ABSTRACT:
Abortion is a highly sensitized issue in the present modern day society which can be put forward in simple terms as the termination of pregnancy. This is wherein the issue of individual autonomy of a woman seeps in as to whether she has a legal and constitutional right to do so or should the state regulate the same owing to the prospect of looking at the unborn as a legal person?
To understand this matter in question, one can look forward to start by comprehending the term abortion and the rights related to it as is discussed in this research paper. The further segment of the paper discusses about how these rights evolved over the years and collating it with the laws in India and in US..
The hypothesis is thus to ensure reproductive autonomy which also includes every pregnant women’s intrinsic right to undergo or not to undergo an abortion.
KEYWORDS:
Abortion, Autonomy, Article 21, Privacy, Right to Life
INTRODUCTION:
“Liberty is the Right to Choose and Freedom is the result of the Right Choice”- as aptly put forward; Abortion can thus be looked upon as a highly emotional and sensitive subject which not only deeply excites controversy but also a variety of opinions. This subject matter has taken over the national and international stage in the present times being extensively discussed which is largely due to the fact in question of whether a mother has a right to terminate the pregnancy at any time she wishes or the right to life of an unborn child should prevail ; it is indeed a conundrum that is faced in the contemporary world. This quandary further also answers as to how a particular stance of an individual’s complex ethical, moral and legal issues has a stalwart relationship with the given individual’s value system.
The Right to life as guaranteed under Article 21 of Indian Constitution is a wide ranging fundamental right incorporating within it a series of rights. It states that “No person shall be deprived of his life except for the procedure established by law.” The contemplation of this article illuminates our understanding in a way whereby it talks about both man and woman in the form of person further springing up the right to abortion which sheds light that amidst the various rights which are available to women, the right to privacy is a substantial one emanating from right to personal liberty under right to life.
Thus, a women’s reproductive rights on one hand and the right to life of an unborn child is a serious question in hand which needs a resolution.
HISTORICAL DEVELOPMENT
The Right to Abortion was such an untouched and uncalled subject in the past that it significantly undermined women’s right and autonomy thereby subjecting them to years of oppression until 19th century i.e. it was not legalized per se and rather people termed it more as a murder of the foetus. This soon gave rise to the “Pro Choice” movement which is nothing but a phrase for portraying a woman’s bodily right to continue with her pregnancy or use medical procedures to bring it to an end which are not only legally approved but also medically safe.
To further view it from the world perspective we can look at how the Union of Soviet Socialist Republic became the first country to allow termination of pregnancies on a slew legal ground in 1920s. This was soon overturned in 1933 when the Nazi Germany under the rule of Hitler practiced selective abortions which can be seen through the enactment of a legislation called ” Law for the prevention of progeny with hereditary diseases” terminating abled children. These changing stances were furthermore joined by America wherein they started discussing “Planned Parenthood” which was nothing but a subtle synonym for the term of abortion. Thus, the differential positions were seen across the globe with respect to this right but what emerged as a victory herein was how Mississipi, California and Colorado emerged as the first states to allow and legalize abortion in the 1960’s and thereafter 16 of the 50 states also supported abortion rights movement in the next century.
Looking at its history before 1971 in the Indian context, it was not legalized and in fact was criminalized under section 312 of the Indian Penal Code (framed by britishers) by imposing fine as well as a prison sentence for about three years or both. This soon changed when the Shah Commission presented its report due to which an act was enforced and incorporated in 1971 i.e. the Medical Termination of Pregnancy Act in the Constitution which inferred and thus granted the right to abortion to women upto 20 weeks of pregnancy.
This act was further amended in 2021 to keep up with time and pace whereby it extended the gestation term from 20 weeks to 24 weeks for pregnant women to get an abortion which is their right and also allowed unmarried women to terminate their pregnancy based on the failure of contraceptives. Besides this, a medical board is in charge of deciding whether abortion is a feasible option for a mother in case of the subject matter of pregnancy reaches beyond 24 weeks keeping in mind the severity of the same. This newfangled law is an all encompassing of rape survivors, differently abled, minors, victims of incest etc.
