lawyers in India

Legalize Abortion In India

Written by: Chandraveer Singh Bhati - 2nd Year B.A.LL.B] KIIT Law School, Bhubaneswar
Constitutional Lawyers in India
Legal Service
  • "There is no freedom, no equality, no full human dignity and personhood
    Possible for women until they assert and demand control over their own bodies and reproductive Process... The right to have an abortion is a matter of individual

    Conscience and conscious choice for the women concerned

    Abortion is defined by the Canadian Intermediate Dictionary as "the deliberate ending of a pregnancy by causing the fetus to be expelled from a woman's womb" Abortion is one of the most controversial ethical issues because it concerns the taking of a human life. Generally, if we look at traditional arguments for and against abortion, we find legal and religious arguments guiding each respectively. When it comes to those who favor abortion, they point to the argument that abortion represents a woman's right to choose whether to continue her pregnancy or terminate it. Pro-Lifers, or anti-abortionists, generally make a religious argument as the spearhead of their collective opposition to abortion. 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 21 of Indian constitution provide right to life and right to privacy and 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 in this case the Court held that a mother may abort her pregnancy for any reason, up until the "point at which the fetus becomes 'viable.'". But the oppositions are still present and people do believe that it should be legally prohibited.

    Many scholars say Abortion is destruction of life of mother as well as unborn child. According to me 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. Another point of moot in the jurisprudence surrounding the right to abortion is that whether the fetus 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 fetus 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".

    2. Research Question
    # Whether a mother has a right to abortion vis a vis the right to life of the unborn
    # Whether the statutory time limit for abortion must be increased from the currently permitted twenty weeks of gestation to twenty four weeks or above?
    A] Whether a mother has a right to abortion vis a vis the right to life of the unborn

    A] Religious Concepts About Abortion:

    # Buddhism: - has its origin in the rejection of any notion of souls; that souls cast spells. Of course, it will hold to the end that a fetus is a life, but it allows abortion to protect the life of the mother.

    # Islamic: - traditions evince some diversity of views; the general trend is clearly against abortion. The 'Hanafi' school of thought is the most flexible in its approach to abortion - it specifies that before the fourth month of pregnancy, an abortion may be induced if the pregnancy poses a threat to the life of a woman's already existing infant.

    # Hindu: - Ideology made an exception, however, when abortion became necessary to save the life of the mother. The Susruta Samhita (Hindu medical text), describes a procedure to induce birth during complications in pregnancy. But the real basis for an anti-abortion attitude in Hindu society stems solely from social goals related to supplying sons for the family and the caste.

    In modern times, India's greatest apostle of nonviolence, Mohandas Gandhi, has written: "It seems to me clear as daylight that abortion would be a crime."
    Right to Life and Personal Liberty is the most precious, sacrosanct, inalienable and fundamental of all the fundamental rights of citizens. Guarantee of Life and Personal Liberty is not only a restraint on the Government but also a part of the cultural and social consciousness of the community. It determines to a great extent the quality of life in the context of individual- State relationship. Our Constitution framers were conscious that people must be protected against misuse of power by the Government. They, therefore, provided for the Fundamental Rights in Part-III of the Constitution where under the guarantee of life and personal liberty, one of the most precious fights, is enshrined in Article 21 of the Constitution. In view of the peculiar circumstances in which our infant democracy was placed, initially the judiciary, the guardian of the Constitution, adopted a cautious

    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 woman has an absolute right to have control over her body, most often known as bodily rights.

    B] Legal provision under MTP Act

    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 MTP Act said that pregnancy can be terminated if:

    # Therapeutic indication: in order to prevent injury to the physical or mental health of the woman.
    # Eugenic indication: in view of the substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to seriously handicap.
    # Humanitarian indication: as the pregnancy is alleged by a pregnant woman to have been caused by rape.
    # Social indication: as the pregnancy has occurred as result of failure of any contraceptive device or method used by married woman or her husband for the purpose of limiting the number of children.
    # 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 termination of pregnancy is to be carried out in a government hospital or at a place approved by the government and two medical practitioners are necessary if the pregnancy is more than 12 weeks but less than 20 weeks duration; for less than 12 weeks one medical practitioner can terminate it.
    # The consent of woman alone is required if she above 18 year of age, but if she is a minor or lunatic, consent of the guardian is necessary.
    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 and also violates her liberty and happiness. The Supreme Court of India 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 .

    C] The Indian Perspective about abortion

    In the beginning India was against abortion as rest of the world because Abortion is severely condemned in Vedic, Upanishad, the later puranic (old) and smriti literature. At last India has legalized abortion in 1971 with certain restriction. Indian law allows only such abortion which is due to the continuance of pregnancy which involves a risk to the life of the pregnant woman or grave injury to her physical or mental health. But according to me the law is made for name sake because the Indian law on abortion will not protect the health of mother whose problem is difficult to recognize within the time period mentioned in the law. India was a pioneer in legalizing induced abortion, or Medical Termination of Pregnancy (MTP) in 1971.

    Yet, after three decades, morbidity and mortality due to unsafe abortion remain a serious problem. There is little public debate on the issue despite several national campaigns on safe motherhood. Instead, discussion on abortion has mainly centered on declining sex ratio, sex-selective abortion and the proliferation of abortion clinics in urban areas. Adding to the problem is that abortion continues to be a sensitive, private matter, often with ethical/moral/religious connotations that sets it apart from other reproductive health-seeking behavior.

    Due to the experience of female feticide cases in the places like Punjab, Haryana, and Rajasthan made Indians to come up with strict law on abortion. Many voices been raised against this law but Indian government is still blindly continuing this law without any change.

    D] Following are the arguments in favor 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.

