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Abortion Laws in India

Abortion till date has been one of the most controversial matters in the arena of biomedical ethics. It is a subject that has been heavily discussed around the world and holds extremely divergent opinions as far its legality is concerned. The question surrounding this matter is whether it falls under the purview of the Indian Constitution or has it failed to meet the criteria of being recognised as a fundamental right. In the Indian Penal Code, 1860, abortion, which is stated as Causing Miscarriage is considered as a punitive offence. It pertains to a ‘woman who causes herself to miscarry’. Among many other rights that women have been granted in India, Right to Abortion must be given as equal weight as the Right to conceive a child and get pregnant.

The Right to Abortion certainly falls under the purview of Article 21 of the Indian Constitution as does the Right to live with dignity and make free choices unless they interfere with the current procedure of law. Article 21 of the Indian Constitution ensures that every person within the national territory of the Indian nation is guaranteed with the Right to life and Personal liberty except according to procedure established by law. In the case of abortion, the woman equally enjoys the Right to life and make free choices upon what she wants to do with her body, as any other citizen of India. Moreover, subscribing to a major scientific belief, a foetus isn’t an actual human being. It has a potential of being a human being but it actually isn’t. Bringing into picture J.S. Mill’s element in his ‘Essay on Liberty’, abortion, is however, a self-regarding action.

Women like unaware teenagers, sex workers, the ones who’re carrying babies with abnormalities or women whose contraceptive methods took a wrong turn are the main target groups in this area. Abortion has to be legalised under the Indian Constitution for these specific groups.

Laws governing abortion in India

The Indian Penal Code, 1860

The Indian Penal Code, 1860, taking into consideration the social, emotional and medical implications of abortion, declares induced abortion as illegal all throughout India. Section 312 of the Indian Penal Code, 1860 spells out abortion as causing miscarriage. It applies to a woman who carries out miscarriage on purpose. However, the word abortion is nowhere used in this section. Abortion would give miscarriage an essence of intention. Miscarriage technically would mean spontaneous abortion, whereas, voluntarily causing miscarriage, which is criminalised under Section 312, will stand for criminal abortion. A clear division among the two is lacking. However, the same section declares Therapeutic abortion as legal. In case there is danger pertaining to the life of the mother, the pregnancy can be discontinued. The unborn child in the womb must not be destroyed unless the destruction is for the sole purpose to preserve the life of the mother.

Medical Termination of Pregnancy Act, 1971

The Medical Termination of Pregnancy Act, 1971 further talks about the situations where a therapeutic abortion can be carried out by a registered medical practitioner. The act highlights in what situations can a pregnancy be terminated, the stipulated time such a pregnancy will be terminated, in what place will this termination take place, and who is authorised to conduct such a termination.

According to the act, a pregnancy can only be terminated under a few circumstances, such as, in situations where the continuation of a pregnancy would involve risks to the life of the mother, or involve grave physical or mental injury to the woman. The act also spells out voidable pregnancies such as in case of a lunatic woman. Further, the act specifies who is a registered medical practitioner and in what place will the termination of the pregnancy be carried on. The act also states that the pregnancy can be terminated in 12 weeks of pregnancy and the opinion of two or more medical practitioners is required if the abortion is done between 12-20 weeks for various reasons. [1]

The Act does not permit discontinuation of pregnancy after 20 weeks. Medical opinion, as stated by the act, must be given in good faith. The term good faith is not described in the concerned Act, but in the IPC,1860, good faith means an act to be done in due care and caution.

The Constitution of India

Though ambiguous and unclear, the Constitution of India also talks about the idea of abortion. As stated before, the Right to abortion might come under the Article 21, if subjected to interpretations. Article 21 dictates the Right to life and personal liberty. It can also be understood that a woman, who has been given such a right, might enjoy her personal liberty and alter her body in any way she can. She might do anything to her body, to suit
Laws governing abortion beyond India

United States of America

The women in the Unites States of America did not always have the privilege to abort their children; in fact, it came only in the year 1973 as a Supreme Court decision in the case Roe v. Wade in Texas. In this landmark case, an unmarried, pregnant woman in Texas, Norma McCorvey, who is also the plaintiff, sought an abortion. But, she was denied under Texas abortion laws. She then filed a federal lawsuit under the pseudonym Jane Roe, challenging the Texas law as unconstitutional. Roe began to argue that the Texas abortion law which is denying her of carrying on with her abortion is encroaching upon her right to privacy and that particular law should be looked upon.

The Court, in a 7-2 majority agreed upon Roe’s idea but however, declared that the states’ only objective here is to protect the pregnant woman and the potential human life. The Court held that the foetus is not a human being that could be protected by the Constitution and thus, legalised abortion. The Court declared that abortion cannot be done in the third trimester, because the function of the state as a protector of the pregnant woman and the unborn child would outweigh the woman’s right to privacy.