Thus, these are some of the expansion in the rights of mother which are to be balanced with the life of an unborn taking place over several years.
RESEARCH METHODOLOGY:
This research paper delves into illustrative and descriptive aspects of the right to abortion or as we know right to bodily autonomy and reproductive rights of a woman synonymously with respect to the context emerging out of a developing nation like India as well as the developed nation of the world i.e. US. The data collection method employed herein incorporates analysing legal documents, case studies and the available literature as a secondary source to better comprehend and enhance our understanding of such evolving rights in the present contemporaneous era of 21st century by undertaking a thorough comparative analysis of the same.
REVIEW OF LITERATURE : JURISPRUDENCE
Women are considered to be of utmost importance since time immemorial as they keep up the cycle of human beings of all gender, colour , race alive without any discrimination by giving birth to young ones who then further procreate to maintain balance on this planet. However, if we think so then the same should also be seen in our actions whereby we provide them with equal chance to take their decision, personal liberty and most importantly reproductive rights. This was true upto an extent as evident from the formulation of various laws over the years regarding the abortion where it is only now that they have been granted with this right to choose whether or not to have an abortion as independent human beings without any peer pressure. The constitutional validity of these laws in hand can be seen from the following ways-
Article 21 of Indian constitution:
The Right to life and Personal liberty as cited in our constitution is the most rudimentary of rights whose scope has been ever growing and expanding in nature owing to the liberal interpretation employed by legislators. This can be witnessed especially after the landmark case adjudged by the apex court i.e. KS Puttaswamy v/s Union of India which explicitly took into account the same.
According to this, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
This is a major point of conflict in the right to abortion since we are looking at an unborn child who has the right to be protected and guaranteed life emanating from the same article alongside the position of personal liberty including a women’s reproductive rights by which she has a right to conception if she wishes to. The clashes taking place upon this right has made it rather more ambiguous for the courts to decide whose right should prevail and under what circumstances.
Article 14 of Indian constitution:
It propounds the aspect of equality which every citizen of India is entitled to since their birth and guaranteed by the enforcement of constitution i.e.
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
It is irrespective of their gender, caste, creed, class, sex, place of birth or religion.
The right to abortion here comes into picture owing to the moral and upto an extent legal prohibition that the unmarried women had to face to carry a child in their womb as it goes against the norms and values established over so many years which was clearly shown by how they were considered to be persona non grata in society and were neither respected nor treated properly.
Indian Penal Code, 1860:
The laws governing abortion also include the section 312 of the Indian Penal Code of 1860 where it criminalizes anyone involved in induced abortions deliberately and has used the term miscarriage for that. The term miscarriage used here would mean spontaneous abortion and the difference between the two is clearly absent or lacking which needs due rectification. However, the same section has allowed for therapeutic abortions whereby a woman can have abortion if her life is in danger and only then can an unborn child be killed inside a mother’s womb.
The sections of these kind make people wonder about the morality, ethics and law working together which can never clearly meet because somewhere or the other there would always be something which is left behind and needs resolvance.
Medical Termination of Pregnancy Act, 1971:
The medical termination of pregnancy act passed by the parliament in 1971 had some sections which were considered to be illegitimate and unconstitutional as it did not allow the women to freely exercise their right which they were entitled to according to the formulation of the constitution of India. The section 3 of the MTP Act states that a pregnancy may be terminated by a registered medical practitioner,-
(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that-
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
The amendments to this act took place in 2020 whereby the term was extended from 20 to 24 weeks for the termination of a pregnancy and also various privacy related issues associated with it were taken care of besides making it more inclusive to rape survivors.
Therefore, this shows how laws which are made for the well being of people can be amended later on to suit the needs of them and make them more adaptive.
Universal declaration of human rights:
It is the power of ideas to change the world and make it a better place for every person to reside in. There are certain articles within it which favour the right to abortion indirectly and they are as follows:
Article 1. “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
Article 3. “Everyone has the right to life and to live in freedom and safety.”
