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Published : September 01, 2010 | Author : Pratyush
Category : Woman Issues | Total Views : 15681 | Rating :

Mr. Pratyush Nath upreti course: Bsc.LLb(Hons) Age: 20 College: KIIT LAw School

Judiciary & Statute Vs Right of Women to Terminate Pregnancy

"There is no freedom, no equality, no full human dignity and personhood possible for women until they assert and demand control over their own bodies and reproductive process. ............ The right to have an abortion is a matter of individual conscience and conscious Choice for the women concerned."

AN ISSUE which has become the subject of debate and judicial adjudication is as to a women’s/wife’s right to terminate her pregnancy. Judicial has played an important role in infringes the right of women’s/wife to terminate pregnancy through their numerous judgment.

Right to personal liberty is the most precious, sacrosanct, inalienable and fundamental of all the fundamental rights of citizen[1]. Article 21 of Indian Constitution enshrined one of the most precious fights in the form of life and personal liberty guaranteed under chapter three of Indian Constitution. Supreme Court in India, the guardian of fundamental rights, has given wide interpretation to term life and has often quoted the following observations of Field, J. in Munn v. Illinois

"By the term life as used here something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an aim or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world. The deprivation not only of life but of whatever God has given to everyone with life or its growth and enjoyment is prohibited by the provision in question if its efficacy be not frittered allray by judicial decision".

Right to abortion is a species of right to privacy, which is again proclaimed a continuance of the right to life under Article 21. It can also said to be including the complete right of a woman over her reproductive organs. In the United States of America, the Supreme Court held the right to privacy and ended the ban on birth control back in 1965, in the case of Griswold v. Connecticut[2]. Eight years later, the Supreme Court ruled the right to privacy included abortions in the landmark case of Roe v. Wade[3]. Freedom from interference in one's privacy and family life is protected by Article 12 of the Universal Declaration of Human Rights, Article 17 of the Civil and Political Rights Covenant, Article 11 of the American Convention, and Article 8(1) of the European Convention. The European Commission of Human Rights has propounded in its judgments, like that in cases of Bruggemann and Scheuten v. Federal Republic of Germany[4] and Paton v. United Kingdom[5] decisions one makes about one's body, particularly one's reproductive capacity, lie squarely in the domain of private decision-making.

Since right to life includes right to enjoy life with all the limbs and faculties, it implies therefore that right to procreation and right to have control over reproductive organs are included in the broader concept of right to life. In Kharak Singh vs. State of U.P. and others, the Supreme Court has certainly interpreted article 21 and recognized that a person has complete rights of control over his body organs and his ‘person’. Thus Right to procreation and to have control over one's reproductive organs gives birth to another right i.e. the right to abortion.

The right to your body lies with you and no one else. Any forced act upon your body without your consent is a violation of basic human rights. This is a serious problem in India, where the right to reproduction is handled by the spouses and the in-laws rather than the woman. If you are married, the decision of having a baby is solely yours, since you are the one who will undergo labour. No one can force or decide that for you. In a recent case husband filed a petition in a Lucknow court seeking injunction against the wife who wanted to terminate her pregnancy. Husband appeal after losing in trail level appeal to high court but the issue remained as unsolved because the women got terminated voluntarily or accidentally. It will be pertinent to point out that courts in India do not favorably view a wife’s decision of terminating her pregnancy without the consent of her husband even though the Medical Termination of Pregnancy Act 1971, (MTPA) does not require such consent[6]. In India the foetus is considered the husband's property in India. So, irrespective of whether a woman wants to have a child or not, her husband's decision is taken into consideration. But the law states otherwise. A woman does not need her husband's or partner's permission to get an abortion. Under the Medical Termination of Pregnancy (MTP) Act, a pregnancy can be terminated under these circumstances.

Ø If the pregnancy can cause physical or mental injury to the mother.

Ø In case the foetus has a handicap.

Ø In case the pregnancy is the result of a rape.

Ø In case of the failure of contraception.

In the case of a woman under the age of 18 or a mentally instable girl, a guardian's written consent is required. A woman above the age of 18 however, (married or unmarried), has the right to an MTP. The husband's consent is not required to terminate the pregnancy.

In India, the courts have been silent on any direct declaration of the right to abortion but impliedly court has infringes the right of women. Supreme court of India in numerous cases doesn’t not favor Right to procreation and to have control over one's reproductive organs gives birth to another right i.e. the right to abortion which they held in Kharak Singh Vs. State of U.P. and others . After to the judgment, Supreme Court has somehow limited the right of having control over one’s reproductive organs i.e. right to terminate pregnancy in several cases. In Satya v Siri Ram[7] Supreme Court held that termination of pregnancy twice at instance of wife in spite of insistence on part of husband and his parents to have a child in family amounts to cruelty. Similarly in S.k Verma v. Usha[8] it was held that aborting foetus in the very first pregnancy by a deliberate act without consent of husband could amount to cruelty. Court in S.k case ignores the MTP Act where concern is not material.

Court in above case has given due regarded to the sentiments and interests of both husband and wife. What about the right of widow to terminate pregnancy?? Recently Delhi court has summoned a widow of a Delhi policeman, along with her parents and brother, for having aborted her husband’s only heir to be[9]. According to the mother of the deceased policeman who is the complainant, the unborn foetus would have been the only heir of the deceased son, and the widow had got pregnancy terminated so that she could remarry. Summons has been issued as the court “is satisfied that there is sufficient material on record to proceed against the respondents for the offence under section 312/201, Indian Penal code”. Here court gives more priority to IPC rather ignoring the special law “The Medical Termination of Pregnancy Act”. And the widow has not committed offence as provision of MTP Act. Thus it submits that widow’s actual or reasonably foreseeable conditions are not difficult to visualize in our society. There has being several case where widow want to terminate pregnancy to remarry. Because of the sentiments of the family members she could not enjoy life i.e. Right to enjoy life according to article 21 of Indian constitution and forcefully bears the child for family members. Thus it infringes the rights of women. Thus the interest of the women should not be sacrificed at the altar of sentiments and emotions of those around her.

However not only judiciary, the section 312 of Indian Penal code 1860
"Whoever voluntarily causes a women to miscarry, shall if such miscarriage be not caused in good faith for the purpose of saving the life of the women be punished .....”. The Explanation provided that a women who causes herself to miscarry within the meaning of this section, infringes right to life of mother.

Many people believes that abortion is a moral issue, but it is also a constitutional issue It is a woman's right to choose what she does with her body, and it should not be altered or influenced by anyone else. Thus, MTPA provides rights to women for terminate pregnancy with certain limitation but doesn’t not give absolute freedom.

The legal regulations have abrogated the women's right to liberty to a great extent, particularly with respect to right to self determination, right to have control over her body and right to abortion. These regulations shave created serious inroads into a women's right to life and liberty and it has become nothing more than an illusion. It is, therefore, submitted that females should be given right to have control over their body and consequently right to have or not to have child and there should be amendment in section 312 of Indian penal code and judicially should bring a judicial tools to protect the right of women to terminate her pregnancy.
[1] Sunil Deshta and Kiran Deshta, Fundamental Human Right - The Right to Life and Personal Liberty, Deep & Deep, New Delhi, 2003, p. 1
[2] 381 U.S. 479 (1965)
[3] 410 U.S. 113 (1973)
[4] 3 EHRR 244 1977
[5] 3 EHRR 408 1980
[6] Widow’s right to terminate pregnancy
[7] AIR 1983 P&H 252
[8] AIR 1987 Del 86
[9] Reported in Hindustan times, June 27, 2005

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

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