Constitutional laws in India

Right to Abortion

Written by: Manisha Garg - Student, NLIU
Abortion Lawyers in India
Legal Service
  • 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. Rajeswari vs State Of Tamil Nadu And Others
    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:
    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 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: Abortion without mothers consent 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.

    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.


    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

    Related Articles:
    Legalizing Abortion: A women’s right to terminate her pregnancy against the belief that life begins as conception hence abortion is a murder. The moral and legal aspects of abortion are subject to intense social debate in many parts of the world.

    Right of Abortion v. Child in Mother's Womb: 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.

    Legalize Abortion In India: 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

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