Abstract
The following research paper explores the concept of legal relations and morality with respect to abortion. This research will present the abortion from a theoretical point of view. The theoretical part includes abortion as a moral, ethical, social and legal elements. It explores the concept of abortion and its legal and morals aspects keeping in mind the present scenario. The research explores the aspect of abortion and with respect to legal relations and its morality and its prevalence in India. Abortion is multidimensional concept since it is viewed from legal, social, ethical, political and moral point of view. Abortion is looked as a part of women right which provides liberty to women and gives them the authority to make their own decision but on the other hand when it comes to India it is not only about the women right and liberty but the topic also has to consider that the right of the unborn is guarded since female foeticide is an issue in the Indian society. The research paper will explore how is an abortion and morality interlinked and how does law come into the picture with respect to abortion. The research paper will include about abortion, reason of its prevalence and how does it relate to moral, legal, social and ethical standards. The research paper will also include some suggestions which may bee too difficult to believe but can be read and considered.
Keywords- Abortion, morals, ethics, women right, legal, society, liberty.
Introduction
Women and their rights have been one of the most sensitive topics in India. The topics related to their sexuality, reproductive health etc are rarely considered as important issues to be looked upon on. This happens because of the societal pressure since the Indian society is a male dominated society, that is it has a patriarchal notion attached. Due to the patriarchal set up society the laws relating to women often becomes controversial and therefore are not taken into main stream discussion.
Abortion with respect to Indian society has been considered morally and ethically wrong since it involves taking away an unborn ’s life. The citizens who are against the concept of abortion take up the ethical or moral stand and also brings religious dimension to it where as people who support abortion take up the legal stand as contend that it is a part of women right since she should be given the liberty to decide as its her body.
In India abortion has majorly been seen as ethically and morally wrong since it involves taking away somebody’s life. The rural population in India do not understand the medical aspects of abortion and takes the support of moral and ethical aspects stating that abortion is ethically and morally wrong. Even though the laws relating to abortions have been altered to some extend keeping in mind that it is a part of women right yet there are people who are still against it and does not support the alteration made. There is still a need for more liberal outlook on this matter especially in the rural areas.
Research Methodology
The research is theoretical based and therefore the collection of sources for the research has been mainly through blogs, research papers, annual reports published by governments and through websites of various governmental and non- governmental reliable agencies and organisations.
REVIEW OF LITREATURE
Abortion can be defined as the expulsion of the foetus from the uterus before it has reached the stage of viability. An abortion can be of two types that is miscarriage and induced abortion. In a miscarriage, abortion occurs spontaneously where as an induced abortion is the one which has been done forcefully. The spontaneous abortion occurs for many reasons such as trauma, genetics, defects etc but an induce abortion may occur for four reasons. The four reasons are as follow:
- To preserve the life or mental well-being of the mother.
- To prevent the completion of pregnancy that has resulted from rape or incest
- To prevent birth of the child with serious deformity, mental deficiency or genetic abnormality.
- To prevent the birth of the child due to social or economic reasons.
Through time immemorial abortion has been considered one of the most controversial topics since it is a multidimensional concept. It is viewed from different perspective such as a legal perspective, social, ethical and moral perspective. Keeping aside miscarriage, induced abortions have been considered as immoral and ethically wrong since the people are of the view that it involved taking away the life of an unborn which is outright cruel. The people who are against induced abortions also take a religious stand and claim that aborting an unborn is equal to denying god’s gift since children are a gift of God. The rural population of India are mostly illiterates and therefore are highly superstitious who do not possess the required knowledge on reproductive health, sex. Pregnancy and abortions. The lack of medical facilities and knowledge have kept them deprived from all the necessary biological information and abortion for them is still an immoral or unethical conduct.
However, on the other hand, people who support induced abortion take the legal rationale to support the process. They claim abortion as a human right. They are of the opinion that right that a women should have complete right to decide about her reproductive health, fertility and sexuality.it is a women’s individual right, right to liberty, right to life to decide about abortion since each and every woman must have the right to decide about her own body. The reproductive rights have been internationally recognised as well and the government – internationally are taking significant measure to protect the women rights.