In consonance with these, the present conflict of how can the right to abortion be provided to women is resolved through which a mother bearing the child have all those rights as any other person who is not which she as a citizen enjoys. This further pertains to how every individual who is born has an inherent right to be protected and granted freedom to do whatever he or she wishes to until and unless it violates the very foundation of law .
METHOD: COMPARITIVE ANALYSIS
United States:
The right to abortion was first granted by the United States only owing to the landmark judgement of Roe v/s Wade which recognized and acknowledged women’s right across the world being earlier restrictive to certain states only in case of rape and incest. US Supreme Court thus granted legal recognition and validity to such a right endowed with as a fundamental right of liberty under privacy as mentioned in the fourteenth amendment of US Constitution. According to this, the unborn was not considered to be a person as a whole thereby emphasizing more upon women and her reproductive autonomy.
This is what it looked like on the face of it but was not always the same as it partially allowed the right to conception to women in the first trimester of pregnancy and thereafter from second trimester , the government had the rights to regulate the abortion practices in order to protect the health and safety of women. It portrays how the US has accepted each individual’s right to freedom and liberty to choose about family and child bearing without any societal pressure upon them.
Looking forward, this judgement has now been overturned in the case of Dobbs v. Jackson women’s health organization in 2022 whereby it once again is on the way to criminalize and depriving women of their constitutional right to abortion as granted since 1973. Not only this but it would also create an environment without cohesiveness and one sought with fraught.
The Right to privacy had achieved its desired status in US far more easily than in India during the landmark case of Griswold v/s Connecticut with a 7:2 ratio thereby stating the same as being mentioned in the due process clause of 14th Amendment. This further helped the US Supreme court in reaching the decision of Roe v/s Wade for recognizing the right to Abortion as under Right to privacy.
The history of Abortions in US goes back to 1821 as and when the Connecticut state first passed a law which criminalizes abortion as before it there was no such restriction in America. From this point onwards, several ups and downs have been faced by US regarding abortions and is still in a deep water to decide what should be done in this particular subject matter before them.
The important part that is to be observed here is that it is the woman whose life is impacted and not the society as a whole as she is who has to bear the the child within her and she is the one whose personal to professional life will have a consequence upon. Thus, the decision of whether to keep the child or beget it should also be bestowed upon her as providing a happy life to the child would also be under the question of whether the woman bearing it will be happy with its existence.
As for US, there are 52 states incorporated within it and every state has its own understanding of the same leading to varying opinions about it which cannot all the addressed in one go.
India:
The major debate in India on the matter of Right to Abortion is about whose life should be given more preference upon whom and the other is about the individual interests and society as a whole. The parliament and judiciary has from time to time tried to address it with certain laws, rules and regulations but the balance is always somewhat ambiguous.
In the recent judgement passed by Supreme court of India, we have seen how it has now acknowledged the rights of women emanating from personal liberty and Right to life under Article 21 of Indian constitution which has now also included reproductive autonomy. To choose about whether a woman wants to keep the child or not is a decision which should be entirely upon her as she is the one who has to bear it within her womb for 9 months and to look after it keeping aside her professional and personal life which have a large impact upon.
This same was earlier a punishable offence with a fine as well as imprisonment as mentioned under the Section 312 of Indian penal code,1860 which does not clearly states the term abortion but rather miscarriage is the term being used for it. Not only this but also the Medical Termination of Pregnancy Act passed by parliament in 1971 also restricted this right of women but to look at its positive side, it helped in curbing down female foeticide, teen pregnancies and sex determination. However, several changes to it were done in the past years by amending it which increased the gestational period for abortion from 20 to 24 weeks and also to make it more adaptable for rape survivors to ensuring right to privacy as a fundamental right entitled to every citizen as emphasized upon by the judgement of KS Puttuswamy v/s Union of India in 2017.
The history of this right dates back to the Article 21 which mentions right to personal liberty as well alongside Right to life and is also a counterpart to due process clause of US constitution. It did not include Right to privacy earlier but after a case of Maneka Gandhi v/s Union of India, the court had widened the concept of personal liberty by incorporating the freedoms mentioned in article 19 of Indian Constitution. Further, another recent case of the apex court i.e. KS Puttuswamy v/s Union of India has presented the Right to Privacy as a fundamental right under Part 3 of Indian constitution.
