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Right to Abortion

Abortion is the termination of pregnancy through which a foetus or an embryo is no longer a part of the anatomy of a woman when if the continuation of the pregnancy might affect the woman in mentally or physically. With respect to medical terminology, abortion means the expulsion of the foetus within the first three months of pregnancy.

Abortion during ancient times
Since ancient times, abortion was practiced as it was carried out to weed away the curse for the infidelity. Abortion was recorded in 1550 BCE in Egypt and around 500 BCE in ancient China. [1]During the medieval times, early in the 11th century, several herbal mixtures were commonly used to end pregnancy. The famous Greek philosopher Plato supported the right of women to seek early termination of pregnancy in his treatise called Theaetetus.[2]

Overall View of the World Health Organisation (WHO)
According to the WHO, every woman has the right of access to legal and safe abortion. The WHO has also found that the barriers to access safe abortion include[3]
  1. Restrictive Laws
  2. Poor availability of services,
  3. High cost,
  4. Social stigma,
  5. The conscientious objection of health care providers, and
  6. Unnecessary requirement such as requirement of authorization and that delay care.

Comparative Survey of Legislation on Abortion in the World

Interruption of pregnancy is either permitted or barred on various factors. The migrants either take advantage of the laws in the country that permit abortion or are disadvantaged due to bar of right of terminating the pregnancy. In the United States of America, the Model Penal Code brought abortion laws into force. These provisions permit termination of pregnancy to be carried only in the following circumstances by a physician.
  1. Where, there is a threat to the physical or mental health of the women
  2. The pregnancy was caused by rape or incest, and
  3. There is a probability that child-to-be will be mentally retarded or physically deformed.

But, the countries, which came up with liberal abortion laws, had to become thriving abortion hubs and the migrants and foreign women started taking advantage of the liberalization of abortion. Hence, such countries had to impose minimum residence requirement or domicile certificates from the physician authorized under law.

Abortion Laws in India and Human Rights

In India, abortion is governed by the Medical Termination of Pregnancy Act, 1971.
As per Section 3 (2) of the above said Act, a carrying woman can end her pregnancy with the help of a registered medical practitioner under the following four conditions:
  1. if continuation of the pregnancy cause any risks to the life of the mother or to her physical or mental health
  2. the fetus, if born may cause medical ramifications to itself or the mother,
  3. if pregnancy occurred as a result of failure of contraception (but this is only applicable to married women), and
  4. if the pregnancy is a result of sexual harassment or rape.[4]

Article 21 of the Constitution of India starts with the command of admonition that no person within the territory of India shall be deprived of his life or personal liberty except according to the procedure established by Law.

The Right of a woman to make her choice for reproduction is also her personal liberty as envisaged under Article 21 of the COI. Thus, it could be concluded that the right to procreate and right to abstain from procreating is the choice and personal liberty of a woman in terms of Section (3) of the Medical Termination of Pregnancy Act, 1971.

Hence, the women’s right to her bodily integrity and dignity is one of the sphere of the fundamental under Art 21 of the Constitution of India.

This principle has been reiterated in the Judgment passed by this Hon’ble Court in Paragraph 22 in Suchita Srinivatsa Vs. Chandigarh Admn reported in (2009) 9SCC1.[5]

A foetus could be called as an “Not Yet Life Status” of the unborn child. Yet, again the distinction arises as to difference between a “not yet life status” of an unborn child and a child capable to be born alive. It is pertinent to note that the MTP Act makes it clear that an unborn child is not entitled to the same kind of [6]protection as a person who is born into this world independently in his existence. From a conspectus reading it is crystal clear, that the foetus is not ‘a distinct person is separate from its mother’.

Hence, the continuation of the life of the unborn child is in the autonomy enjoyed by its mother to decide the fate of the life within her. The foetus is a part of homo sapiens but at the same time they fail to qualify the test as a human entity. Thus, the foetus is not a natural person.

[7]The Hon’ble Supreme Court in its decision rendered in Suchita Srivatsa Vs. Chandhigarh Admn reported in (2009) 9 S.C.C 1 , has observed that the mother has a sacrosanct right to have her bodily integrity and[8] subsequently the Hon’ble Supreme Court in Meera Santosh Pal case observed that the crucial consideration was whether the right to bodily integrity calls for permission to allow the termination of pregnancy and the Hon’ble Supreme Court decided in favour of the mother to terminate the pregnancy thought the foetus was advanced to 24th week.

