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Health And Reproductive Rights Of Women: A Comment On The Abortion Laws Around The World

Jan. 23, 2020   •   Architi Batra

INTRODUCTION

Meaning of Abortion - According to the Medical Language, Abortion is the process of partial or complete separation of the products of conception from the uterine wall with or without partial or complete expulsion from the uterine cavity before the age of viability. Abortion is the termination of pregnancy by any method (spontaneous or induced) before the fetus is sufficiently developed to survive independently (fetus less than 20 weeks of pregnancy).[1] Another definition is the delivery of the baby/fetus that is less than 500 grams. It is a technique of removing a developing Embryo or Foetus from the maternal uterus.[2] Abortion is a term for pre-mature termination of Pregnancy prior to birth. It is a technique of removing a developing Embryo or Foetus from the maternal uterus.

In India, the age of viability is of a maximum of 28 weeks. The causes of spontaneous abortion in most cases are not known. Where a cause is determined, 50% of miscarriages are due to chromosomal abnormalities of the fetus.

Reproductive rights are the legal rights that give a woman the freedom to control her own reproduction system i.e. pregnancy. It also includes the right to make decisions concerning her reproduction free from any discrimination and violence.

The various terminologies to be understood before we dwell further into details are -

  1. Conceptus - It is the product of conception itself i.e. the result of the union of the sperm and ovum. The period of development of the conceptus from the time of conception is referred to as the gestation period and normally lasts 40 weeks.
  2. Embryo - It is a conceptus less than 12 weeks old. An embryo has yet to acquire those features that allow it to be recognized as a human being.
  3. Foetus - It is the conceptus in the later period of gestation (greater than 12 weeks) of pregnancy. At this stage, the conceptus can be recognized as a human.
  4. Viability - Refers to the chance for survival of a foetus outside the womb. A foetus is normally born when it is fully mature at 40 weeks.
  5. Miscarriage - It is the spontaneous expulsion of a foetus before viability. This is also termed as spontaneous abortion.
  6. Premature Birth - It is the expulsion of a viable foetus before term.
  7. Medical Termination Of Pregnancy - It is the termination of pregnancy on medical grounds, and mostly known as induced abortion.
  8. Foeticide - Means wilfully and illegally causing the death of an unborn conceptus. (Embryo, Foetus or Full-grown baby).
  9. Female Foeticide - Means wilfully and illegally causing the death of an unborn female conceptus. Since the killing of an embryo or foetus in the womb is a prerequisite step of medical termination of pregnancy, it follows that wilful terminations within the ambit of the Medical Termination of Pregnancy Act up to 20 weeks of pregnancy or the Indian Penal Code, 1860 SEC 312 at any stage of pregnancy are not strictly speaking illegal and thus not considered ‘foeticide’.

    10. Foetal (Pregnancy) Loss (Wastage) - Refers to loss (death and expulsion) of a foetus by whatever means, or the death of the baby immediately after. It is the indicator of the reproductive health of women. Female foetal loss is the selective loss of the female foetus in the womb.

    11. Abortion - It is the termination of pregnancy of a non-viable foetus by any method (spontaneous or induced). An alternative definition is the spontaneous or induced expulsion of a conceptus before its viability.

    12. Criminal Abortion - Refers to an illegal performed abortion i.e in contravention of the provisions of the Medical Termination Of Pregnancy Act or Sec. 312 and related sections of the Indian Penal Code. Thus Criminal Abortions and Foeticide are synonyms.

In India, mostly in village areas of Rajasthan and Madhya Pradesh sex determination is a common practice ending up in an abortion if the child to be born is female. It is a criminal offense but is still in practice. Some common reasons behind this are-

  • Main preference is given to the male child
  • The practice of dowry system
  • The financial burden being of a girl child
  • Sex with a minor (under-age girl)
  • Rape Victims

It is the lack of knowledge and general awareness that makes women sufferers in India. Medical camps organized work hard at making people aware of preventive actions to not cause pregnancy. Abortion mostly causes the risk to the mother and can also lead to her death. In some countries, abortion is legal under some circumstances whereas in other countries penalties have been imposed on the abortion provider and the women undergoing the procedure. Mostly common in youngsters who are not careful in using protection and later to save their dignity and reputation go for abortion. Despite this, it is legally allowed under the Indian law and many women are either unaware of their medical, legal and constitutional rights to medically terminate a pregnancy. We are residing in a society where the girls are questioned for being pregnant but nobody questions the boy. According to WHO, a woman who has become pregnant as a result of rape has the right to seek safe abortion services. Every woman has the right to be a “mother” or choose not to.