This issue of Abortions has always been one of debates and discussions thus dividing the opinions that people hold about it but with the each passing day of more and more laws that addresses women’s right along with giving importance to the rights of an unborn has made India more cohesive than US. It can further be portrayed by how the SC has now upheld the principle of equality which is the foundation of our constitution by providing both married as well as unmarried women to have the same rights related to abortion.
Thus, reproductive autonomy is seen as an integral component of freedom that every individual is entitled to and no matter what, the decision of the apex court has now served a guideline for everybody to ponder upon and to follow thereafter.
Therefore, the only difference that one can observe about them is how India has now been moving forward to achieve its position as that of US while US has now started moving backwards after this decision being taken since 1973.
In both these countries, what can be seen is how the issue of abortions which was earlier so easily decisive has now reached a peculiar stage where it has become so difficult for the courts to decide.
SUGGESTIONS AND CRITICAL EVALUATION:
As rightly said that there are always two sides of a coin to look for and the similar is in this case as well. After looking for all its appraisal let’s now turn to what its critics have to say about it-
● Overpriced medicines-
The termination of pregnancy can be carried out from medicines via two types , vaginal and oral both of which have exorbitant prices that are charged pharmacists. Not only this but also the medical practitioners looking at this have complete control through which they can take advantage of a woman’s helplessness and also due to this , these medicines are inaccessible and unaffordable for the poor people who then resort to unsafe procedures for the same.
● Conflict between the MTP Act and POCSO-
The major discordance between the two arises whereby in POCSO, the termination of pregnancy of a minor can be done after taking due consent from the parent or guardian and this makes it obligatory for the doctor to report the pregnancy of the similar kind. However, under the MTP Act there is a similar section 3 but it is not as obligatory as mentioned in the case of POCSO for doctors to do so under this act.
This further makes the minors vulnerable as they then tend to resort to visit the unregistered doctors and quacks for the similar purpose which can be quite dangerous leading to death of the child bearer as well.
Thus, it is high time that we remove the friction between the two and resolving this bone of contention as soon as possible .
● Registered and Trained Doctors-
The induced abortions can only be done by an expert medical practitioner who has sufficient knowledge of the particular field and also by the ones who are actually registered with the government. In India, this is a major problem whereby we face a severe shortage of such doctors making people vulnerable to approach these unregistered quacks who have no expertise to carry on the process of conception.
● The time consuming judicial process-
India which has numerous courts but still takes a lot of time to address the cases of any kind be it abortion or property and it is due to this that we have such unfriendly and maladaptive laws for the people. The similar is the case with the abortion rights being granted to women which has taken more than a decade to resolve the matter.
What should be done –Legalizing or Decriminalizing Abortions?
Before diving into what will be suitable for us to adopt, we must look for the differentiation between these two terms. In simple terms, legalizing abortion means to keep it in the law in some or the other way by identifying the grounds on which it can be granted whereas Decriminalizing on the other hand means removing criminal sanctions from abortion altogether.
These are however used interchangeably from time to time but there is no country which has completely decriminalized it except for Canada through a supreme court decision in 1988. No country has taken the step of taking out the abortion completely from the law no matter however liberal its laws are.
The world is evolving and it will be in no time soon that we will see a change where countries would also start Decriminalizing Abortions as every society is dynamic and has to adopt to the varying changes taking place over time.
CONCLUSION
Laws are the basic foundation for the maintenance of order in any society but when these same laws tend to resort to the diminution of the basic human rights to which every citizen is entitled to is quite unconstitutional thereby hampering the very substratum upon which our democratic nation was constituted. This is the scenario where our present day vexed Right to Abortion comes into picture which is a constitutionally guaranteed right to every woman emanating from Article 21 but the same cannot be considered to be true with the changing dynamics of the world and a long way is yet to be treaded upon by various countries across world for establishing and acknowledging the rights of women related to pregnancy which should be rather fundamentally available as well.