Legal

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This Blog is written by Vijayalakshmi Raju from Dr. Ambedkar Global Law Institute, Tirupati. Edited by Ravikiran Shukre.

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INTRODUCTION:

Humanity is divided into two halves: males and women. Neither can achieve its maximum level of creative greatness without the other’s help. The role of women must be imagined as expressed by Tagore in Chitra: “I am no goddess to be adored, nor yet the objects of common pity to be swept away with indifference like a moth.” If you want to keep me by your side in the face of risk and courage, if you let me share the big responsibilities of your life, you will discover my true self.”

The term “abortion” can refer to any induced procedure at any stage during a human pregnancy; it is sometimes medically described as miscarriage or induced termination before viability. Abortion has been induced in many ways throughout history, and the moral and legal issues of abortion are hotly debated in many areas of the world. Abortions are classified into two kinds. A miscarriage is another term for a sudden abortion.

The 1972 Indian Medical Termination of Pregnancy Act in India, the necessity for abortion legalization became apparent in the 1960s, prompting a national discussion. The Shantilal Shah Committee, constituted for this purpose, debated for more than two years before delivering its findings to the Government in 1966. Following this, the Indian Parliament passed the Medical Termination of Pregnancy (MTP) Act in 1971, which went into effect on April 1, 1972. In 1975, the MTP legislation was changed once again. Sections 312–314 of the IPC make inducing a miscarriage or abortion unlawful unless done in good faith. In certain ways, the Medical Termination of Pregnancy Act of 1972 is an enabling provision.

SIGNIFICANCE OF THIS PROBLEM:

The Niketa Mehta case, and the following ruling issued by the Bombay High Court, have thrown into sharp focus the critical problem of abortion, as well as the social, moral, ethical, and political considerations that surround it. Although the facts of the Niketa case were clear, as was the court’s decision, the questions that arose from it are far-reaching and significant.

According to extensive press coverage, Niketa Mehta and her husband filed a petition before the Bombay high court seeking to abort their unborn fetus due to the discovery of a pre-natal test that suggested their baby might be born with a congenital heart abnormality, requiring their baby to be on a pacemaker almost from birth and requiring intensive care and treatment for almost a year. The court denied their request based on a 37-year-old statute that forbids abortion beyond 20 weeks unless there are extraordinary circumstances, such as a threat to the mother’s life.

The court also ruled that nothing in the medical report corroborated Niketa and her husband’s concern that their child would be born with a congenital defect. The emotional agony that the Mehtas must have experienced is only imaginable. As every parent will attest, the joy of parenthood is only matched by the anguish of worrying for the health and well-being of one’s children. Parents will have to watch as their handicapped child tries to understand and then integrate into a hostile atmosphere that is so unsuitable for coping with disability peers on both a physical and emotional level.

Thus, the personal dimension of the problem, as well as the reality that private decisions on such an issue resound on a completely different level than public discussion; have become part of the complicated oddity of the abortion debate. Abortion, or medical termination of pregnancy as it is known in India, is one of the world’s oldest techniques of fertility management.

The grounds for this vary, and include preserving the mother’s life, protecting the mother’s physical or mental health, if the mother had been the victim of rape or incest, fetal impairment (as in the Mehta case), economic and societal reasons, and simply on request in a tiny proportion of instances. Every year, about 9.2 million abortions are performed in Asia alone.

IMPACT:

Argentina has a fresh opportunity to comply with its international human rights responsibilities and address a significant public health problem as legislators in the Chamber of Deputies debate an abortion measure given to Congress by President Alberto Fernandez last month. The law would decriminalize abortion during the first 14 weeks of pregnancy—and afterwards, if the pregnancy was the result of rape or threatened the person’s life or health, both of which are exceptions already permitted under the Criminal Code.

The 2018 discussion revealed two truths that are now unarguable. The first point to make is that criminalizing abortion does not prevent it. Under reality, even in extremely punishing legal conditions, persons facing unplanned pregnancies seek access to abortion and post-abortion care. The second reason is that abortion regulations force people out of the public health system and into unregulated, clandestine settings. Many illegal abortions are carried out in hazardous conditions, resulting in short- or long-term health issues, or even death.

