PRO-CHOICE OR PRO-LIFE ABORTION?
ABSTRACT
Abortion is a universal phenomenon, occurring throughout recorded history and at all levels of societal organization. As part of the increasingly open discussion of sexual matters in our society, new public attention has been focused on the abortion "problem." Throughout the history induced abortion has always been a ground for debate. A person’s belief on induced abortion is always based on their morality and ethical values placed on the concept of abortion imposed with the laws and regulations connected with it. A women’s right to life and liberty that forms a ground to sanction right to abortion. Right to abortion gives a woman, a say in the society because, in our society, woman do not generally have any right with regard to their reproductive senses. The legalization of abortion has brought a dramatic improvement in women's health and reductions in maternal and infant mortality. The right to abort, given to woman is now internationally recognized. An important trend toward liberalization of abortion laws is related to broader currents of social change in our society involving norms governing control, and the social roles of women. The keynote of such change is the extension to women of areas of free choice hitherto not accorded them. How far this trend will be carried with respect to freedom of abortion remains to be seen.
ABORTION
In simple words, termination of a child inside the womb of the mother is abortion. There may be several reasons that might lead to abortion. The reasons may vary: the child being illegitimate, or that of rape of mother or they are aborting just because the foetus will grow up to be a girl child.
Throughout the past, it has always been a topic of debate and controversies as to why or why
not should abortion be legalised. The decision of abortion of the child is decided based on the
morality of abortion and the ethical limit of governments authority (BIOMEDICAL ETHICS).
It is very important and necessary to know that, there is almost four hundred (400) to five hundred (500) lakhs of abortion taking place throughout the country every year, which means that up-to almost one lakh twenty-five thousand (1,25,000) abortion cases every day.
A personal stance of the person majorly depends on the very complex ethical, morale, and legal view of the individual’s value system.
A woman’s individual right, right to life, dignified life, sexual and reproductive health, and all other mental and physical problems of her, gives her the sanction of right to abortion. This problem is internationally been recognized as critical issue as it advances woman’s human right as well as helps to promote development of the society and the country. Governments have pledged to advance reproductive rights. Every woman has an exclusive and absolute rights to have control over her body.
The following are the cases where a woman has a right to abort:
Where the termination of the child is necessary to prevent the grave permanent injury
to the health of the pregnant woman; injury may be physical or even mental.
Where the continuation of the pregnancy will involve risk of life of pregnant woman,
than if the pregnancy were terminated; here the risk may be of mental or physical
health of the pregnant woman, or to the mental health of any of the existing child of
the family of the pregnant woman.
There is substantial risk that the child would suffer physical or mental abnormalities,
which might at a very serious level make the child handicapped if it were born.
Or in emergency cases, where certified practitioner, to save the life of the pregnant
woman or to prevent grave permanent injury to the physical or mental health of the
pregnant woman, suggests for abortion.
According to The Medical Termination of Pregnancy Act, 1971 (MTPA); termination of the child in the above cases is within the period of 20 weeks, from the date gestation period starts. But in a case that came up on July 2016, the apex court permitted to terminate a 24 week to a rape survivor, which is beyond the permissible time of 20 weeks as prescribed under MTPA.
TYPES OF ABORTION
Induced Abortion: when woman terminates voluntarily from a service provider
Spontaneous Abortion: it is also called miscarriage; whose process of abortion starts without any external intervention.
RIGHT TO ABORTION OF THE MOTHER
Many factors such as religious, and cultural sentiments of the people still keep influencing
abortion laws throughout the world. As justifications, people use right to life, right to security
of person and right to liberty as major issues of human right either for the existence of or the
absence of the abortion laws. In countries where abortion is legal, require certain criteria to be met in order for an abortion to be obtained, but not always, using trimester-based system to regulate the window in which abortion is still legal to perform.
All arguments that are raised by the people in favour or against abortion are dependant either
on the moral permissibility or the justification of law permitting or restricting abortion. Those
who favour legal prohibition of abortion describe themselves as ‘pro-life’ and those against legal restrictions as ‘pro-choice’
The major question that arises is that “Does woman have the right to decide whether or
not to have abortion?”
LEGALIZING ABORTION
Bodily Integrity: Each woman has the sole right to decide as to what happens to her body.
No one can force her to carry or to terminate a pregnancy against her will.
Some abortions are done so that the mental health of the pregnant woman is safe, while
others are done to safeguard the life of the unborn child.
If abortion is banned, or restricted, then people would get back to the days of ‘back-street abortions’ i.e. woman resort to some kind of unhealthy and unhygienic measures to abort the foetus.
