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Balancing the Rights: Exploring the Conflict between the Right to Abortion and the Right to Life

Human rights are rights inherent to all human beings irrespective of race, sex, religion, ethnicity, language, nationality or any other status. Human rights include the right to life and liberty, freedom from slavery, freedom of speech and expression, right to education and work and many more. Each individual is entitled to these rights without discrimination. The most important human right is the right to life and liberty. But there are some inflammatory issues related to this right. One such issue is the right to abortion. Abortion is one of the most controversial and inflammatory topics around the world.

Usually debates about abortion focus on politics and legal aspects whether abortion should be legalized and it should remain a free choice which is available to all women or should it be outlawed and treated in the same manner as murder of a human. Abortion laws vary from country to country. In some countries, abortion is altogether prohibited while most countries in Europe offer safe and legal abortion and in some countries, abortion depends upon the gestation period. The debate today is whether a mother has the right to abortion vis-a-vis the right to life of the unborn child.

What is abortion?

Abortion is the deliberate termination of pregnancy before the foetus is able to sustain itself independently. It is of two kinds:
  • Medical abortion involves terminating the pregnancy with the help of pills and medicines, a woman who is less than seven weeks pregnant can undergo a medical abortion under the supervision of a physician.
  • Surgical abortion; if a woman wishes to undergo an abortion beyond seven weeks of the gestation period, she can undergo a surgical abortion.
In countries where abortion is considered illegal women are compelled to unsafe abortions. Preventing girls and women from having an abortion does not mean they don't need it. Banning or restricting abortions does not reduce abortions, it only forces people to seek out unsafe abortions. An estimated 25 million unsafe abortions take place every year. Unsafe abortions are the third leading cause of maternal deaths worldwide as they have fatal consequences.

Deaths are common in countries where access to safe abortion is limited or prohibited completely as a majority of women and girls who seek abortion because of unwanted pregnancy are not able to legally access one. Forcing someone to carry an unwanted pregnancy is a violation of their human rights. Access to abortion is thus linked to protecting and upholding the human rights of women and girls and therefore achieving social and gender justice.

Indian laws allow abortion if the pregnancy involves risk to the life of the pregnant woman or a grave injury to her physical or mental health. After Shah Committee's recommendations, the Medical Termination of Pregnancy Act was drafted and passed by the parliament in 1971. This act enabled women to terminate an unintended pregnancy by a medical practitioner. The intention behind this law was to make legalized abortions easier under specific circumstances. It allows for pregnancy termination by a qualified and recognized medical practitioner.

Medical Termination of Pregnancy Act, 1971

According to section 3 of this Act, pregnancy can be terminated:
  • Where the gestation period has not lasted longer than 12 weeks
  • Where the duration of pregnancy has exceeded 12 weeks but not 20 weeks; assessment by 2 registered doctors is required
  • When there is a probability that the unborn child will suffer from mental and physical disabilities
  • The pregnancy involves risk to the life of the pregnant woman or a grave injury to her physical or mental wellbeing

According to section 2(d) of the act´┐Ż "a registered medical practitioner is a medical practitioner who possesses the required medical qualifications which are defined under section 2 of the Indian Medical Council Act of 1956 and whose name is registered in the state medical register"

A woman's right in this regard is doubtful because her right is dependent on certain conditions: a situation where only abortion could save her life, there is evidence of risk to her life or grave injury to her mental or physical health, risk of physical or mental abnormality to the child, all these factors are to be determined by medical practitioners.

The act had many shortcomings. Apart from all these factors, there are other prominent factors which the act does not pay attention to. Her relationship with her husband may be unstable or on the verge of collapse, she may not be financially stable to welcome the child, and she may not be in the mental space to bring the child into the world. These factors are relevant but the act does not consider them. Due to these shortcomings, an amendment was introduced in 2002 and 2021.

Under the Medical Termination of Pregnancy Amendment Act, of 2002 the term "lunatic" was amended to "mentally ill person" to deal with psychological illnesses that did not amount to mental disabilities. At the district level, a committee was set up which was responsible for deciding whether to allow private institutions abortion services or not. Harsh penalties were awarded if abortion services did not comply with the provisions of the Act.

With technological advancement and innovation, there was a need for better laws which was fulfilled by the Medical Termination of Pregnancy Amendment Act, of 2021.
According to this act:
  • Only one medical practitioner is required to terminate a pregnancy with a gestation period of 20 weeks.
  • The act includes a special classification of women such as rape victims, specially-abled women, girls younger than 18 years, and survivors of incest.
  • The act enhances the gestation period for terminating a pregnancy from 20 to 24 weeks.
  • The act seeks to protect the privacy and confidentiality of women who wish to terminate their pregnancies.
  • The act allowed for the termination of pregnancy of women who are unmarried and are in relationships. The phrases "married woman and her husband" have been amended to "woman and her partner".
Case Laws
Dobbs v. Jackson Women's Health Organization is a landmark decision in which the U.S. Supreme Court overruled both Roe Vs Wade, 1973 and Planned Parenthood Vs. Casey, 1992. The Mississippi Legislature passed the Gestational Age Act in 2018 which restricted abortion and banned any abortion after the first 15 weeks of pregnancy, with an exception for medical emergencies or severe fetal abnormality. It did not bring into consideration cases of rape or incest. Jackson Women's Health Organization which was Mississippi's only abortion clinic sued state official Thomas E. Dobbs to challenge the Act's constitutionality.

The court held that the Constitution of the United States does not confer a right to abortion. The court then established that abortion was not deeply rooted in the Nation's history and traditions and gave individual states the autonomy to regulate any aspect of abortion. The judgement was supported by those who aligned with the United States anti-abortion movement including the National Right to Life Committee. It was opposed by United States abortion-rights movements which also included President Joe Biden and former president Barack Obama.

