INTRODUCTION:
Abortion and debates around it are not new phenomena but have remained a disputed subject for centuries. Abortion cannot be defined in limited words because it varies in social, political and legal contexts attracting academic, legislative, and judicial comments. According to WHO abortion means termination of pregnancy before 20 weeks of gestation.
What is common to the conflicting rights of the mother to that of the unborn child is the Right to life, a broad and dynamic concept which holds different meanings at different times. In India, the Right to life is one of the fundamental rights protected under Article 21 of Indian Constitution which states that “No person shall be deprived of his life and personal liberty except according to the procedure established by law.”
Here the word person is interpreted to be inclusive of citizen and non-citizen, men and women. Mother as person has Right to abortion as part of right to her life and personal liberty, Right of mother to abortion is to what extent limited by unborn child’s right to life is the contested and heated area of discussion which requires perusal of historical events and what laws in India says today.
But on other side what about the unborn child’s right to life. Whether Unborn is considered a person for this purpose. What do we mean by the term “Unborn” when we consider their right to life? All the intriguing questions are addressed later in the Article.
MEANING OF ABORTION
Technically, a medical procedure used to remove a foetus or embryo from the womb of the mother before 20 weeks of gestation period. There is no upper gestation limit for the procedure in cases of foetal disability as long as it is approved by a medical specialist in special cases. Pregnancy can be terminated either naturally (miscarriage) or with medical intervention (induced abortion) i.e. medications and surgical operations. . It is with this last meaning that the word is generally used.
The Indian Penal Code 1860 (hereinafter referred to as the Code) which is the basic criminal law of the country made induced abortion a criminal offence under Sections 312 to 316 of the Code.
BACKGROUND
A careful perusal of the legal provisions would reveal that the abortion laws in India till passing of the Medical Termination of Pregnancy Act 1971 were very strict. Abortion was illegal in India and was made punishable under Section 312-316 IPC and women could face 3 year imprisonment and/or fine. Debates and discussions around abortion started in the mid 1960s when the Shantilal Shah Committee was set-up headed by Dr Shantilal Shah.
The committee’s task was to look into socio-cultural, legal and medical aspects of abortion and to bring forth required abortion laws. In 1964 the committee recommended the liberalisation of abortion Laws in order to mitigate high maternal mortality due to unsafe abortion. Based on the report “The Medical Termination of Pregnancy” bill was introduced in Parliament which later got passed in August 1971.
MTP Act (Medical Termination of Pregnancy Act, 1971)
Before MTP Act, 1971 India do not have any solid and codified legal system recognizing Abortion right and females autonomy to its reproductive system. This Act came into force on 1st April 1972 and applied to all of India. The twisting part is that this law today exists in harmony with Indian Penal code which criminalises “voluntarily causing miscarriage” even when the miscarriage is with mother’s consent except when miscarriage (induced) to save mother’s life. Induced Abortion are still in practice for specific reasons:
preserve physical and mental health of mother
prevent unwanted pregnancies resulting from rape or incest
to prevent the birth of deformed child, mental deficiency, or genetic abnormality
Social and economic reasons (young age and strained financial resources).
Such Harmonious construction between MTP Act and IPC is there to Balance the two conflicting rights i.e. Mother and Unborn child. This Act allowed pregnancy termination by ‘Medical Practitioner’ in two stages:
A single Doctor opinion is necessary for abortion up to 12 weeks after conception
For pregnancy between 12 and 20 weeks, opinion of two doctors is required in order to ensure less risk to mother’s life or unborn child if born will suffer from physical and mental abnormalities or not.
Recent Amendments:
In 2021 Parliament introduced changes in the MTP Act, 1971 to allow abortions based on advice of one doctor for pregnancies up to 20 weeks. Opinion of two doctor for pregnancies between 20-24 weeks. Further, under Rule 3-B of the Medical Termination of Pregnancy (Amendment) Rules, 2021 the following categories of women are eligible for termination of pregnancy up to 24 Weeks:
Survivors of sexual assault or rape or incest,
Minors,
Change of marital status during the ongoing pregnancy (widowhood and divorce),
Women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016
Mentally ill women including mental retardation,
The foetal malformation that has a substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped, and
Women with pregnancy in humanitarian settings or disasters or emergencies may be declared by the Government.
