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Changes In The International Abortion Laws In The 21st Century

"No woman can call herself free who does not own and control her body. No woman can call herself free until she can choose consciously whether she will or will not be a mother."- Margaret Sanger
Founder, American Birth Control League (ACBL)

Over a century ago, abortion was made a crime across the world. The mother, as well as the abortionist, could be punished in all cases except where abortion had to be induced to save the life of the mother. At the dawn of the 21st century, some countries began to recognize the equal status of women, while other countries began to appreciate the dangers of unsafe abortion leading to the liberalization and enactment of new abortion laws.

What Is Abortion?

Legally, abortion means the premature expulsion of the foetus from the mother's womb at any time of pregnancy, before the full term of pregnancy is completed.

The word miscarriage is often used as a synonym with and equivalent to abortion. Miscarriage signifies, in the strict medical sense, the expulsion of the foetus from the womb within the first six weeks after conception. Spontaneous abortion (also known as miscarriage) is the expulsion of an embryo or foetus due to accidental trauma or natural causes before approximately the 24th week of gestation.[1]When abortion is induced it is called Medical Termination of Pregnancy (MTP).

Abortion is one of the few health procedures that is legally regulated in most countries, but this was not always the case.

Abortion is allowed in three broad categories:
  1. Abortion on request with no requirement for justification;
  2. Based on common legal grounds and related indication; or
  3. Based on additional indications that are nonequivalent to a single legal ground but could be interacted under multiple grounds.

Common legal grounds include abortion to save the women's life, to preserve the women's health in case of rape, incest, foetal impairment, and for economic or social reasons.

Road Map To Change In The System
It is a women's individual right, right to her life, to her liberty, and to the pursuit of her happiness, that sanctions her right to have an abortion.

Years ago, the Right to Abortion was not permitted and it was strongly opposed by society. The termination of pregnancy was termed to be a murderer of the foetus. In the beginning, India was against abortion because abortion is severely condemned in Vedic, Upanishads, later Puranic and Smriti literature.

With the change in time and technology Right to Abortion has been legally sanctioned by most countries. In the case of Jane Roe v. Henry Wade[2] by the US Supreme Court, it held that a mother may abort her pregnancy for any reason, up until the "point at which foetus becomes 'viable'".

In a landmark judgement of Suchita Srivastava & Another v Chandigarh Administration[3], the Supreme Court of India said that "There is no doubt that a women's right to make a reproductive choice is also a dimension of personal liberty under Article 21. It is important to note that the reproductive rights can be exercised to procreate as well as abstain from procreating."

In the case of Niketa and Haresh Mehta, the Bombay High Court rejected their plea for abortion of their 25th- week foetus with a congenital heart block, In India Medical Termination of Pregnancy (MTP) is allowed up to 20 weeks. This sparked off a near-unanimous demand of reviewing the 38-year-old MTP Act of 1971.[4]

After 50 years, MTP Amendment Act, 2021 was passed with certain amendments by the Government of India including all women being allowed to seek safe abortion services on grounds of contraceptive failure, increase in gestation limit to 24 weeks for special categories of women, and opinion of one provider required up to 20 weeks of gestation.

Dawn Of New Laws
Abortion is justifiable only when it is done in good faith to save the life of the women. The Supreme Court of India has said that the Right to Privacy is implicit in Article 21 of the Constitution and the Right to Abortion can be read from this right.

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. A woman is perceived as having complete liberty upon her person and the foetus is seen as a part of her body, acquiring the status of person only after birth.

Korea permits abortion till 2 weeks but spousal consent is mandatory for married women. The Abortion Act, 1967 of UK permits abortion till 24 weeks but there is no upper limit if the pregnancy poses threat to a women's life or if the foetus is likely to be born with a severe physical or mental deformity.

Article 6(1) of The International Covenant on Civil and Political Rights (ICCPR) prohibits the arbitrary deprivation of life. Article 1 of the American Declaration of Rights and Duties of Man and the Inter American Commission of Human Rights says abortion is legalized until the first trimester.

Some countries place more severe restrictions on abortions. While El Salvador and Chile endorsed a complete ban on abortions, Afghanistan, Bangladesh, Brazil and a few others permit abortion only in the case of rape. Islamic countries such as UAE and Tunisia have allowed abortions up to the upper limit of 120 weeks but most of the Muslim majority countries still have not legalized or have allowed abortion.[5]

The ability to give life is one of the greatest gifts given by God to women, but isn't it a choice of a woman to control her body and decide if she wants to be a mother or not? It is believed that every mother has a Right to Abortion, it is a universal right. When abortion is a crime, women suffer along with their families. While criminal abortion laws intend to prevent abortion, the reality is they do not.

Instead, these laws increase the number of women and girls who resort to unsafe abortion methods, risking death or injury as a result. States must take steps to ensure access to appropriate healthcare services for women and to eliminate such barriers to the provision of abortion services and that lead women to resort to unsafe abortions, including eliminating unacceptable delays in providing medical attention.

The dawn of the 21st century has come with new hopes and promises for women with the enactment of friendly laws keeping in mind the perils that women have to go through as well as the life of the unborn.

  • Rahin Bandyopadhyay's, "Women Rights, Human Rights" R. Cambray And Co. Pvt. Ltd, 1st Edition, 2010
  • Dr. Ks Narayan Reddy, "Medical Jurisprudence And Toxicology", 4th Edition
  • V.N. Shukla, "Constitution Of India", Eastern Book Company, 13th Edn., 2018

  1. Department of Reproductive Health and Research, World Health Organization (2003)
  2. 410 US 113 (1973)
  3. (2009) 14 SCR 989, (2009) 9 SCC 1
  4. Supreme Court Allows Abortion for 24-Week Abnormal Pregnancy

Written By:
  1. Pratyush Saxena &
  2. Nikitha Susan Eapen

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