There are situations where, not terminating the pregnancy would result in the death of both
the pregnant woman and the unborn child. In such case, abortion of the foetus at-least saves
the life of the pregnant woman.
In cases where the woman does not want to continue her pregnancy, it is advised to abort such pregnancy or if she is forced to carry on with the pregnancy by not allowing to abort, or where such situations arise that abortion is banned, then the mother may abandon the new born child, which is more dangerous to the life of the baby than terminating the pregnancy at an earlier stage.
In the ancient and primitive times, there was a widespread practice of abortion and infanticide
among the different races, but later laws provided for a better status of the unborn child. But
with revolution, every person has a right to bodily integrity, and these rights are
protected internationally by the Human Rights. It has, thus, become important to secure the
right to abortion to every woman.
Abortion gives woman an identity, a say in the society. In the chauvinistic society that we live in, there are no rights given to woman at reproductive senses. Including the right to abort, in laws and rules, helps in giving woman, power over their own sexual rights and sexuality.
However, it is not possible to just leave the right to abort child without restrictions. That then
becomes dangerous. It is very much necessary to restrict this right, because, excess of
anything can be misused.
But, section 5 of the Medical Termination of Pregnancy Act, says that only with the
acceptance of the registered medical practitioner, the woman can abort the foetus.
For a medical practitioner, the level of mental and physical disturbances a woman would
face, if she carries the child, may not be completely known. Mental and physical disturbance is a subjective term and it varies from person to person. One can't decide the level of mental trauma that a person undergoes on the basis of the experience that another person has. A woman is pregnant and she wants to abort it because she feels that it will cause her mental and/ or physical injury, but that reason may not be accepted by the medical practitioner as a ground for abortion. In that case, he would not allow for the acceptance to abort the child, and the consequences of that act would be faced by both the mother and the child.
Thus, section 5 of MTPA has become an exception to section 3 of MTPA. Section 3 says that
if any injury is caused to the woman or the child, the mother can abort the foetus. But section
5 puts a hold to this point saying that, the woman can abort only with the acceptance of
registered medical practitioner. This merely means that women do not really hold right to decide on her motherhood. The right to decide on her motherhood, despite coming in the sphere of privacy of the women, is subjected to the conditions of the medical practitioners.
Does this mean that, woman do not really hold right to decide on her motherhood?
Opinion of the registered medical practitioner getting preference over the women who wants to get aborted is not significant. And a medical practitioner interfering in the decision to abort or not, is violative of article 21 of the Indian Constitution (Right to privacy).
It is very much necessary to differentiate between legal and illegal abortion. If you tell you want to abort because the foetus is a girl, then it’s a crime, and you will be behind bars for three (3) to seven (7) years, depending on the case. This is dealt with in section 312 of Indian Penal Code, 1860.
There are various major terms in relation to the MTP act such as health, substantial risk, seriously handicapped. Though these terms hold an important position in deciding as to whether a pregnancy must be aborted or not, the MTP act doesn’t define these important terms, but has left it in the hands of the medical practitioners to decide on it. So are in the case of some other important terms like abortion, miscarriage, and termination of pregnancy. The phrase grave injury to physical and mental health of the pregnant women have not been dealt in detail. Though the pregnancy caused by rape or as a result of any failure in any device or methods have been mentioned as grave injury to metal health, various other instances that can cause mental injury have not been dealt in the act.
There is this saying that goes like “The touch of children is the delight of the body; the
delight of the ear is the hearing of their speech” said by a Tamil Saint Thiruvalluvar. This
implies that a mother has got natural duty to provide maximum possible to her off-spring. But
it is also necessary to take into considerations the situation of the pregnant woman for
abortion. The decision whether to abort or not should be on the mother and none other.
Making decisions about abortion is both a dynamic and a complex process. Therefore, it is important to understand with whom women discuss their pregnancy, whom they consult or whose permission is sought or who compels them to undergo abortion.
Despite the legalisation of abortion in India, morbidity and mortality continue to remain a serious problem for a majority of women undergoing abortions. A lack of reliable information, wide regional and rural-urban differences and a thin research base all make it difficult for policy-makers, administrators and women's health advocates to develop strategic interventions.
