CRITICALLY ANALYSING THE ABORTION LAWS

CRITICALLY ANALYSING THE ABORTION LAWS

INTRODUCTION
From ancient times India believes in the concept of living in the family. So, in order to promote the same concept of living with unity, the miscarriage of foetuses and termination of pregnancy is strongly discouraged by society and is also a punishable offence in India. The term abortion had been defined under Indian Penal Code, 1860 and the punishments had also been prescribed between section 213 to 216. Abortion should be considered as silent killing. It should be so-called because when the abortion is being done then the ultimate harm is being done to the foetus. The living being who had not even born full-fledged or the sense of thinking had also been undeveloped and that being is being punished in a very crucial manner. Firstly, abortion should not be done and secondly, if it is being done without the consent of both the parties the willing party to do so should be punished severely. Only in some exceptional cases, the abortion should be allowed. The cases where the matter comes in between life and death.

DOMESTIC LAWS IN RELATION TO ABORTION
Abortion should be counted in heinous crimes as it is related to crime against the human body. There are various laws in India that deal with punishing the criminal for the crime of abortion. Some of the laws are enlisted below:-
Medical Termination and Pregnancy Act, 1971 (amendment 2009)
Indian Penal Code, 1860
These are the only two domestic laws that deal with the termination of pregnancy. The term abortion had been expressly undiscussed in Indian laws.
Medical Termination and Pregnancy Act, 1971 mainly focuses on the positive sort and discusses when the termination of pregnancy is allowed i.e. what are the conditions under which the termination of pregnancy which can be considered as valid pregnancy and it would not be the punishable offence. Whereas, Indian Penal Code focuses on the situations where pregnancy termination is illegal and also prescribing the punishment for the same. The Indian Penal Code does not discuss the abortion in an exhaustive manner but under sections 312 to 316 it had been discussed the same. The provisions under MTP Act, 1971 explains some of the conditions and these conditions are: The qualifications of the doctor who is going to do the termination, Conditions, in which the opinion of the doctor is final and when the second opinion is needed, what actions should be taken in case of rape victims, what measures to be taken in case the person pregnant is minor.

RECENT AMENDMENTS MADE IN MTP ACT, 1971
Various amendments took place in the Medical Termination and Pregnancy Act, 1971 from time to time. These amendments can be understood in a very simple manner. The act of 1971 says.
The unwanted pregnancy can be terminated without any reason within 12 weeks.
In case it extends beyond 20 weeks the woman has to get the certificate from the certified medical practitioner/doctor and then the legal abortion can be done with the certain circumstances prescribed.

Drawbacks in 1971 Act
The termination is done by the consent of only yours and no consent or view is taken from the woman.
The time period prescribed is 20 weeks, which is very less to find out the abnormalities because mostly abnormality in the foetus is detected between 20-21 weeks of pregnancy.
In cases of sexual assault, rape and any other physical contact with the girl especially minors in that case doctors are not ready to do the abortion even after the gestation period.
All these drawbacks lead to the delay in providing justice to the female victim. The new will had been passed in 2020 regarding the Medical Termination and Pregnancy Act in March 2020. This bill had been discussed and passed from the Lok Sabha but is still pending to be discussed in the Rajya Sabha to become an act.
These drawbacks had been resolved in the later amendments, and the solved solutions are:-
The gestational period had been increased from 20 – 24 weeks keeping in mind the condition of hospitals and the condition of rural women.

The single medical board should be set up in every state and union Territories in order to decide the reasonableness of the abortion to be done.
The name of the person who had gone through the abortion should not be revealed to anybody except who has the authority for that. This is done in order to have the confidentiality of the person.
These are the proposed solutions of the problem that had been provided in the news amendment bill of 2020 but some more necessary changes are needed to be done. This act of termination of pregnancy or abortion is done from the women’s body but one thing it can be from both the acts that, the consent of women is not taken or consent of the women is not necessary. It is one of the biggest loopholes in the MTP Act, 1971 and MTP Bill of 2020 that the consent of the women or girl is not considered necessary. As this act is going to affect the life and health of the female only.
If this is viewed from the other point of view then it can be observed that, when something is being removed or added, the permission from the person should be taken but here, in this case, nothing like this is being taken which should also be looked upon.

COMPARISON WITH OTHER COUNTRIES
In the figure given below different countries could be seen and the principle on which they follow with respect to the abortion is written in but a shell. As can be seen, that the whole world had been broadly categorised into five zones and these are:-
1.Totally prohibition on abortion
2. To save the life of the mother is a preference.
3. Preserving health is put forth.
4. Various social and Economic grounds are firstly kept in mind.
5. Pregnancy is terminated on request.

The countries that allow abortion in all the above mentioned five conditions are:-
Albania
Armenia
Austria
Angola
Belarus
Belgium and many more like this.

Whereas there are some counties which completely not allow abortion in any case and these are:-
El Salvador
Nicaragua
Vatican city
Except in these three countries, there is no other country which completely disallows or discourages abortion. Except for these countries every country considers the termination of pregnancy as reasonable and legal on the above-mentioned grounds.

CONCLUSION
From the above, it can be observed that which countries consider what conditions for abortion as legal. The countries where the termination of pregnancy is totally banned without any exception are not a good step taken by the legislatures or the lawmakers of that country. Abortion should not be completely banned as there are some conditions where a woman cannot give birth to the child and some of the conditions are mentioned above. But some other conditions may be in the case where the pregnant girl is minor, a rape victim or the woman who is pregnant is not physically fit to conceive the child. So, like this many cases can be considered. As every human being has the right to speak for oneself and make their own decisions. So, the woman who is pregnant and is above 18 years which is considered as the age of a minor should be allowed to take decisions with respect to her pregnancy and the consent form no one should matter. As in India, the abortion is not considered legal except in certain circumstances which had already been mentioned above and had been defined under Medical Termination and Pregnancy Act, 1971. There is no specific international law with respect to abortion but the UN Human Rights Commission deals with these types of matters.
One of the examples can be taken as of China. In China one-child policy had been implemented in order to control the number of children in families and if not followed this the heavy penalty was also filed. So, because of this many couples had to abort or use another option for reducing the number of children in their family. This system also encouraged the number of abortion cases in China. This should not be the case. Everything should be implemented in a legal and systematic manner so that nobody is being harmed or suffering loss and this is known as equality with justice.
-“THE RIGHT TO CONTROL YOUR BODY DOES NOT INCLUDE THE RIGHT TO DESTROY SOMEBODY ELSE.”

AUTHOR:

HARSHIKA AGRAWAL
AMITY UNIVERSITY MUMBAI