TYPES OF ABORTIONS

Abortion generally evokes an image of “induced abortion”, thereby overshadowing other causes of spontaneous foetal loss (pregnancy loss). Abortions can be classified into following-

  1. Spontaneous- The process of expulsion of the product of conception (Embryo, Foetus, Baby) occurs by itself.
  2. Induced- some form of external intervention or interference (Medical, Physical or Surgical) starts and completes the process of expulsion/extraction of the product of conception.

Types of Spontaneous Abortions -

  1. Threatened-When a pregnant woman develops bleeding but the embryo/foetus is found on examination to be living.
  2. Inevitable-When a pregnant woman vaginal bleeding and the embryo/foetus on examination is found to be already dead.
  3. Missed Abortion-When the products of conception are retained in the uterus for several weeks.
  4. Complete- When the products of conception are all expelled from the uterus.
  5. Incomplete- When part of the product of the conception remains inside the uterus (usually placenta) and the woman continues to bleed.
  6. Septic- When infection of the uterine cavity occurs during an abortion.

Types of Induced Abortions -

  1. Therapeutic- When the continuation of pregnancy poses a threat to the life of the mother and the abortion is done (induced) to save the life of the mother (SEC 312 IPC, 1860).
  2. Non-therapeutic – When the continuation of pregnancy per se is not a threat to the life of the mother and the abortion is done for causes other than to save the life of the mother (provisions are further enlisted in M.T.P Act).

INTERNATIONAL PERSPECTIVE

Abortion which is a constitutional right in the United State regulates abortions from the second trimester on the basis of interests of women’s health. In the last three months of delivery, the state may prohibit abortion in the interest of the growth of fetus and woman’s health. It is legal in Mexico, the United States, and Australia but various restrictions are imposed in these different states.

In England, Scotland and Wales the Abortion Act 1967 permits women to have an abortion up to weeks and six days of pregnancy.

Northern Ireland remains the only country in the U.K where abortion is still considered illegal.

Poland's abortion law allows termination only in the cases of threat to the mother’s life or if there is a foetal abnormality.

ABORTION LAWS IN INDIA

It would be incorrect to say that abortion was illegal in India until the regulation via the MTP act came into force. Therapeutic abortions to save the life of the mother were always legal. In India, induced abortion or medical terminology of pregnancy is permitted under Sec. 312 of IPC and Medical Termination of Pregnancy Act. Yet of the 4-5 million abortions that take place annually in India, more than two-thirds of them are illegal and performed outside the statutory provisions of the MTP Act by untrained, unskilled persons and are performed under highly unhygienic conditions. Under Sec. 45 of IPC, 1860, inducing abortion or causing “a woman with a child to miscarry” is a criminal offense, both for the physician who does it or the women who procure it, except when it is done in ‘good faith to save the life of the woman’.

The ICPD has recognized that women’s right to reproductive and sexual health as being the key to a woman’s health. Thousands of women die every year due to unsafe abortions.

Women are the prime feature of today and the coming generations. They should be safe. The government has already introduced various schemes for girls like Beti Bachao, Beti Parhao where its aim is to save a girl child and educate her. Gender bias discrimination is the factor that has made a huge difference between a male and a female child. Everyone wants to have a male child rather than having a girl child.

CONSTITUTIONAL PROVISIONS

The Framers of the Indian Constitution had already enlisted Right to Health in Directive Principles of State Policy which dictates the state to provide proper nutrition, rehabilitative health services, and general awareness and with the efforts of our third pillar of democracy i.e. Judiciary it has been enforced as a Fundamental Right under Art 21 of the Indian Constitution, right to live life with human dignity. Therefore we are entitled to a good and healthy life.

The right to health also includes the right to food, reproductive rights, clean environment, health and safety emergency health care, right to liberty, etc. Violation of any of the fundamental rights can be easily be taken to the court by filing a writ petition under Art 32 i.e. the Right to Constitutional Remedies in Supreme Court and under Art 226 in the High court.

LEGAL POSITION IN INDIA

Until 1971 the legal position was that except for therapeutic abortions i.e. termination of pregnancy to save the mother’s life, causing and procuring an abortion was a criminal offense.