According to a new Human Rights Watch study, even when those exclusions apply, many women and girls are still denied abortions, putting their lives and health at danger. Obstacles include health-care institutions imposing arbitrary gestational limitations and a lack of access to different medical and surgical abortion procedures, including misoprostol tablets. All women seeking abortions, including legal ones, face the stigma of prosecution and maltreatment by health personnel. When doctors exercise conscientious objection, medical institutions lack efficient referral procedures to assist women, resulting in unnecessary burdens and delays. This forces many women who might otherwise be eligible for legal abortions to rethink their options.

Abortion criminalization entrenches inequities. A woman’s resources, where she lives, and even the medical institution where she regularly gets care all have an impact on her capacity to obtain abortion services. Vulnerable populations, such as those living in poverty or in rural regions, as well as teenagers, are more likely to be pushed to have illegal, dangerous abortions.

President Fernandez also sent a second bill to Congress to support pregnant women’s options, which would offer economic help to vulnerable individuals and their children for the first 1,000 days of a child’s existence.

There is no specific mention to the right to abortion in any international legal document. However, authoritative interpretations of human rights treaties ratified by Argentina, including by the United Nations Human Rights Committee, the United Nations Committee Against Torture, and the United Nations Committee on the Rights of the Child, have long established that highly restrictive abortion laws violate the human rights of women and girls, including their rights to life, to health, and not to be subjected to euthanasia. Forcing a woman or a girl to continue a pregnancy when the fetus has significant problems that make life outside of the womb impossible, or when the pregnancy was the product of rape, is a kind of cruel and humiliating treatment. Criminalizing abortion can force pregnant women to carry their babies to term, incurring enormous costs that are incompatible with respect for their human rights.

Abortion access is also a major public health concern. According to the National Health Ministry, between 371,000 and 522,000 abortions are done in Argentina each year. These numbers are still utilized by the National Health Ministry, which has likewise found that abortions are conducted in hazardous settings “in general.” In 2016, around 40,000 women and girls were hospitalized to public hospitals for abortion complications. In 2018, the National Health Ministry recorded 35 abortion-related fatalities, accounting for 13% of all maternal deaths.

This is not, and should not be, a discussion of religious beliefs, personal experiences, or ideological perspectives. Legislators would not force someone to get an abortion by legalizing it. They would simply be ensuring that Argentina meets its international responsibilities and that no one is made to suffer unnecessarily, particularly among Argentina’s most vulnerable citizens.

STATUTORY PROVISIONS:

Section 3 of the MTP is pivotal. It says;

(1) Notwithstanding anything in the Indian Penal Code (45 of 1860), a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act shall not be guilty of any crime under that Code or any other legislation in effect at the time.

(2) A registered medical practitioner may terminate a pregnancy, subject to the restrictions of subsection (4).

(a) Where the pregnancy lasts no longer than twelve weeks, if such medical practitioner is, or

(b) Where the pregnancy lasts more than twelve weeks but less than twenty weeks, if not fewer than two registered medical practitioners are of the opinion, formed in good faith, that

• The continuation of the pregnancy would endanger the pregnant woman’s life or cause serious harm to her bodily or mental health; or
• There is a significant chance that if the child is born, it will be severely handicapped due to physical or mental defects.

CASE LAWS:

No Supreme Court judgement in the twentieth century has been more contentious as the 1973 Roe v Wade decision, which established that women had the right to choose abortion during the first two trimesters of a pregnancy. The Texas statute barring abortions except when required to preserve the mother’s life, according to Roe’s attorneys, may violate many constitutional principles. The law was alleged to be an establishment of religion in violation of the First Amendment, unconstitutionally vague, a denial of equal protection under the law, and a violation of the Ninth Amendment (which states that certain rights not specified in the first eight amendments are reserved to the states). The Court in Roe, on the other hand, opted to base its judgement on the Fourteenth Amendment’s Due Process Clause and the so-called “right to private” established in prior cases such as Griswold v Connecticut. Roe’s trimester-based analysis typically prevents control of abortions in the first trimester, permits regulation in the second trimester to safeguard the mother’s health, and allows full abortion prohibitions after six months, the approximate time a fetus becomes viable.