In the historic decision in Roe v Wade[1] the Supreme Court of United States established that most of the state laws against abortion violate the right to privacy of the constitution. This law overturned all state laws outlawing or restricting abortion that were inconsistent with the decision. In this case Joe Roe who is the plaintiff wanted to terminate her pregnancy brcause she contended that it was a result of rape. The court in this ruled that the state cannot restrict a women’s right to an abortion during the first trimester, the state can regulate the abortion in the second trimester “in ways that are reasonably related to maternal health”. The state can however forbid or restrict abortion in the third trimester as it sees fit. In response to this landmark judgement many states enacted laws limiting abortion, spousal consent laws, etc. the court also struck down several state restrictions on abortions in a long series of cases stretching from mid 1970s to 1980.
In India abortion was legalised through the MTP ACT 1971[2] which was passed on 10 august 1971 by both the Houses of Parliament. The MTP ACT 1971 is an act that provides for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. In the MTP ACT 1971. The act would permit abortion only up-to 5 months of pregnancy which is 20 weeks under the following circumstances as per section 3 of the said act [3]
- When the continuation of pregnancy can cause grave danger to the life of the women or her mental well-being.
- When there is substantial risk that the child that is to be born can be seriously handicapped due to physical or mental abnormalities.
- When pregnancy s caused due to rape
- When pregnancy is caused due to failed contraceptives used by the wife or husband.
Even after the provisions of the MTP ACT 1971 the women on India did not have full accessibility to safe abortion services and majority of the women still adopted unsafe abortion services and self -induced abortions. unsafe abortion and self- induced abortion become a major cause of death and health complications for women of child bearing age so the MTP ACT 1971 has been amended in the year 2021 in order to empower the women further by providing access to safer abortion services. The welcoming changes in the new MTP act are as follow[4]:
- The age of pregnancy that can be legally terminated has been increased to 24 weeks from 20 weeks in certain special categories of women. It certainly does not specify the certain special categories but will mostly include rape victims, incest victims, differently abled women, minors etc.
- There is no upper limit to the gestation age for termination of pregnancy if the unborn child is found to have a substantial abnormality according to the medical ability.
- The word married has been abolished from the new MTP ACT and it has been replaced by the word woman.
- There is a special mention of maintaining and respecting confidentiality of the woman intending to undergo abortion within legal boundaries. How-ever involvement of a parent or guardian is necessary if a minor has to undergo abortion under the legal boundaries.
Major case laws:
- Dr Rajeshwari vs State of Tamil Nadu[5]: In this case an unmarried girl of 18 years was praying for issue of direction to terminate the pregnancy of the child in her womb on the ground that bearing an unwanted pregnancy of the child has caused her immense stress and anguish and she has been mentally affected due to the pregnancy. The court in this case allowed the woman to terminate her pregnancy.
The above stated case enumerates the point that abortion is legalised in India and a woman has the right to abort the unborn if the reason satisfies the provision of the Medical Termination of Pregnancy Act 1971.
- Shri Bhagwan Katariya and Others vs State of MP[6]: In this case the woman was married to Navneet and the applicants in this case is are younger brothers of Navneet. After the complainant conceived pregnancy the husband and other family members took an exception to it, took her for abortion and without her consent got her abortion done. The Court in this case opined that if we refer to section 3 of the Medical Termination of Pregnancy Act 1971, a doctor is entitled to terminate the pregnancy under particular circumstances and if the pregnancy was terminated in accordance with the provisions of law it is presumed that it was done with the consent of the woman. How-ever in this case the consent of the woman was missing and the abortion has left a scar in the heart and mind of the woman and the doctor is therefore liable.
This case enumerates the stance that the right to decide about abortion lies in the hand of the woman carrying the child. Only she has the right to decide about her reproductive health and no body else. The right to abortion is a fundamental right of privacy and the judiciary is playing a vital role in securing the fundamental right of women.
