ABSTRACT
Even in the twenty-first century, the majority of women in India still lack access to appropriate abortion facilities. Women’s lives continue to be significantly impacted by abortion. They may have to terminate it at home in some circumstances since the hospital will admit them as a patient. The women in our nation continue to face hardships despite all the laws and regulations. This paper analyses the abortion laws in India. The perspective on abortion in India can be found in literature from Ancient Indian Jurisprudence, like the Manusmriti and Rigveda, among others. These ancient Indian books were written by experts in law and were not legislative enactments. These books illustrate the moral standards that prevailed at that time. The Medical Termination of Pregnancy Act of 1971 (MTP Act) liberalized the right to abortion under the current legal framework, and Article 21 of the Constitution of India, 1950 further protected it. The right to abortion raises important religious and societal questions since it touches on matters of life and death, right and wrong, and sexual morality.
Keywords: Womb, Abortion, Ancient, Contemporary, Medical Termination of Pregnancy Act
INTRODUCTION
Procreation, the ability to bear offspring is as basic as the human right itself. Even then, the right to choose whether to procreate or carry a pregnancy to full term was not always guaranteed to women. Since ancient times, women in India have been treated as caretakers and homemakers. In the patriarchal culture, women were only utilized for giving birth to children and raising them. Women’s health was harmed, often with disastrous results, by child marriage, early pregnancies, or repeated pregnancies for male progeny. Infertility is also attributed to women, which raises ethical concerns for the rest of her life. The right to procreation, end a pregnancy and the preservation of one’s reproductive health are considered to be reproductive rights of an individual. It includes the freedom to have children, end a pregnancy, use contraception and access reproductive health care. Earlier, the women’s rights, including their right to control their sexuality, fertility, and reproduction, have rarely been taken into account due to the dominance of patriarchy. Therefore the judiciary has led the charge in protecting and advancing reproductive rights in the here and now. However, the country still has a blind spot when it comes to women’s sexual and reproductive rights. Despite women’s accomplishment in eliminating gender inequalities, the harsh realities of maternal health and deaths from abortions have heavily weighed against all the advancements made.
ABORTION: MEANING AND DEFINITION
The term abortion has been derived from a Latin term ‘abortus’ which means an object which had been detached from its proper place. As per the Oxford Dictionary, abortion is defined as “the deliberate ending of a pregnancy at an early stage”.[1] As per the Black’s law dictionary, abortion means, ‘The Artificial or spontaneous termination of a pregnancy before the embryo or fetus can survive on its own outside a women’s uterus.’[2] Thus, in general parlance, it can be said that it is not allowed that the child in the womb of the mother to come out and enter this world.
ABORTION IN ANCIENT TIMES
The practice of deliberate termination of pregnancy has been prevalent since prehistoric times but it was regarded as inherently evil in all the major religious traditions of the world. In ancient Hindus religious scriptures such as in Vedas, Upanishads, Dharmashastras and Puranas, Abortion has been strongly condemned and was forbidden except in cases where the mother’s life is in danger. The sacred texts of Hinduism mentions Abortion as “Garbhahatya” meaning pregnancy destruction and “Bhurnahatya” meaning fetus murder.[3] The term Hatya in both the words means murder implying the act of killing done voluntarily.[4] The Rig Veda portrays abortion as equivalent to killing one’s parents.”The foetal slayer” is listed as one of the worst offenders in the Atharvaveda[5]. The Satapatha Brahmana makes a comparison of an abortionist- “one who has expelled the embryo from a woman”- to those who eat a cow’s flesh[6]. According to Gautama Dharmashastra[7] and Apasthambdharmasutra, a woman who commits abortion would lose her caste status which is one of the grave punishments in the Hindu society[8]. The Kausitaki Upanishad mentions abortion as Adahrmic actions like the stealing and killing of one’s parents[9]. The Manu Smriti says that a woman who commits abortion is unworthy of receiving libations when she passes away[10]. The Rig Veda (7.36.9, RvP, 2469) pleads to protect the fetuses. Abortion is against the Hindu rules of ethics of non-injury (ahimsa) which emphasizes the customary Hindu compassion for life, especially for those life-forms that are unprotected and vulnerable.
