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Published : September 05, 2017 | Author : rajatnlu
Category : Miscellaneous | Total Views : 246 | Unrated

  
rajatnlu
i did my B.A.LL.B(hons) from dr ram manohar lohiya national law unversity lucknow.
 

Legalising Abortion In India

“I am the women who holds up the sky,
The rainbow runs through my eyes.
The sun makes a path to my womb,
My thoughts are in the shape of clouds,
But my words are yet to come.”

Man and Women are two halves of humanity Neither can reach its highest creative excellence without the cooperation of the other. The role of women has to be visualized as described in the words of  Tagore in Chitra that –
“ I am no goddess to be worshiped, nor yet the object of common pity to be brushed aside like a moth with indifference. if you desire to keep me by your side in the path of danger and daring , if you allow me to share the great duties of your life than you will knew my true self.” [1]

17-year-old Jane Doe is on her way home from work, walking to her own house. It’s a long walk; about 2 miles on foot and many dark alleys are around. All of the sudden, it happens so fast. Jane is on the ground trying to break free from the guys grip but she can’t. Then he forces it on her. Jane screams but no one is around. Minutes later, the guy is gone and Jane is left on the ground with ripped clothes and crying profusely. She is a victim of rape. Months later, she is pregnant. Although this is rare in a rape situation, only about 200 out of the 170,000 rapes a year become pregnant, she has. When the time comes, she will be able to abort the baby, and will not have to give birth to an unknown criminals baby. Jane has the abortion and doesn’t feel good about it at all but follows through with it.
 Well if a baby is alive at 21 days in the womb and murder is killing a human being then when we abort kids, we murder them.[2]

“I’m not an angel, I’m not a saint, I do not have halo, I’m weak
in flesh, the way that I chose better be the right way, I pray to
God that may his angels guide me in West and guide me in
East, While I lay to rest may my family say I was the BEST”[3]

 

Abortion


“Abortion” can refer to an induced procedure at any point during human pregnancy; it is sometimes medically defined as either miscarriage or induced termination before the point of viability. Throughout history, abortion has been induced by various methods and the moral and legal aspects of abortion are subject to intense debate in many parts of the world. There are two types of abortions. A spontaneous abortion is also known as a miscarriage.

Is abortion legal in India?


Abortion in India is legal but it involves lot of complications. It has now been almost 30 years since the passage of the MTP Act. Only a token number of abortions — a very tiny proportion of India’s crores of abortions that have been performed since then — were carried out safely in accordance with the Act’s provisions. The World Health Organisation (WHO) reported that out of the estimated 5.3 million induced abortions in India in 1989, 4.7 million were unsafe. This makes India the site of more unsafe abortions than any other country in the world. The combination of the social shame surrounding abortion and the government’s failure to spearhead an awareness campaign has made it difficult for women to get accurate information. The failure of government to provide the necessary information is not surprising as it is difficult to promote a service that does not exist in most locales. Since so little attention was paid to educating the public about the MTP Act, many women even today do not know that abortion is legal. In one rural, community-based study in Vellore District of Tamil Nadu, it was found that 84 percent out of the 195 women knew where to get an abortion, but only 13.8 percent knew they were conducted by doctors. It is hardly surprising, therefore, that women lack vital information about what they can safely do if they need an abortion. To cite a related situation: As one woman interviewed for part of the study stated, "It"s just like that, we [women] have to suffer pain." (Aisa hai, hum logon ko dard sahna parta hai.)

Abortion issue reflects ironies of modern living


The Niketa Mehta case, and the subsequent judgment pronounced by the Bombay high court, have suddenly brought into national focus the important issue of abortion, and the social moral, ethical and political issues surrounding it. Although the facts of the Niketa case were relatively straightforward, as was the judgment of the court, the issues that arise out of it are far reaching, and important. As the extensive press coverage has reported, Niketa Mehta and her husband filed a petition before the Bombay high court seeking to abort their unborn foetus due to the finding of a pre-natal test which suggested that their baby might be born with a congenital heart abnormality, which might entail their baby to be on a pacemaker, almost from birth, and require intensive care and treatment for almost the whole of its life. The court rejected their plea on the basis of the 37-yearold law, which prohibits abortion after 20 weeks, unless under exceptional circumstances such as a threat to the mother’s life. The court also declared that nothing in the medical report confirmed the fear of Niketa and her husband that their baby would be born with a congenital abnormality. The emotional trauma that the Mehtas must have gone through can only be imagined. As any parent can testify, the joy of parenting is equal only to the agony of worry about the health and well-being of the offspring. It is the parents who will have to watch as their disabled child tries to first understand and then integrate with a hostile environment which is so poorly suited to coping with disabled peers, both at a physical as well as emotional level.

 Thus the human dimension of the problem, and the fact that the individual decision on such an issue resonates on an entirely different plane from the public debate, is something that has become part of the complex anomaly of the abortion debate. Abortion, or medical termination of pregnancy, as we call it in India, is one of the oldest methods of fertility control in the world.

The reasons for these are varied, and range between saving the life of the mother, for the sake of the mother’s physical or mental health, if the mother had been the victim of rape or incest, foetal impairment (as in the Mehta’s case), economic and social reasons, and simply on request in a small percentage of cases. In Asia alone there are over 9.2 million clandestine abortions a year.[4]

Reasons why abortions should be illegal


a) Legalized abortion is incompatible with a free society.

How anyone can talk about "compulsory pregnancy laws" with a straight face is beyond me. Women who abort their babies were not compelled to become pregnant. Unless they are forced to engage in unprotected intercourse, they have many opportunities to avoid pregnancy.

b) Keep abortion legal, and more children will abort their children.
The so called "penalty" should be enforced maintenance of any pregnancy which does not involve serious health risks to the mother or baby. "Enforced childrearing" is not condoned by anyone, and it is ridiculous to seriously consider "enforced childrearing".