Recognition of pregnancies outside traditional marriages by changing the definition from “pregnant married woman “to “pregnant woman” and from “her husband” to ‘her partner’. Hence not confining a situation of abortion to only matrimonial relationships and putting an end to statutory discrimination between married and unmarried women.
Inclusion of unwarranted pregnancies due to failure of contraceptives, result of rape finally ending the litigations that are pursued by rape survivors seeking medical termination up to pregnancy of 20 weeks.
Setting up of medical boards by State or UT concerned decreasing the burden on pregnant women of moving to courts to get relief leading to physical and mental anguish.
Does the MTP Act prove effective and helpful legislation?
Despite the enactment of the MTP Act a number of problems makes it hard for mothers to have access to safe and legal abortions. These problems for instance include insufficient infrastructural facilities, a lack of awareness, social stigma, and failure to ensure confidential care. Women especially unmarried face barriers of gender stereotypes about women’s sexual autonomy outside marriage. The issue of inaccessibility to clean and healthy abortion to women still persists which requires appropriate ground work to tackle it.
MEANING OF UNBORN
There is no universal definition of the word Unborn but it is generally understood as human in the nascent stage of 3 months, not yet born, or still in mother’s womb (Cambridge Dictionary). The word ‘Unborn’ is medically referred to as Foetus. The word “unborn” can be associated with the legal maxim ev ventre sa mere, which means ‘in a mother’s womb.
HISTORY
The first recognition of a child's right was founded in the Geneva Declaration of the rights of the child 1924 where it was stated the child must be given proper care to develop physically and mentally. The first draft of the international covenant (1947) provides that human rights shall be protected from the moment of “conception”. Similarly, at the 4th Geneva conference, it was made amply clear that protecting a child before birth is a fundamental humanitarian duty. The Universal Declaration of Human Rights 1948 offers similar kinds of protection to unborn children, for instance denying Death Penalty for pregnant women to protect the rights of the unborn in womb.
UNBORN:
A legal person A child, still yet to be born, is prima facie not considered legal person but for certain purposes deemed to be legal person by friction of law. There are laws in India which recognised an unborn child as person which are MTP Act, 1971, IPC 1860, Pre conception and Pre-Natal Diagnostic Techniques Act, 1994 and Section 13 of Transfer of property Act provides for transfer of property to an unborn via trust, in Hindu Succession Act interest in property exist of unborn child only if born alive out of womb, in Hindu undivided Family as per Mitakshara schools unborn child will have interest in Coparcenary property.
The interesting thing is that Article 21 of the Indian Constitution, guardian of rights to life and liberty, gives attention to living a natural person after birth till death. It is unclear whether an unborn child is covered under the scope of Article 21 of the Indian Constitution. But an unborn child was considered to be vested with few rights under various Indian Laws for specific purposes. Section 13 of Transfer of property Act- a property can be transferred in the name of the unborn by creating prior interest therein. Section 416 Crpc- states pregnant women cannot be executed or sentence of death penalty cannot be executed against pregnant women. Section 6 of Limitation Act, 1963 describes a child in the womb as a minor who can make an application/institute a suit within the same period after the disability has ceased.
LANDMARK JUDGMENT
Roe V. Wade
In 1973 U.S. Supreme Court made the right to Abortion a Constitutional Right in Roe V. Wade establishing a benchmark for abortion Laws across the world. In this case the US Supreme Court struck down laws that made abortion illegal in several states and stated that abortion is allowed up to point of viability i.e. time after which Foetus can survive outside the womb. Viability was marked around 28 weeks at time of this Judgement but with advancement in Medicine this threshold brought down to 23 to 24 weeks. Foetal viability is important to specify the point from where rights of Unborn Child (Foetus) will come into play.