CONSTITUTIONAL VALIDITY OF Section 3 of MTPA
Section 3 of The Medical Termination of Pregnancy Act (MTPA) is no way violative of fundamental rights. The point that the abortion is restricted to 20 weeks is a valid restriction, except for exceptional cases, as we say ‘every law has an exception’, because, it is to be understood that the right to personal liberty and privacy of the mother, which has not been exercised for a period of 140 days i.e. 20 weeks, should not be constructed as an apparent waiver of right, especially when it causes prejudice to the life of the foetus after the development of its vital development. Art.21 of the constitution clearly identifies the right to life and it is only recognizing personal liberty of an individual. The term personal liberty shall be given a very narrow interpretation which shall be interpreted as the right of an individual over the issues concerning him / her. It would not be appropriate to allow the parent to decide the fate of the child after the vital organs develop. Sec 3 of the MTPA clearly permits the termination of the pregnancy within the period of 20 weeks only under two circumstances:
If the continuation of the same would pose risk to the life of the mother or cause grave danger to the physical or mental health of the mother
the child if born will suffer from physical or mental abnormality as to be seriously handicapped.
Failure of contraceptive measures i.e. if the woman had used preventive measures when she was sexually active, and that failed, the woman can seek for abortion
If the woman is raped, and she is not married, or even if she was married, she can seek for abortion.
It is to be noted that all the above points become a subset of the major point of physical and mental trauma of the woman.
It must be noted that the MTPA gives more priority to the right to personal liberty, privacy and reproductive choice of a woman in the case of termination within 20 weeks as it expressly permits the termination of pregnancy dangerous to her life or mental and physical health and also the termination pregnancy due to rape or failure of any contraceptive methods. At the same time, the foetus cannot be deprived of its right to life when there is no risk to the mother’s life in an attempt to exercise her right to personal liberty and privacy. Thus, the MTPA correctly strikes a balance between the two by giving more priority to the right to life of the child than the right to personal liberty of the mother after the term of 20 weeks by when its vital organs would have developed.
In a Supreme court case, it was held that in the case of pregnant women there is also a ‘compelling state interest' in protecting the life of the prospective child.
This case very well proves that the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTPA, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.
A similar aspect was discussed in the case of Justice K S Puttaswamy v Union of India. This case held that the women’s constitutional right to make reproductive choices, is a part of her right to personal liberty under article 21 of Indian Constitution.
Sec 3 of the MTPA brings about a reasonable classification in permitting the termination of pregnancy before and after 20 weeks based on the risk involved to the life or the physical and mental health of the mother or that of the child. This classification indeed has a nexus with the object that the vital organs of the foetus develops only after 20 weeks and permitting termination at this stage when there is no risk to the life of the mother or the child would amount to deprivation of the right to life of the foetus. It depends on the object of the legislation, and what it really seeks to achieve. This classification is not an unreasonable classification and is in no way arbitrary as the classification is clearly based on an intelligible differentia and it has a nexus with the object of the classification and hence is not arbitrary or violative of Art.14 and hence constitutionally valid.
The hon’ble Delhi High Court in Sonali Sandeep Jadhav and ors. vs. union of India, allowed the termination of a 22-week-old foetus based on the report that foetus will suffers from significant brain damages and is prone to very high risk of mortality and morbidity after birth.
Similarly, this court in X vs. Union of India, allowed the termination of foetus of 24 weeks only after medical examination revealed that the continuation of pregnancy would cause grave danger to the life of the mother and also that the foetus is not capable of having an extra uterine life.
In another case, a 35-year-old woman was 17 weeks pregnant as a result of rape. But the government hospital refused her request for abortion which improperly demanded for spousal or parental consent.
In case of Meera Santosh Pal and ors vs Union of India, the hon’ble court allowed the termination of pregnancy after 24 weeks when it was found that the foetus was not sufficiently developed of its skull bones and this will pose a threat both to the life of the mother and the child.
AN OVERVIEW TO HUMAN RIGHTS
Human rights are those which are inalienable, among the various other rights that has been granted to women right to abortion is also one. Though, a woman has the right to abort, right to abortion is a right that is in balance with the right of the unborn. Throughout the history induced abortion has always been a ground for debate. A person’s belief on induced abortion is always based on their morality and ethical values placed on the concept of abortion imposed with the laws and regulations connected with it. A women’s right to life and liberty that forms a ground to sanction right to abortion.
HUMAN RIGHTS:
Article 1 of the Universal Declaration of Human Rights states that all human beings are born free and equal in dignity and rights. The word “born” has been intentionally used so as to avoid confusion in matters relating to the rights of the unborn child. It has also been noted that the drafters have turned down the proposal to remove the word “born”. It is thus explicitly mentioned that human rights are inherent only from the moment of birth. Even before birth, the state exercises a legitimate interest in protecting the life of the unborn child. But it is not as the typical human rights of the holders.
