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Published : May 14, 2010 | Author : dhruvesh1989
Category : Criminal law | Total Views : 8393 | Rating :

Dhruvesh Singh Yadav Dr. RML National Law University, Lucknow 3rd Year Student

Legalizing abortion in India

"The touch of children is the delight of the body; the delight of the ear is the hearing of their speech”. Thiruvalluvar[1]
Before starting something about Abortion we need to know what is abortion :
An abortion is the removal or expulsion of an embryo or fetus from the uterus, resulting in, or caused by, its death. .

Abortion as explained in Webster’s II New Riverside University Dictionary is-
1. The premature expulsion of a fetus from the womb, which may be either spontaneous (a miscarriage) or induced.
2. An operation to remove a fetus from the womb.
3. Cessation of normal growth, especially of an organ, prior to full development or maturation
4. An aborted organism.
5. One that is malformed or incompletely developed.

We all know the human rights are available for every individual without any discrimination. The most important rught is “RIGHT TO LIFE”. It is supreme right and one of them is right to abortion Among other rights of women, it has been considered that every mother has a right to abortion because of natural law. But the rights of the mother are to be balanced with the rights of the unborn.

Abortion is topic regarding with the moral conception because there is need of knowledge to know about we can not deny fetus is a person or moral patient, but strictly to the fact that fetus’s claims are limited by the pregnant woman’s prior claim to control her bodily destiny. Therefore, this is the question of discussion in relation with the fetus status as ‘a person’ hence it is the point of contention that the ‘persons’ have moral status and their moral status is indeed more important than that of ‘non-persons’.

Shall we have to accept the condition regarding with the point that moral patiency is said to be “co-relative” with moral agency (moral agents are those beings whose actions are subject to moral evaluation evaluation; while moral patients are those beings whose suffering - in the sense of being the objects of the actions of moral agents - permits or demands moral evaluation).

It is significant to note that unwanted female babies were being eliminated even before the advent of pre-natal diagnostic technology. The difference is that earlier they were killed or “put to sleep” soon after birth whereas now it has become possible to be “kind” and eliminate female babies even before they are born. Thus, medical science has connived and facilitated disposal/elimination of unwanted female foetuses; it has invented gadgets and made researches for even pre-conception sex-selection; nor is there any dearth of touts or tantriks luring and blessing couples assuring birth of a male child.

In the context of The Jane roe case[2]
Several states enacted laws limiting abortion, including laws requiring parental consent for minors to obtain abortions, and laws requiring abortions to be performed in hospitals but not clinics, laws barring state funding for abortions, laws banning most very late term abortions. US Supreme Court case (1973) which ended in a decision making it legal to have an abortion, judges said that a state must allow any woman, if she wishes, to have an abortion within the first three months after she becomes pregnant. The decision divided US society and caused a lot of discussion all over the country. And still this issue is a bone of contention there, as it is evident from various activities still going on at various places in U.S. But as far as India is concerned, there are many statues, which deal with this point. Now we enumerate Indian law to ascertain stance from both sides i.e. mother and unborn child. Section 312 of the INDIAN PENAL CODE, 1860 causes miscarriage punishable.

A lot of contention was held in this case between judges arguments it was held by the deciding bench that a “right for pregnant mothers” taking precedence over “the right of potential life of the fetus”. So, there was a big uproar about it, efforts were made in the direction of protecting local laws by restricting abortion, and to place in the Constitution an amendment forbidding abortion.

Is The Fetus A Human Being With A Fundamental Right :-
A women’s right to terminate her pregnancy against the belief that life begins as conception hence abortion is a murder. The moral and legal aspects of abortion are subject to intense social debate in many parts of the world. Most of the nations have legalized abortions in certain circumstances. India and Japan allow abortion in instances of sexual assault or in the face of maternal health risks, China and France allow abortions on demand regardless of motive.

The manner selected depends chiefly upon the gestational age of the embryo or fetus, in addition to the legality, regional availability, and doctor-patient preference for specific procedures. Reasons for procuring induced abortions are typically characterized as either therapeutic or elective. An abortion is considered to be therapeutic when it is performed to:
Induced abortion is done to save the life of the pregnant woman, to preserve the woman's physical or mental health, to terminate pregnancy that would result in a child born with a congenital disorder that would be fatal or associated with significant morbidity, to selectively reduce the number of fetuses to lessen health risks associated with multiple pregnancy. An abortion is considered to be elective if it is performed for any other reason.