Why overturned? On June 24, 2022 US Supreme Court overruled Roe vs. Wade through Dobbs V. Jackson banning most abortions after 15 weeks of Pregnancy and striking down constitutional protections for Abortion. Court held that the U.S. Constitution “does not confer a right to abortion” and that “the authority to regulate abortion is returned to the people and their elected representatives.” The U.S. The Constitution makes no reference to abortion or that there are no specific abortion rights directly and implicitly protected by any constitutional provision.
From this it can be inferred the Constitution does not prohibit the citizens of each state from regulating or proscribing abortion. It does seem upon perusal of judgement there is lack of sound and reasonable ground to support the decision of limiting Abortion rights and overrule Roe v. Wade. The Court simply exhorts the duties of people or elected representatives to deal with the abortion issue labelling simply as question of morality and ethics. The US Supreme Court had considerably narrowed down the understanding of 14th Amendment to the U.S. Constitution which guarantees fundamental Right to privacy. Interestingly, the Court consciously rejected abortion as an unenumerated right amongst privacy rights.
ABORTION IN INDIA
Abortion rights in India is a recognised right and it is true law where under Article 21 of Indian Constitution provides for “right to life and personal liberty”.
In India law does not give absolute Abortion rights to women. Abortion is permitted on medical opinion under certain situations to a specified limit. There exist many instances of Court intervention even before MTP (Amendment Act), 2021 where several orders were passed permitting women to have safe abortion beyond prescribed limit by taking into account exceptional circumstances. In recent Judgement SC identifies Right to personal autonomy/ reproductive health as Fundamental right of individual and also emphasised the state’s positive obligation to provide access to abortions making it clear that abortions are not a privilege given by the state but merely regulated by the state.
On the other hand Section 315-316 of IPC deals with offences of inflicting injury on the unborn child with intention or knowledge. Right of the unborn to claim compensation for the death of an unborn child who was yet to come in the world (Manikuttan v. M.N. Baby, 2009). The Indian Laws recognised the rights of Mother to her personal body and Right of Unborn Child to life and balance is created between both rights to consider individuality and freedom of every living person pertaining human actions and interest.
CONCLUSION:
In India a harmonious construction has been made between two competing rights of Mother and unborn child to right to life and personal liberty. Despite the fact that most foreign precedent established in Joe v. Wade overruled in Dobbs V. Jackson case India still holds the right of Mother and Unborn in consonance. Unborn child provided with different rights under various rules for specific purposes but the right of Mother to life is well established under MTP Act (amendment), 2021 and IPC of 1860 followed by restrictions. What sets Indian Courts apart from many other courts is its willingness to examine and change with the changing social realities.
REFERENCES:
Choudhary, Praveen (2019), “Abortion Law in India vis-à-vis Women’s Reproductive Rights”, Journal of Emerging Technologies and Innovative Research, 6(3) 575-578.
Gaur, K.D. (1991), “Abortion and Law in India”, Cochin University Law Review, 15, p. 123-143.
Tania, Penovic (2011), “Human Rights and the Unborn Child (Review)”, Human Rights Quarterly, p. 229 243.
Jahnavi Sindhu & Vikram Aditya Narayan, How Supreme Court Judgement strengthens the Right to Autonomy, The Wire (Apr. 10, 2022), https://thewire.in/law/how-supreme-courts-abortion-judgment strengthens-right-to-autonomy.
Mayank Bansal, Rights of Unborn Child in India, Legal study Material (Apr. 22, 2012), https://legalstudymaterial.com/rights-of-unborn-child-in-india.
Salman Kurshid, Troubling Features Of SCOTUS Decision Overruling Roe v. Wade - Salman Khurshid Writes https://www.livelaw.in/columns/troubling-features-of-scotus-decision-overruling-roe-v-wade salman-khurshid-writes-202801, Live Law, (Feb. 7, 2022), at 3-4.