Roe v. Wade (1973) is one of the most significant Supreme Court decisions in history. The Supreme Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision abrogated many state and federal abortion laws. Jane Roe instituted a federal action against Henry Wade, the district attorney of Dallas, Texas where Roe resided. Roe challenged the constitutionality of the Texas criminal abortion laws which prohibited attempting an abortion except on medical advice for the purpose of saving the mother's life. The Court stated that the Constitution of the United States provides a fundamental "right to privacy", which protects a pregnant woman's right to abortion. The Court held that the right to abortion was not absolute.

The Court held that there must be a balance between the State's varying interests in the health of pregnant women and the potential life of the foetus. The Court announced a pregnancy trimester timetable to govern abortion regulations and to resolve these competing interests.

Murugan Nayakkar vs. Union of India and Others. the petitioner who was a 13-year-old girl and a victim of alleged rape and sexual abuse had appealed for the termination of her pregnancy. The Apex Court allowed the termination of the 32 weeks old pregnancy. The court held that "the court takes into consideration the age of petitioner, the trauma which she suffered because of sexual abuse, her mental state and the agony that she was going through and above all report of the Medical Board and allows for termination of her pregnancy."

Mrs X and Others. vs Union of India:
The Supreme Court allowed for the termination of a 22-week-old pregnancy. The Court held that "a woman's right to make reproductive choices is also an aspect of her "personal liberty" under Article 21 of the Constitution and the right to bodily integrity allows her to terminate her pregnancy. The Court allowed for termination after the Medical Board opined that allowing the pregnancy to continue could gravely endanger the woman's physical and mental health.

Dr. Nisha Malviya and Anr. v/s State of M.P:
The girl was the victim of rape which was committed by the accused. The allegations were that two other co-accused took her and forcibly terminated her pregnancy. The charge on them was for causing miscarriage without the consent of the girl. The Court held that all three accused were guilty of termination of pregnancy which was not consented by the parents of the girl or the girl herself.

Shri Bhagwan Katariya and Others v/s State of M.P:
In this case, after the complainant conceived pregnancy, the husband and other family members took her for abortion and without her consent got the abortion done. The Court held the doctor liable and opined if, in reference to section 3 of the Medical Termination of Pregnancy Act, 1971, a doctor is entitled to terminate the pregnancy under particular circumstances. If a pregnancy is terminated without the consent of the woman, it is presumed that it is not in accordance with the provisions of the concerned law.

Rajeswari v/s State of Tamil Nadu and Others:
The Court granted the permission to terminate the pregnancy caused by rape to an unmarried girl of 18 years on the ground that bearing the unwanted pregnancy of the child of 3 months made her become mentally ill. The continuance of this pregnancy was causing her great anguish, relating to a great injury to her mental health.

Suchita Srivastava and Anr v/s Chandigarh Administration: An orphaned woman with mental retardation got impregnated as a result of rape. Without the woman's agreement, the Punjab and Haryana High Court concluded that the pregnancy should be aborted under Section 3 of the Medical Termination of Pregnancy Act, 1971 as she lacked the capacity to care for a child and had no guardian to look after her.

The Supreme Court overruled the Punjab and Haryana High Court decision, ruling that the right to reproductive choice is derived from Article 21 of the Constitution. It was determined that an abortion without her consent could not be authorised. The Court ruled that only the woman's consent or her guardian's consent if she is mentally ill or is a minor is material.

Critical Analysis
Throughout the world, abortion rights are influenced highly by cultural and religious sensibilities. Those in favour of the prohibition of abortion describe themselves as 'pro-life' and believe that foetus is a human being who has a fundamental right to life, while those against restrictions on abortion describe themselves as 'pro-choice' and believe in body sovereignty. Both groups indicate central principles in arguments for abortion debates. The dilemma is whether the foetus is a human being and has a fundamental right to life or does the woman has a right or not to undergo an abortion.

Arguments which favour the prohibition of abortion and deem it as homicide concern:
  • The issue of the foetus's life, raises the question of whether one person's desire for autonomy can extend to ending another's existence.
  • The killing of an innocent is a crime and the foetus is also an innocent life.
  • Many women suffer significant emotional trauma after having an abortion.

  • A foetus is a human being, entitled to protection, from the movement of conception and therefore has a right to life that must be respected.
  • Each woman has the sole right to make decisions about her body, no one should force her to carry or terminate a pregnancy.
  • If abortion is banned, we would return to days of backstreet abortions. The women resort to unhygienic measures to abort the foetus.
  • Act of performing an abortion to save the mother's life when occurs, however, the rationale is not that the foetus is seen to have less value than the mother, but that both will suffer if no action is taken.

  • If suppose abortion is banned, a woman does not want to carry her pregnancy, she would carry it and then abandon the newborn child. This would be more threatening to the well-being of the child.

A mother has a natural duty to provide the maximum best possibility to her offspring. However, situations may arise when she indulges in activities, which injure the foetus. It may be due to carelessness, ignorance or acts done willingly. Abortion is a choice which must be made available to all mothers. However, necessary protection should be provided to the unborn.

It is also beneficial to the mother where the state or other organisations are ready to take care of the unborn. A woman's right is limited to her termination of pregnancy. We should seek ways of providing support for lonely and frightened mothers and for lonely and abandoned children. Women with unplanned pregnancies need our support and love. We must hear them and aid them in finding other compassionate alternatives to abortion.

Award Winning Article Is Written By: Ms.Deepali Tilwani
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Authentication No: JU352949933451-12-0623

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