Does legalizing abortion protect women’s health?


The World Health Organization (WHO) estimates that there are 42 million abortions worldwide each year, and 20 million of these are clandestine or illegal. According to WHO, unsafe abortion causes about 65,000 to 70,000 maternal deaths each year,1 99 percent of which take place in the developing world[5] Maternal conditions, abortion-related or otherwise, cause 1.9 percent of deaths worldwide for women and girls.5 Often there is no birth attendant, the medical environment is not fully sanitary, emergency facilities and supplies are absent or inadequate, doctors are not trained or equipped to handle trauma, and basic medical and surgical supplies such as antibiotics and sterile gloves are scarce or unavailable. These dangers to pregnant women are present whether a pregnancy is ended by abortion or live birth. Legal abortion means more abortion The legalization of abortion may not make the procedure less risky, but it does have one clear consequence: legalizing abortion increases the number of abortions. In the United States, the abortion number skyrocketed from an estimated 98,000 per year to a peak of 1.6 million following total legalization in  1973. Explains Stanley Henshaw of the Guttmacher Institute (an advocate for legalized abortion),
“In most countries, it is common after abortion is legalized for abortion rates to rise sharply for several years, then stabilize, just as we have seen in the United States.”[6]

In the case of Roe v. Wade[7]


No decision of the Supreme Court in the twentieth century has been as controversial as the 1973 Roe v Wade decision holding that women have a right to choose to have an abortion during the first two trimesters of a pregnancy. Attorneys for Roe had suggested several constitutional provisions might be violated by the Texas law prohibiting abortions except when necessary to save the life of the mother. The law was said to have been an establishment of religion in violation of the First Amendment, un constitionally vague, a denial of equal protection of the laws, and a violation of the Ninth Amendment (which states that certain rights not specified in the first eight amendments are reserved to the people). The Court in Roe chose, however, to base its decision on the Due Process Clause of the Fourteenth Amendment and the socalled “right of privacy” protected in earlier decisions such as Griswold v Connecticut. Roe’s trimester-based analysis generally prohibits regulation of abortions in the first trimester, allows regulation for protecting the health of the mother in the second trimester, and allows complete abortion bans after six months, the approximate time a fetus becomes viable.[8]

Indian perspective


The Indian Medical Termination of Pregnancy Act, 1972 In India, it was in the sixties when the need of liberalization of abortion was felt and a national debate tookplace. The Shantilal Shah Committee, which was formed on this occasion, deliberated for more than 2 years before submitting its report to the Government in 1966. Following this, The Medical Termination of Pregnancy (MTP) Act was enacted by the Indian Parliament in 1971 and came into force from 01 April, 1972. The MTP act was again revised in 1975. Sections 312 – 314 of the IPC make causing miscarriage or abortion illegal but for cases of good faith. The Medical Termination of Pregnancy Act, 1972 is in a way an enabling clause to these sections of the IPC.

Section 3 of the MTP is pivotal. It says,


(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if he terminates any pregnancy in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner, -
(a) Where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or
(b) Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that-

(i) The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) There is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

In the case of

Nand Kishore Sharma v Union of India

, the court had to decide the validity of the Medical Termination of Pregnancy Act. It was argued that the Act particularly Section 3(2)(a) and (b) and Explanations I and II to Section 3 of the Act as being unethical and violative of Article 21 of the Constitution of India. The court in the case had to determine when the foetus comes to life and hence if his right to life is violated by the said provisions. The court in this case refused to comment on the attribution of the status of a “person” to the fetus, however it declared that the Act is valid.[9] In the case of

V. Krishnan v G. Rajan

[10], the court held that for an abortion, though the guardian’s consent is required, the minors consent is also important and should be taken. Case laws show that the woman’s consent is of the utmost importance, and no one can take this right away from her.[11]

Conclusion and Suggestion


"A fetus does not have a right to be in the womb of any woman, but is there by her permission. This permission may be revoked by the woman at any time, because her womb is part of her body. 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 has to take care of the liberty of the mother as well as the public interest. Lastly, the fact that India has legalized abortion does not necessarily mean that it is always available to every pregnant woman who would like to terminate her early pregnancy. The reason for this is that the majority of the population, being in rural areas and far away from government hospitals and clinics, have no access to the facilities promised by the government. And equally important is the fact that it will take some time before the information that abortion is now legal and available reaches all the needy mothers in India. The truth is that in today’s era when women have finally come at par with the men and our Constitution boasting of Equality and Right to life and personal liberty then women should get full right to make their own decisions pertaining to their body and reproductive options. There could be a lot of reasons why a woman would want to terminate their pregnancy, their could be financial difficulties, yet it could be a pregnancy before marriage or it could be a third or fourth pregnancy or a pregnancy as a result of incest or rape. These are just a few basic reasons, one must know that pregnancy is not just about child- bearing but it is about child rearing. Raising a child is not a small responsibility; there are a lot of implications that one has to think about; their education and well being.

End-Notes


[1] Crimes against women and police by Giriraj 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 Jayanthi Natarajan
[5] Fifty-Seventh World Health Assembly, Report by the Secretariat on
Reproductive Health, A57/13 (15 April 2004).
[6] Stanley Henshaw, Guttmacher Institute (16 June 1994), Press release.
[7] 410 U.S. 113 (1973)
[8]Article  Abortion:Pro Life v Pro Choice by Ritika Jhurani
[9] 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.”
[10] H.C.M.P. No. 264 of 1993
[11] Shri Bhagwan Katariya and others v. State of M.P.

 




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