It is therefore crystal clear that in the absence of the designation as a person with life, the foetus though has the right to life under Art. 21 of the Constitution of India, the right of the mother of the foetus stands on a higher degree of protection and enforcement vis-à-vis the right of the foetus for the reasons stated supra.[9]

The Hon’ble High Court of Bombay in Suo Moto PIL No. 1 of 2016 in its Judgment dated 19.09.2016 has observed that the pregnancy is a natural phenomenon for which both man and woman both are responsible. Pregnancy would either be by choice or an accident which was unwanted pregnancy, the burden falls heavily on the woman with respect to her health and her social status.

Abortion in case of Minors and mentally retarded persons, The Hon’ble Supreme Court in the Suchita Srivatsa case, held that the doctrine of Parens Patriae has to be invoked by the state to protect the interests of those who are unable to take care of themselves. Hence, the Supreme Court has explained the “the best interest test” should be applied in such cases. This has been the followed and relied on till date in subsequent decisions of the Hon’ble Supreme Court in X vs Union of India (2017) 3 SCC 458 , Z Vs. State of Bihar (2018) 11 SCC 572 , Eera Vs State (NCT Delhi) 2015 15 SCC 133 and in Sarmishtha Chakraborty Vs Union of India (2018) 13 SCC 339.

The Landmark judgments aforesaid are based on the settled principles in Roe Vs. Wade reported in 410 US 113.[10]

Abortion during Pandemic

The World Health Organization made a declaration that abortion is an essential health service during the COVID-19 pandemic. It has laid down clinic guidelines that women’s right to sexual and reproductive healthcare should be respected without taking into account of the pandemic. The Organization also advised Governments to prioritize healthcare services which are believed to be essential and crucial such as reproductive healthcare.[11]

Recently, in The United States of America, an emergency lawsuit was filed by the Centre for Reproductive Rights to ban abortion during the Pandemic. On the March 25th 2020, shortly after the Hon’ble Prime Minister of India announced the nationwide lockdown, the Ministry of Home Affairs came out with a list of essential services that will continue to function in spite of the lockdown, which included Hospitals and all related medical establishments, both in the public and private sectors.

Despite the directives of the WHO, India has till date not listed the reproductive health services during the Corona Virus Pandemic. The Indian Council for Medical Research is also silent on the listing of abortion as an essential healthcare service. The situation will create an epidemic in India on abortion subsequently thereafter. The MTP Act allows to abort a foetus of 20 weeks but in the given situation many foetus cross 20 weeks which will result in denial of right to women and further result in unsafe abortion.

Conclusion
From above the above reading it is crystal clear that, the right to abort in India is within the framework of the MTP Act and Rules, there under is an essential right bestowed upon a women that flows from the Article 21 of the Constitution of India. A mother who renders love and care to her ward without any expectations is believed to not terminate pregnancy without a valid cause. The validity of abortion laws have been questioned on the grounds of constitutionality of “Right to Life.”[12]

End-Notes:
  1. John M. Riddle (Chair of the History Department and Alumni Distinguished Professor, North Carolina State University. Contraception and Abortion from the Ancient World to the Renaissance. Harvard University Press (April 1994
  2. Konstaninos Kapparis, Assistant Professor of Classics, University of Florida. Abortion in the Ancient World (Duckworth Classical Essays). Duckworth Publishers (May 2003).
  3. Abortion Laws- A Survey of current World Legislation, WHO Geneva 1971
  4. Medical Termination of Pregnancy Act, 1971, Sec. 3.
  5. Suchita Srinivatsa Vs. Chandigarh Admn , (2009) 9 SCC 1
  6. K. Mathiharan & Amrit K. Patnaik (eds.), Modi’s Medical Jurisprudence & Toxicology 1013 (Lexis Nexis Butterworth, New Delhi, 23rd ed., 2006
  7. Supra Note 5
  8. 2017 SCC OnLine SC 39
  9. Roe v. Wade, 41 USLW 4213 (1973): 410 US 113 (139).
  10. https://www.theguardian.com/global-development/2020/apr/10/declare-abortion-a-public-health-issue-during-pandemic-who-urged
  11. G.V. Ramiah, “Right to Conceive vis-a-vis Right to Birth” AIR Jour 139-140 (1996).

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