Abortion As A Human Right:-
Any individual person has stance on moral, ethical, and legal issue in regard with the relationship with the given individual values system.any person who is in the position of abortion may be described as a mixture of the morality and the ethical limit of the government's authority..

The termination of pregnancy take place when the greater risk involved in the context of mental or physical condition and in some emergency condition also when the immediate necessity take place for the life of women. The right of a woman to her private life has been the basis on which a number of international bodies have upheld the right of a woman to have an abortion. The right to freedom of expression and access to information has been used to argue for the right of women to receive information about abortion options. The right to access abortion may also be based on the right of a woman to decide freely and responsibly on the number and spacing of her children.

If we look in the case of Paton Vs. United Kingdom[3] where it was held that abortion can be held if the life of women is in risk. The right to life of fetus is subject to an implied limitation allowing pregnancy to be terminated in order to protect the life of a mother.

Abortion- In Indian Context:-
Infanticide, the practice of ending the life of a newborn child, is a practice which has been thought to have been occurring in some parts of India and other parts of Asia for centuries (Caldwell, 2005). [It should be noted that infanticide is not a practice that should be considered common amongst the general population.

In India we can easily see that education level, age of marriage, and reason make cause of abortion. There was a higher odd of abortion ratio age at marriage compared to below 15 year age group. Women living in rural areas has abortion 43% lowers odds of abortion compared to women living in urban areas. It could be the reason of education level and lack of entertainment tools.

The Medical Termination of Pregnancy Act, 1971, equips women with legal provision to abortion. It provides that a pregnancy may be terminated where the length of the pregnancy does not exceed twenty weeks, if two or more medical practitioners are of the opinion that the continuance of the pregnancy would involve a risk to the life of a pregnant woman or a grave injury to her physical or mental health. It can be pregnancy either through rape or where a pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children.

Somewhere we find that “this enactment has been hailed as a major landmark in India’s social legislation and a far-reaching measure assuring the women in India freedom from undesirable and unwanted pregnancies”.

The whole argument of abortion as something morally degrading the standard of female from high pedestal to low of lower most level in falsified. Is abortion morally justified or not is not the question here. It is what a woman desperately seeks that is the issue at hand. We cannot be neutral either to the fetus’ right-to-life or a woman’s right-to-live. We have to take a stand somewhere.

Decision as to abortion may be entirely left with woman provided she is sane and attained majority. Only in cases where an abortion may affect her life, her freedom may be curtailed. Whatever have been in statute show that the main aim of the state is to protect living women from any kind of dangers. Lastly it may be noted that the M.T.P. Act does not protect the unborn child. Any indirect protection it gains under the Act is only a by-product resulting from the protection of the woman.

Relevant Cases:-
Evil of female foeticide is not creation of tomorrow but lies in root of Indian society and worsening day by day due to which Indian judiciary has also to come forward to control practice.

Vinod Soni & Anr. v. Union of India-
Mumbai high court rejected the argument of unconstitutional pre-conception and pre-natal diagnostic techniques (prohibition of sex selection)Act,1994,on the basis of right to privacy. as above mentioned that in Roe v. Wade , the apex court of U.S declared the anti-abortion law unconstitutional on the basis of right to privacy. Reversely Indian apex court mounts the pressure on govt. for strict application of anti-abortion laws. Due to hatred for girl child, the right of woman over her body does not hold much weight in India. So, the Scale of Justice in India tips in favour of unborn child.

In Mr. Vijay Sharma and Mrs. Kirti Sharma vs. Union of India (UOI)[4]
Through the Ministry of Law and Justice and Ministry of Health and Family Welfare , the court says that foeticide of girl child is a sin; such tendency offends dignity of women. It undermines their importance. It violates woman's right to life. It violates Article 39(e) of the Constitution which states the principle of state policy that the health and strength of women is not to be abused. It ignores Article 51A (e) of the Constitution which states that it shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women. The architects of the MTPA, 1971, have not taken into consideration the fundamental rights of the foetus to be born. It is submitted that ‘life’ exists in the foetus while in the womb of the mother and in this context article 21 of the constitution of India is applicable to unborn person as well. Thus it can be considered as the greatest argument for validating the MTP act as unconstitutional.

State of Tamil Nadu and Ors. V. Ananthi Ammal and Ors .
It is well settled that when a law is challenged as offending against the guarantee enshrined in Article 14, the first duty of the court is to examine the purpose and the policy of the Act and then to discover whether the classification made by the law has a reasonable relation to the object which the legislature seeks to obtain. The purpose or object of the Act is to be ascertained from an examination of it's title, preamble and provisions.