Nand Kishore Sharma v Union of India, the court had to assess if the Medical Termination of Pregnancy Act was constitutional. It was contended that the Act, namely Sections 3(2) (a) and (b), and Explanations I and II to Section 3 of the Act, were unethical and violated Article 21 of the Indian Constitution. The court in the case had to decide when the fetus came to life and hence whether the provisions infringed his right to life. The court in this instance refused to pronounce on the fetus’s status as a “person,” but it did rule that the Act is legal.

Krishnan v G. Rajan, the court ruled that, while the guardian’s approval is necessary for an abortion, the minor’s assent is equally crucial and should be obtained. Case law demonstrates that the woman’s permission is of the highest significance, and no one may deprive her of this privilege.

ANALYSIS:

The World Health Organization (WHO) estimates that 42 million abortions are performed globally each year, with 20 million of them being covert or illegal. According to WHO, unsafe abortion causes around 65,000 to 70,000 maternal fatalities per year, 1 with 99 percent of these deaths occurring in poor countries.

Maternal conditions, whether abortion-related or not, account for 1.9 percent of all deaths among women and girls globally. There is frequently no birth attendant, the hospital environment is unsanitary, emergency facilities and supplies are lacking or insufficient, doctors are not educated or prepared to treat trauma, and basic medical and surgical supplies like as antibiotics and sterile gloves are scarce.

These risks to pregnant women exist whether the pregnancy is terminated by abortion or live delivery. More abortions will occur as a result of legalized abortion. Legalizing abortion may not make the operation less dangerous, but it does have one obvious consequence: it increases the number of abortions. Following its legalization in 1973, the number of abortions in the United States surged from an estimated 98,000 per year to a peak of 1.6 million.

According to Stanley Henshaw of the Guttmacher Institute (an abortion rights supporter), “it is usual when abortion is legalized for abortion rates to rise rapidly for many years, then settle, exactly as we have observed in the United States.”

CONCLUSION:

“A fetus has no right to be in a woman’s womb, but is there with her permission. Because her womb is a part of her body, she has the right to revoke this permission at any time. Permissions are not rights. There is no such thing as the right to live inside the body of another, i.e. there is no right to enslave.”

The law must protect the mother’s liberty as well as the public interest. Finally, just because abortion is legal in India does not mean that it is always available to every pregnant woman who wants to terminate her early pregnancy. The reason for this is because the bulk of the population lives in rural regions, far from government hospitals and clinics, and so does not have access to the government-promised services. Equally crucial, it will take some time before the news that abortion is now legal and accessible reaches all desperate moms in India.

The fact is that in this day and age, when women have finally reached parity with men and our Constitution boasts of equality, the right to life, and personal liberty, women should have the complete freedom to make their own decisions about their bodies and reproductive possibilities.

There might be a variety of reasons why a woman would wish to terminate her pregnancy. It could be due to financial issues, a pregnancy before to marriage, a third or fourth pregnancy, or a pregnancy as a consequence of incest or rape. These are only a few basic reasons; one must understand that pregnancy is about more than simply childbearing; it is also about child rising. Raising a child is a big job; there are a lot of things to consider, such as their education and well-being.

REFERENCES:

(1) Crimes against women and police by Garran Shah.

(2) Abortion: Murderer or Lover- By Ian Krug.

(3) Few Inches of Pleasure Lifetime of SIN – by Anil Machado.

(4) Abortion issue reflects ironies of modern living- By Acanthi Natarajan.

(5) Fifty-Seventh World Health Assembly, Report by the Secretariat on

(6) Reproductive Health, A57/13 (15 April 2004).

(7) Stanley Henshaw, Guttmacher Institute (16 June 1994), Press release.

(8) 410 U.S. 113 (1973).

(9) Article Abortion: Pro Life v Pro Choice by Ritika Jhurani

(10) The court said that, “The object of the Act being to save the life of the pregnant woman or relieve her of any injury to her physical and mental health, and no other thing, it would appear the Act is rather in consonance with Article 21 of the Constitution of India than in conflict with it.”

(11) C.M.P. No. 264 of 1993.

(12) Shri Bhagwan Katariya and others v. State of M.P.