Justification For Pre-1971 Law

  1. To discourage illicit sexual behavior and promiscuity
  2. To protect a woman from potentially harmful medical procedures.
  3. To protect prenatal life.

Relying on the Right To Privacy, emanating from the Right to life and personal liberty, the state legalized the Right to Abortion by enacting MTP Act.

Person’s Rights vs. State Interest

The Right of a woman to abortion is not an unrestricted right. The state has the right to restrict it emanating from its legitimate interest in-

  1. Protecting the Health
  2. Protecting the standards of medical practice and
  3. Protecting the prenatal life.

The Right To Have An Abortion Is A Negative Right

The Right to abortion is a negative right in the sense that it provides women liberty from interference with her body, presuming the conception to be interference with her body. This liberty is like having equal rights with all others; to determine what shall not be done to one’s body i.e Right Of Self Determination.

MEDICAL TERMINATION OF PREGNANCY ACT, 1971

The Medical Termination of Pregnancy Act was enacted by the Indian Parliament in 1971 and came into force on 1st April 1972. The Act was revised in 1975 and amended in 2002. The act lays down the conditions under which a pregnancy can be terminated, monitored and supervised by the Chief Medical Officer of the district. The MTP Act has enlarged the scope of legal abortion and made safe abortion available to women up to 20 weeks of pregnancy under strict regulations and rules to ensure safety and prevent its misuse.

In India, unwanted pregnancies set forth problems which ultimately amount to fatal consequences for the women. Pregnancy out of wedlock is considered disgraceful. Under MTP ACT, 1971 it is legal to have abortions in India. Any woman seeking an abortion is permissible under the law to do so. Despite several laws and policies, thousands of women die every year due to unsafe abortion. The Act consists of 8 sections dealing with various aspects like time, place and circumstances under which a pregnancy may be terminated by a registered medical practitioner.

The MTP Act has liberalized the availability of abortion by extending it when the pregnancy is likely to cause grave mental or physical injury to the mother and by including rape-induced and contraceptive-failure-caused pregnancies.

PENAL PROVISIONS

Under the Indian Penal Code, 1860, Sec. 312 and Sec. 316 deal with penal provisions related to illegal abortion. This unit has taken a special place in affecting the human body as well as offenses relating to an unborn child.

Sec. 312 provides that if a person who voluntarily causes a miscarriage to women with a child will be punished and imprisoned for three years or both. It is a non-cognizable, bailable and non-compoundable offense.

Sec. 313 states punishment to cause miscarriage without the consent of the women.

Sec. 314 states when an accused intends to cause any miscarriage to a woman with her child and causes her death is punishable under this proviso.

The offense under Sec. 316 is cognizable, non-bailable and not compoundable where the offender does not necessarily cause abortion or any intention to kill the inner life, but an act likely causes its death which was not intended and not desired he/she would be guilty of the offense too.

Sec. 315 deals with an Act done with intent to prevent a child from being born alive or cause it to die after birth

Sec. 316 deals with causing the death of an unborn child by act amounting to culpable homicide.

CASE LAW

Suchita Srivastas Vs. V Krishnan[3] - In this case, it has been clearly stated that it is a Fundamental Right of women under Art 21 to choose whether she wants to continue with the pregnancy or she wants to abort it.

CONCLUSION

Today abortion methods have become much safer. To conclude, each year women suffer due to unwanted pregnancy especially in cases of rape victims. By leaving women alone in this stage leaves them with only two paths –Death and Emotion Trauma. Most women seek abortion secretly in many countries where it results in infections and internal injuries. It is totally life-threatening and unsafe because of the lack of proper knowledge of abortion and awareness. Denying women to access abortion is a form of gender discrimination.

If the Right to health does not promise good health for all the women it defeats the purpose and the government should understand the need to launch schemes related to Health Care. Most women seek abortion secretly in many countries where it has been legally restricted. It is life-threatening and unsafe. A woman should have full rights over her own body. Unsafe abortions can result in infections and internal injuries which is because of the lack of proper knowledge and awareness. Instead of making our women weak, we should make them strong to fight back and not to lose hope.

[The author, Upasana Borah is a 4th Year law student at NEF LAW COLLEGE, ASSAM affiliated to Gauhati University]


  1. https://www.drgandhali.com/p/20/types-of-abortion
  2. https://legalserviceindia.com/legal/article-724-abortion-laws-in-india.html
  3. CIVIL APPEAL NO.5845 OF 2009 (Arising out of S.L.P. (C) No. 17985 of 2009)


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