In Centre for Enquiry Into Health & Allied Themes (Cehat) and Ors. V. Union of India and Ors. , a grievance was made by a Non Governmental organization that the provisions of the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 are not properly implemented. After considering this grievance, the Supreme Court has noted that it has already issued directions to secure compliance of the provisions of the said Act. The Supreme Court has issued further directions to the Central Government, State Government and Union Territories to ensure compliance of its earlier directions. If the said action could be done in the above – mentioned act, then why can’t it be done in MTP Act.

Dr. Nisha Malviya And Anr. Vs. State of M.P
In this the accused had committed rape on minor girl aged about 12 years and she became pregnant. The allegations are that two other people had taken this girl, and they terminated her pregnancy. So the charge on them is firstly causing miscarriage without consent of girl. The Court held all the three accused guilty of termination of pregnancy which was not consented by the mother or the girl.

Murari Mohan Koley Vs. The State And Anr
In this case, a woman wanted to have abortion on the ground that she has a 6 months old daughter. She approached the petitioner for an abortion. And the petitioner agreed to it for a consideration. But somehow the condition of the woman worsened in the hospital and she was shifted to another hospital. But it resulted in her death. The abortion was not done.

Right To Abortion Against Right To Life Of The Unborn:-
The right to life, the right to liberty and the right to security of person are major issues of human right that are justification for the existence of laws controlling abortion. Here I would like to discuss the ethical and moral permissibility of an abortion, on morality and legality tend to collide and combine, complicated the issue at hand and on the of legal prohibition of abortion describe themselves as pro-life while those against legal restrictions on abortion describe themselves as pro-choice.

If we see against the abortion then we have point that (1) the killing of innocent is a crime and the fetus is also an innocent life(2) many women suffer significant emotional trauma after having an abortion.(3) An embryo is a human being, entitled to protection, from the moment of conception and therefore has a right to life that must be respected. hence abortion is a homicide.

But on the other hand the first thing is bodily sovereignty. Each woman has right to make decisions about what happens to her body- no one should force her either to carry or terminate a pregnancy against her will.· Most abortions are carried out on the grounds of safeguarding the woman's mental health.

But accordingly if abortion is banned. Any women does not want to carry her pregnancy, she would carry it and then abandon the new born child. It would be more dangerous to the life of the child thus it is better to terminate the pregnancy at an earlier stage. But in the condition of war or revolutionary changes, each person has its bodily sovereignty and human right protect such rights universally thus it become to secure the right to abortion to every one.

"It's the need of the Hour that we should legalize abortion as otherwise this will invite illegal means, which is more dangerous for our society It is irrational and unfortunate that a couple who has sought legal help from the judiciary didn't get justice.[7]” it is the duty of any mother to give maximum best to her offspring. But, condition arises when she indulges in activities, which injuriously affect the fetus. The reason could be the carelessness or ignorance. Abortion is an issue to be left to the decision of the mother. It is the duty of the law to take care the liberty of mother as well as the unborn. Hence I am neither morally justifying abortion nor not justifying. My point is a woman’s right to take decision is prior to anything else.[8]

1. Joshi K.C, "Universalisation of Human Rights Of Women", AIR 2001 Journal 59
2. Sachchidananda and Ramesh P. Sinha [Printwell Publishers, Jaipur] (1984) pg. 41 - 42.
3. Webster’s II New Riverside University Dictionary. [The Riverside Publishing Company] (1988).
4. The Cambridge Dictionary of Philosophy (Second Edition - General Editor: Robert Audi)
5. http://www.legalserviceindia.com/articles/adp_tion.htm
6. By Amita Valmiki, Abortion: Rethinking and Revised, National seminar on bioethics-2007
7. http://www.abortive.eu/
8. http://www.legalserviceindia.com/articles/mot_womb.htm
9. http://www.nhrc.nic.in/Publications/Disability/chapter10.html
10. http://www.newworldencyclopedia.org/entry/Abortion
11. http://www.wikidoc.org/index.php/Abortion
[1] The great Tamil saint
[2] The jane roe v. wade
[3] (1980) 3 EHRR 408
[4] AIR 2009 bom 29
[5] 2000 cri LJ 671
[6] 2003
[7] Legal service of India- article on abortion in India
[8] National seminar on bio ethics, by Amita balmiki,2007

Authors contact info - articles The  author can be reached at: dhruvesh1989@legalserviceindia.com

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