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS:
The International Covenant on Civil and Political rights rejected the proposal where the right to life as protected under Article 6(1) extends to prenatal life also. The drafters of ICCPR specifically declined this proposal to amend this article to provide that “right to life shall be available right from the moment of conception and it can be protected by the law.”
In the case of K.L. v. Peru (United Nations Human Rights Committee), the Committee established that the declining a therapeutic abortion, where continued pregnancy posed a huge risk to the life and mental health of the pregnant woman. This act violated the woman’s right to be free from cruel, inhuman, or degrading treatment. The Human Rights Committee reassured this decision in the case of L.M.R. v. Argentina, when it held that the denying legal abortion for a rape victim inflicted immense level of physical and mental suffering, violating the woman’s right to be free from torture or cruel, inhuman, or degrading treatment, and her right to privacy.
RIGHT TO LIFE AND PERSONAL LIBERTY:
Article 21 of the Indian Constitution deals with right to life and personal liberty. However ambiguous and unclear when the provisions of that particular article are subjected to interpretations right to abortion also comes under the ambit of right to life and personal liberty. The term life used in this article is more than mere animal existence. It can be understood from this provision that women being given full rights over her personal liberty, can exercise her sole decision-making power in altering her body whatever way she wants. Thus, women can alone decide if she wishes to continue her pregnancy or not. It also gives the ground for interpretation wherein; it is basically stated that the foetus also has the right to life because it is a potential human being. Argument arises on the basis that the potential human being also has the right to life. There always lies an intelligible differentia between the potential human being and an actual human being and the rights held by them. The scope of the rights held by the actual human beings is wider than the scope of rights held by the potential human beings. Right to privacy is not an absolute right, the right to privacy is subjected to reasonable restrictions and the laws imposed by the government. In the same way, right to abortion is also a privacy that women can exercise provided that the process of abortion is subjected to certain laws and regulations imposed by the state. Though abortion is a key reproductive choice, it is not a right. A woman can’t demand abortion without undergoing the procedure established by law.
Additionally, women in India still experience gender biasedness, especially on the situations wherein the women are unmarried and they seek abortion. Further, also on the contrary to the provisions of the MTP act many providers ask for the consent of husband before performing abortion. Thus, this act undermines the women’s ability to make her own decision.
There must be amendment made in relation to provision relating to abortion that would give women easy access to abortion so as to prevent unsafe abortion and self- abortion practices.
THE MEDICAL TREMINATION OF PREGNANCY BILL, 2020
MTP Bill, 2020 amends the upper limit of legal abortions from 20 weeks to 24 weeks for “special categories of women”, including rape and incest survivors, other vulnerable women, and children; and has completely removed the upper gestation limit for abortion in the cases of substantial foetal abnormalities will help many more seek safe and legal abortion services.
Another reasonable amendment in the bill approved by Lok Sabha is that there is no need for a second medical practitioners’ approval for abortion up-to 20 weeks. The second practitioners’ opinion will now be required only for abortion between twenty to twenty-four weeks.
But, with reference to the amendment bill of 2014, they have not taken any steps to provide safe abortion service to all those who require it, in remote areas. There are many abortions that happen in health care facilities, but others are not. For this, if the nurses and those who come as trainees at village-level suggest abortion, and many people show come forward to provide for safe abortions in remote areas.
The World Health Organisation (WHO)-recommended combinations of the oral pills, mifepristone and misoprostol, are the most common methods of medical abortion.
CONCLUSION:
When abortion laws in India is compared with the abortion laws that are been used in UK and USA, it may be observed that Indian laws are not liberal enough for women and thus women are given limited rights upon their body. The status of an unborn child is nowhere recognized under the Indian statue and hence the laws on abortion must be made more liberating and the decision of women must be given the first priority. The state has the obligation to protect the life of the women and at the same time the state must not deny her basic rights, and give importance to any decision that a woman takes that concerns her body.
REFERENCE ARTICLES
Abortion: Its every woman’s right to choose; By Soli Sorabjee
Right of woman to Terminate Pregnancy; By Pratyush
Whose right to life? @reproductiverights.org
Human rights law and access to abortion; @hrw.org
Right to life and right to abortion
Potential human, Potential rights @bcc.co.uk
A womb of one’s own: privacy and reproductive rights; By Arijeeth Ghosh and Nitika Khaitan
Abortion in India: Emerging Issues from the qualitative Studies @ researchgate.net
Constitutional Protection for the Rights of Abortion: From Roe to Casey to whole woman’s health
Paper on Abortion; by Sneha Mohanty
Abortion Law and Policy Around the World: In Search of Decriminalization; by Marge Berer
Right of Abortion; b Manisha Garg
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