    F] Indian Government need to change law for abortion and also time limit

    G] Current status of abortion in India

    Every year 6.7 million abortions take place in India but the sad part is that 5.7 millions are illegal. The place and technique used in most of the illegal cases are unsafe and unhygienic,

    "The result is obvious - India has a steep maternal mortality rate of 498 per 100,000 women, which is very high as compared to other countries,

    We are following 38 year old law of abortion which prohibits abortion after 20 weeks, unless under exceptional circumstances such as a threat to the mother's life. The time limit of twenty weeks may be crossed only when the procedure is performed to save the life of the woman. Importantly, pregnancy that results from rape or failure of a contraceptive device between married couples is viewed as causing grave injury to the mental health of the woman. In the Nikita Mehta case court also said the gestational period had progressed much beyond the prescribed period and was past twenty five weeks. Many countries like Canada, Korea, China, Germany, France and several other European countries have comparatively liberal laws on abortion. Canada goes to the extent of not interfering with the issue at all and leaves it entirely to the woman and her physician.

    The woman is perceived as having complete liberty upon her person and the fetus is seen as a part of her body, acquiring the status of a person only after birth. Korea permits abortions till twenty-eight weeks but spousal consent is mandatory for married women. I think the mother has the right to terminate her child if the child faces some complications. In India, legal abortion beyond 20 weeks can only be done in certain circumstances. It's good that the MTP act will be amended in the wake of the Niketa Mehta case. If complications arise either in the mother or the child or some rare disease that the child suffers from, then the legal period needs to be increased to 24 weeks or above. I think that it's a women's choice if she wants to abort the child or not if any disorder is detected in the child. Niketa Mehta's case is an eye-opener; many mothers must have faced similar problems. The government should implement the law as soon as possible. Because Across the world, each and every country follows the 24 week rule for abortion then why should India be an exception? India is progressing in every field then why not Alter our law to determine better health care and facilities for the mother. Extending the weeks for abortion would be a step towards a healthy and a developed society.

    3. Conclusion:-
    The legal regulations have abrogated the women's right to liberty to a great extent, particularly with respect to right to self determination, right to have control over her body and right to abortion. These regulations have created serious inroads into a women's right to life and liberty and it has become nothing more than an illusion. It is, therefore, submitted that females should be given right to have control over their body and consequently right to have or not to have child. The right to abortion should be liberally granted to the women at least up to the first 12 weeks of pregnancy unconditionally. I think the requirement of registration for the purposes of termination of pregnancy Under the MTP Act should also be removed. It is pertinent to mention here that private sector is a major source of health services in Indian and excessive regulation over them induces it not to get registered and hence either the abortion is done through. The back door for a hefty amount or the same is refused.

    This deprives the females of availing best of facilities in the private sector. Furthermore, in spite of ban on pre-natal diagnostic techniques, little progress has been achieved so far. It suggests, therefore, that the implementation of the Act is very poor and that the law lacks social acceptability and no law can work successfully unless it has the social acceptability behind it. The State should, instead of framing regulatory measures on abortion should concentrate in raising the status of women in society especially in the rural India and towards this end special efforts are needed for the education of women. Education is necessary for empowerment of women and only empowered women can achieve equality in status in society which in turn will help to curb the dowry demands. Economic empowerment of women will also reduce the dependence on sons as bread earners and care takers in old age. Measures, both legislative and non-legislative, should be employed to achieve empowerment of women which in turn will reduce female feticide.

    4. References
    1. Kashyap dr. subhash, constitutional law of India, universal law publishing co. pvt. Ltd, part 1, New Delhi, EDITON 2008.
    2. Mathiharan k.\ patnaik k. Amrit , modi medical jurisprudence and toxicology, lexis nexis, twenty third edition, new Delhi, pg 1014 – 1018
    3. Mallick, Justice M.R, Criminal manual, professional book publishers, New Delhi,2009
    4. Reddy G.B, "Role of Judiciary in protection of Human Rights Of Women", AIR 1999 Journal 148
    5. Joshi K.C, Universalisation of Human Rights Of Women", AIR 2001 Journal 59
    6. Sinha R, Bara MM. Maternal mortality in unsafe abortion. J Obstet Gynecol India 001; 51:123-125.
    Sharma JB, Manaktala U, Kumar A, Malhotra M. Complications and management of septic abortions: a five year study. J Obstet Gynecol India 2001;51:74-76
    7. Reddi Rani P, Bupathy A, Balsubramanian S. Maternal mortality due to septic abortion. J Obstet Gynecol India 1996; 46:73-76.
    8. Singh A, Roy H, Dixit P, Manav N, Roy S. Termination of pregnancy by combined intrauterine catheter and laminaria tent. J Obstet Gynecol India 1996; 46:618-623.
    9. Nayak AH, Shah BP, Alwani CM. Extra-amniotic instillation of tablet primprost with ethacridine lactates for termination of second trimester pregnancy. J Obstet Gynecol India 1996; 46:753-758.
    10. V.G. Julie Rajan, "Will India's Ban on Prenatal Sex Determination Slow Abortion of Girls?" Hinduism Today, April 1996,
    11. Government of India. 1971. The medical termination of pregnancy act, Act no.34,
    12. Singh, Susheela. 2006. Hospital admissions resulting from unsafe abortion: estimates from 13 developing countries. Lancet, 368: 1887-92
    13. Deshta, Sunil and Kiran Fundamental Human Right - The Right to Life and Personal Liberty, Deep & Deep, New Delhi, 2003,
    14. Williams, Glanville, Text book of criminal law, universal law publishing co.pvt. ltd. third edition reprint 2009,
    15. Singh, Subash Chandra , "Right to Abortion : A New Agenda", All India Reporter,

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