case of a medical practitioner who has been registered in a
state
medical register and who holds a post-graduate degree or diploma
in
gynaecology and obstetrics, the experience or training gained
during the
course of such degree or diploma.
The Medical Termination of Pregnancy Act, 1971 does not prescribe
any
punishment for women but it does not spare the person who performs
abortion in violation of provisions of the Act. Section 5 says:
5. Sections 3 and 4 when not apply.-(1) The provisions of section
4, and
so much of the provisions of sub-section (2) of section 3 as
relate to
the length of the pregnancy and the opinion of not less than two
registered medical practitioners, shall not apply to the
termination of
a pregnancy by a registered medical practitioner in a case where
he is
of opinion, formed in good faith, that the termination of such
pregnancy
is immediately necessary to save the life of the pregnant woman.
(2) Notwithstanding anything contained in the Indian Penal Code
(45 of
1860), the termination of pregnancy by a person who is not a
registered
medical practitioner shall be an offence punishable with rigorous
imprisonment for a term which shall not be less than two years but
which
may extend to seven years under that code, and that code shall, to
this
extent, stand modified.
(3) Whoever terminates any pregnancy in a place other than that
mentioned in section 4, shall be punishable with rigorous
imprisonment
for a term which shall not be less than two years but which may
extend
to seven years.
(4) any person being a owner of a place which is not approved
under
clause (b) of section 4, shall be punishable with rigorous
imprisonment
for a term which shall not be less than two years but which may
extend
to seven years.
Explanation 1.-
For the purposes of this Section, the expression ?owner? in
relation to a place means any person who is administrative head
and otherwise responsible for working or maintenance of a hospital
or place, by whatever name called, when pregnancy may be
terminated under the Act.
Explanation 2.- For the purposes of this Section, so much of the
provisions of clause (d) of section 2 as relate to the possession,
by a
registered medical practitioner of experience or training in gynaecology
and obstetrics shall not apply.
Section 5 punishes the abortionist but it also put woman on peril
because nobody would like to take risk of prosecution and in most
of
cases he/she will avoid the performance. But some relief is given
to
RMPS, as section 8 of Act says:
8. Protection of action taken in good faith. - No suit or other
legal
proceedings shall lie against any registered medical practitioner
for
any damage caused or likely to be caused by anything which is in
good
faith done or intended to be done under this Act.
Medical Termination of Pregnancy Regulations, 2003, enacted by
virtue of
section 7 of the Act, require doctors to fulfill some more
conditions.
In India abortion take place not for exercising the right over
body but
to get rid of girl child. Hatred for girl child in India does not
mandate any special explanation here: as everybody would be
acquainted
with the stance. The national figure of 933 women against 1,000
men
(2001 census) further substantiates the same. In some states like
Punjab, which is also considered as one of the most prosperous
states,
conditions are worst: as there are 874 women against 1000 men. In
India
the prevailing practice is that after determining the sex through
modern
techniques if the child is found to be girl then she is killed in
mother's womb only. That's why unborn child, especially girl
child, is
given special protection through
Pre-
Conception And Pre-Natal Diagnostic Techniques (Prohibition Of Sex
Selection) Act, 1994.
The Act
prohibits the sex determination due to which unborn girl child can
be
protected.
Female foeticide is so rampant in India due to which woman is not
bereft
of right to abortion only but also prevents from knowing sex of
child in
womb: as
Pre-
Conception And Pre-Natal Diagnostic Techniques (Prohibition Of Sex
Selection) Act, 1994 prohibit pre-natal test.
Abortion is prohibited in almost all the countries because no body
has
right to take anybody else?s life, even to his/her mother. As far
question of relevance of anti-abortion law in today's India, it is
not
difficult to say that anti-abortion laws are need of the hour
because it
exercises the check over female foeticide and declining sex ratio.
No
doubt there can be arguments in favour of women for his right over
her
body but there is no room for advancing such arguments in
prevailing
conditions in India.
Evil of female foeticide is not creation of
tomorrow but lies in root of Indian society and worsening day by
day due
to which Indian judiciary has also to come forward to control
practice.
In Vinod Soni & Anr. v. Union of India Mumbai high court rejected
the
argument of unconstitutionality of
Pre-
Conception And Pre-Natal Diagnostic Techniques (Prohibition Of Sex
Selection) Act, 1994, on
the
basis of right to privacy. It is noteworthy to mention that in Roe
v.
Wade , the apex court of U.S declared the anti-abortion law
unconstitutional on the basis of right to privacy. Reversely
Indian apex
court mounts the pressure on govt. for strict application of
anti-abortion laws. Due to hatred for girl child, the right of
woman
over her body does not hold much weight in India. So, the Scale of
Justice in India tips in favour of unborn child.
|
law
in India on.....Mother v. En Ventre Sa Mere
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The
author can be reached at: vikaslegalindia@legalserviceindia.com /