The Indian law not only secures the right of the woman carrying the unborn but also the right of the unborn. The INDIAN PENAL CODE 1860 ascertains the stance from the point of the unborn. Section 312[7] states that
Causing miscarriage – whoever causes a woman with a child to miscarry shall if such miscarriage be not caused in good faith for the purpose of saving the life woman.be punished with imprisonment of either description of a term which may extend up to three year or with fine or with both, and if the woman quick with the 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.
Explanation: A woman who causes herself to miscarry is within the meaning of the section.
From this provision it can be enumerated that Indian law not only protects the right of a woman by legalising abortion but it also protects the right of the unborn. The section 312 of THE INDIAN PENAL CODE 1860 protects the right of the unborn. It punishes the person who causes miscarriage to the women and the explanation in this section also clarifies that a woman who miscarries herself is also punishable under SECTION 312 OF THE INDIAN PENAL CODE 1860. The word miscarriage here is used synonymously with abortion. this section not only raises the question of right of woman over her body but it also raises the question of right of the unborn child. This statute ascertains the stance from the point of the unborn and explains that if the abortion is done in good faith and to protect the life of the woman it is not an offence but if the abortion is not in bona fide the person who causes abortion to the pregnant woman is punishes with either imprisonment or fine or with both. The section also states that a woman who miscarries the child herself is also punished under THE INDIAN PENAL CODE 1860 with imprisonment of seven years and fine. Hence the judiciary not only protects the right of the woman by legalising abortion but it also protects the right of the unborn child through its statutes.
Suggestions
“Knowledge is power, information is liberating, education is the premise of progress in every society in every family” – KOFI ANAN
As the quotes states that education is the premise of progress which is needed in every society in every family and one who has knowledge and information possess both power and freedom.
Abortion is a multidimensional topic and for India to reach to a proper conclusion first it should educate the people of the country on the importance of women right and reproductive health of women. The state should take the initiative of educating the rural people especially who still consider abortion as immoral and are against it. They should be given proper knowledge and information on sex, fertility. Abortion, reproductive health etc and only then they can understand abortion and how it is interlinked with the women rights. Besides educating the rural population the state should also enact some measures that will help in providing safe abortion services in India because in India even after legalising abortion safe services are not provided and women are subjected to unsafe abortion which is detrimental for the health of the woman undergoing it and is also a major cause of death among women. There-fore the state should focus on educating its people about the current scenario, the recent laws and its importance where as also take adequate steps to provide adequate abortion services for women who are availing the right to abortion due to certain special circumstances as mentioned in section 3 of THE MTP ACT[8].
Conclusion
Abortion is a multidimensional topic and the issue should be left at the discretion of the woman bearing the child. The woman who is carrying the unborn child should be given the right to decide about her reproductive and health and decide whether she wants to continue her pregnancy or terminate it. The law while conferring this right to women should also keep in mind that the right of the unborn shall not be affected and necessary protection has to be provided to them. The law t has to take the responsibility to provide safe abortion services to women who want to undergo the abortion but at the same time it should also ensure that the right of the unborn is not being violated by conferring the right on women to terminate her pregnancy. As a society we should provide utmost love and care to lonely and scared women who want to undergo abortion because of an unwanted pregnancy and try to reduce their mental anguish and stress. we need to offer women with unwanted pregnancies with utmost love and support so that they can choose some other alternatives to abortion too. The law and society together should combat this issue and help in finding appropriate solutions.
Name: ARCHISHA KASHYAP
College: KLE SOCIETY’S LAW COLLEGE, BENGALURU.
[1] (1988)44 DLR(4th)385
[2] MEDICAL TERMINATION OF PREGNANCY ACT 1971(act 34 of 1971)
[3] Section 3 of the Medical Termination of Pregnancy Act
[4] https://www.shethepeople.tv/top-stories/opinion/abortion-new-mtp-bill/
[5] 1996 CriLJ 3795
[6] 2001(4) MPHT 20 CG
[7] The Indian Penal Code 1860
[8] Medical Termination of Pregnancy