In another landmark case that followed, Planned Parenthood v. Casey, the Supreme Court struck down the essence of spousal consent in situation of abortion. The idea of a spousal consent would only tie women down further, and its considered as an undue burden that prevents women from seeking abortion.

The successive landmark cases like Gonzales v. Carhart and Whole Woman’s Health v. Hellerstedt further respected the stand of women and removed all the lacunas and limitations on women’s access to abortion.

United Kingdom

Abortion in the United Kingdom is guided under the Abortion Act, 1967. The Act allows for therapeutic abortion for up to 24 weeks. However, if there is a substantial risk to the health of the pregnant woman or if there are any foetal abnormalities, there is no time limit. For an abortion to be conducted, the view of one or more licensed, registered doctors is taken into consideration, to examine if there are any valid medical grounds to continue with the abortion. However, in practice, it is ensured by the Department of Health, that the doctors sanction abortions without genuine medical grounds, where there is a presence of other genuine reasons.

A Comparative Analysis
The abortion laws in USA and UK are far more different and divergent than the laws in India. In the United States, the laws are more woman-centric. A woman’s right to privacy is given more weight than the mere society.[2] The Supreme Court held that an abortion can be conducted before the third trimester of the pregnancy. The third trimester is when the foetus starts feeling pain, and starts advancing. In the third trimester, the function of the State as a protector of the pregnant woman and the unborn child will outweigh the personal liberty and privacy of the pregnant woman. But in India, the ultimate power is held by the medical practitioners, who are to sanction the abortion in good faith.

But that leaves a lot of room for misuse of such power. An abortion can be conducted within 12 weeks of pregnancy and from within 12 to 20 weeks with the medical opinion of two medical practitioners. Here, the woman’s access to abortion will be limited. Abortion in India is not seen as a right. It is only seen as something which can be sanctioned by the superior medical practitioners in cases where there is substantial risk to the woman’s health. A woman cannot, however, discontinue a pregnancy due to any other grounds, other than medical.

There are certain target groups who seek abortion more than ever, like unaware teenagers, sex workers, rape victims and people who prefer the male child over female. There is no point in continuing with a pregnancy, where the mother is unwilling to accept the child. In cases where the parents seek a male child, the life of the female child is rather tormenting.

The child is devoid of all care and nutrition because the parents were more prepared to supply for a male child, and not a female child. In cases where the mother of the child is a rape victim, or an unaware teenager, continuing with the pregnancy will only cause undue pressure on the mental or physical health of the mother. The mother won’t be able to accept the child in the dawn of the society and thus will be subjected to social boycott, which would further trickle down the mother’s mental peace.

In the United Kingdom, the reported abortions have been done on grounds other than medical, which suggest us the idea that the Health Department of the country focuses on sanctioning as much abortions so as to preserve the physical and mental health of a woman. In India, people fail to understand the privacy of a woman.

They fail to understand that the woman, even if pregnant, is still the sole decision-maker of what she wants to do with her own body. Whether she wants to nurture the unborn child, or not, is solely her decision and no one else’. The laws made in India are an encroachment to her right to life and personal liberty, right to dignity and the right to privacy. However true it might be that legalising abortion would lead to misuse of such a law, but it is rather easier to abort the unborn child than to ruin their life when they are born and grown.

Suggestion and Conclusion
When comparing the abortion laws of USA, UK and India, the researcher found out that the laws in India are not liberal enough for a woman, and thus give woman limited rights upon her body. India, at this point of time, should take a woman’s opinion into consideration and thus make such liberating laws that allow a woman to make free and liberal choices upon what she wants to do with her body. The status of an unborn child is nowhere recognised under any Indian statute. The State should protect the life of a woman, that should be a priority but, also at the same time, not deny her, her basic right. Further, emphasis should be placed into proving that the Right to abortion comes under Article 21 of Indian Constitution.

Bibliography-
Books:
· Visaria, Leela, Abortion in India, Ground Realities (Routledge, 2007) New Delhi and London
· Dworkin, Ronald, Justice for Hedgehogs (Harvard University Press, London 2011)
· Dworkin, Ronald, Freedom’s Law, The moral reading of American Constitution, 90 (Oxford University Press ed, 1999)
· Bajpai, Anju, P K Bajpai, Female Criminality in India

Articles:
· http://www.thehindu.com/opinion/lead/A-tricky-debate-on-abortion/article14547721.ece
· http://www.legalserviceindia.com/articles/adoption.htm

1. The continuance of pregnancy would be a risk to the life of the pregnant woman
2. A risk of grave injury to her physical or mental health
3. If the pregnancy is caused by rape
4. If there exists a substantial risk that, if the child were born, it would suffer from physical or mental abnormalities.
5. Failure of any device or method used by the married couple for the purpose of limiting the number of children
6. Risk of health of pregnant woman by the reason of her actual or reasonably foreseeable environment
7. Roe V. Wade, 410 US 113 (1973)

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