Abortion v. Women's Right: Which one shall prevail?
In this blog post, the author deals with the most debatable issue of the fundamental right of reproductive autonomy and its conflict with the right to life of a fetus. The author describes the penal provisions and has evaluated them in accordance with the fundamental rights of both the mother and the fetus.
Abortion is a phenomenon which became a controversial issue that invites exuberant debates at the national and international level today. This debate can be recapitulated in two terms- Pro-Choice and Pro-Life. It involves the culmination of many aspects such as religion, ethics, medicine, and law. Abortion is a social issue that raises the general question i.e. whether a mother has a right to terminate her pregnancy at any time she wishes, or an unborn child has a right to life. The women distinctly play a contributory role in the evolution of human life because it takes place in the womb of the mother. A fact which is disputed by many feminists i.e. – when women become pregnant the strong essence of being women is overpowered by the fragile emotive entity of being a mother.
The moral, social, and ethical background and keeping the view of Indian society, the term Abortion, is noted as the premature termination of pregnancy prior to birth. It is a technique of removing a developing embryo or fetus from the maternal uterus for the purpose of preventing its birth. Abortion considered is murder or nearly a wrong as murder.is noted as the premature termination of pregnancy prior to birth. It is a technique of removing a developing embryo or fetus from the maternal uterus for the purpose of preventing its birth. Abortion considered is murder or nearly a wrong as murder. The Indian Penal Code 1860 induced abortion a criminal offense under section 312 to 316 of the code. Section 312 provides that a person who voluntarily cause a miscarriage – be punished with imprisonment of either description for a term which may extend to three years or with fine or with both; and if the woman is quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. The offense is not cognizable, bailable, and non-compoundable.
CONSTITUTIONALITY OF ABORTION LAW
The various rights are available to a woman, the right to abortion is also believed to be under the right to privacy which is a part of the right to personal liberty and emanates from right to life.
In R vs. Bourne, a girl under fifteen became pregnant as she was criminally assaulted in the most revolting circumstances. A gynecologist who terminated the pregnancy was charged with the offense against for causing abortion against law. The approximately one-seventh of women who become pregnant in India every year. The rigidity of legal provisions of abortions was responsible to a great extent effective to curb the menace of illegal abortion killing innocent women. The pragmatic approach of socio-legal problems involved in cases of unwanted pregnancies.
Case Study One:
A 35-year old woman from Patna, Bihar living with HIV who became pregnant as a result of rape. She was homeless and discovered that she was 17 weeks pregnant and HIV positive when she was admitted into a government shelter. Although Indian law under Section 3 of the MTP Act, lays down the conditions under which a pregnancy may be terminated by registered medical practitioners that is termination within the first trimester, is permitted only upon fulfilling certain conditions and termination on account of fetal abnormality is allowed only up to 20 weeks and termination beyond 20 weeks is restricted. The women requested an abortion and were denied by a government hospital which improperly demanded spousal and parental consent.
Hence, the Act imposes a restriction on women’s right to ‘reproductive choice’, that is, ‘the right to choose whether to conceive and carry a pregnancy to its full term or to terminate. At the core of one’s privacy, dignity, personal autonomy, bodily integrity, self-determination the women have the right to choose what they want to carry full-term pregnancy or abortion law. It is not mentioned anywhere that someone who is not alive and just because someone can develop into a human being it acquires the right before coming into the world and what about the mother who bears all the pain and suffers. If she carries the fetus and giving birth to the child, then, she abandons the newborn child, ultimately creating a new burden for the society.
Case Study Two:
Sheetal, a 28-year old woman from Mumbai, was nearing to the end of her 5th month of pregnancy when she learned about the fact that her fetus had Arnold Chiari syndrome, a condition that prevents the normal development of the brain and spine. Her doctor explained that the fetus’s chance of survival was unlikely as its brain had failed to develop. Because Sheetal’s pregnancy was past 20 weeks, she was told she needed a court order before she could do abortion. Sheetal was 27 weeks pregnant when she filed to end her pregnancy. The Supreme Court ordered that Sheetal be examined by a medical board of seven doctors to decide whether the pregnancy posed a threat to her life or that of her fetus. The medical board focused its report on the likelihood of fetal survival and was unable to predict how long the baby would survive after birth if it were to survive at all. However, even with information showing that the fetus’ chances of survival were negligible, the doctors still advised against the MTP. The Court, relying on the Medical Board’s opinions, completely dismissed the possibility of mental anguish this would cause Sheetal, and denied her an abortion. After being denied her MTP,
Sheetal explained, “I have not slept, neither has he,” pointing to her husband. She planned on writing to the Chief Justice of India, and further explained, “It is the hardest decision I had to take. But what option do I have?”
Her doctor explained that the system is failing poor patients in India, such as Sheetal:
"Poor patients like her are forced to visit the court for abortion because usually diagnosis in their cases gets delayed."
The right of reproductive autonomy is a fundamental right guaranteed to a woman under Article 21 and at the same time the legislature puts reasonable restrictions on such rights thus, the post-20 week cases reflect the dichotomy in India’s legal framework on abortion. It becomes necessary to clarify that women’s and girls’ rights must take priority over interests in fetal survival judicial decisions on MTP beyond 20 weeks. It is basically dependent upon the two major factors – whether the court or medical board considers the mental distress caused to women and girls from a forced continuation of pregnancy, and whether concerns about the survival of the fetus, if born, are prioritized over women’s and girls’ well-being and rights. There is a greater missed opportunity from the perspective of the constitutional doctrine for interpretation of section 3 and parallel to its Article 21 of Constitution. The right to control their own body and fertility and motherhood choices should be left to the women alone. Let not lose sight of the basic right of women. Need law to be a supreme savior and must be pragmatic which is acceptable in society.
References:  S.N Mishra, The Indian Penal Code 662(12th Ed, 2017).  R v Bourne  36 Cr App R 1251.  Government of India, Report of the Committee to Study the Question of Legalisation of Abortion 36 (Ministry of Health and Family, 1966).
 Bavish Gupta, Meena Gupta, The Socio-Cultural Aspect of Abortion in India: Law, Ethics and Practice, ILI law Review, (2016).
 Neetu Chandra Sharma, Abortion, Livemint, 04 Feb 2020, 12:42 AM, https://www.livemint.com/news/india/india-soon-to-have-liberal-abortion-rules-11580756559537.html.
 Abortion in India, https://en.wikipedia.org/wiki/Abortion_in_India.
 Amar Jesani, Aditi Iyer,Women and Abortion, ResearchGate, file:///C:/Users/hp/Downloads/Epw-93-Perspectives-WomenandAbortion-AmarJesani-AditiIyer.pdf
 Medical Termination Act 1997, Acts of Parliament, 1997.
School of Law,
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