Further, in Islam also Abortion was regarded as “unforgivable evil”. It continues to be a major sin (Haram) for which one should ask Allah for pardon and repent. Similarly, the view of Buddhism and Christianity was that the abortion is as grave offence as murder. Since these scriptures are regarded as our primary sources of law and the basis of our existence, abortion was long seen as a crime in our Indian Society. However the legislature of our country figured out that in order to keep up with the changing circumstances, laws must also be modified and that outlawing abortion would significantly violate human rights by endangering the health and welfare of women.
ABORTION RIGHTS IN THE CONTEMPORARY TIMES
The provisions relating to the termination of pregnancy were enacted in the Indian Penal Code, 1860 (I.P.C) retaining the relevant of the then British law. Sections 312 to 316 of the Indian Penal Code deal with abortion and miscarriage. According to Section 312, if a person intentionally causes a woman to miscarry they may be sentenced to up to three years imprisonment, or fine or both and if the women be quick with child he shall be punished with imprisonment up to seven years and fine also.[11] This provision establishes an exception for miscarriages that are caused in good faith to save a woman’s life. However under this section, a woman who causes a miscarriage or consents to one is equally punishable. Under section 313 of the Code, whoever induces a woman’s miscarriage without her consent is subject to a life imprisonment or imprisonment for 10 years and a fine[12]. If a person intentionally causes a woman to miscarry by doing any act, Section 314 provides for ten years imprisonment and a fine as well.[13] Acts akin to miscarriage are dealt by Section 315 and 316 of the Indian Penal Code. It provides punishment for causing death of a born or unborn child at the time of birth. A violation of Section 315 is punishable if it is done with the aim to endanger the child’s life during pregnancy or after birth with the exception of situations where the act is done to save the life of the mother. It is significant that an act which causes the death of the child is not always an act of miscarriage. A fully formed fetus being destroyed before birth constitutes under this provision. When the death is caused shortly after birth it is called infanticide. Apart from this, The Medical Termination of Pregnancy Act was enacted by the Indian Parliament in 1971 using the Abortion Act of 1967 of England as a model. The Act permits registered medical professionals to terminate a pregnancy whose continuance would risk the life of the pregnant woman or would seriously harm her physical or mental health or when there is a significant possibility that the unborn child will have physical or mental abnormalities, etc. The legislation was intended to make certain exceptions to the stringent rules of the Indian Penal Code which state all abortions or “miscarriages” are illegal unless they are carried out to save the life of the pregnant woman. Abortions became lawful with the passage of The Medical Termination of Pregnancy Act of 1971 when they are carried out for one of the numerous defined reasons within a set time frame (24 weeks after conception) by a properly designated physician and under prescribed circumstances. The Act is one of the most liberal pieces of legislation of its kind in that it is the only one that recognizes the failure of a contraceptive method as a legitimate justification for abortion.
MEDICAL TERMINATION OF PREGNANCY ACT, 1971
We must look back in time to understand how people’s attitude were different about abortion, how they have changed over time and how the Medical Termination of Pregnancy Act came to be in order to fully comprehend the need for this law. When the Central Planning Board of the Government of India suggested the idea of family planning measures in 1964, a significant attitude shift ensued and a committee headed by Shanti Lal Shah was formed by the Government of India in 1964. The main purpose of setting up the committee was to comprehend the issues associated with the liberalization of abortion laws and to provide solutions to strengthen the current law. Hence, in 1970 the Government of India introduced the Medical Termination of Pregnancy Bill in the Parliament after the committee delivered its recommendations. The main objectives of the Act are:
- When the life of the mother is in danger or there is a risk to the physical or mental health of the woman.
- When the pregnancy is caused by rape or intercourse with a lunatic woman. (humanitarian ground)
- When there is a risk that the child will be born with diseases or deformities[14]
There are eight sections in the Medical Termination Pregnancy Act of 1971. This was a historic step that will free women from social and gender-based exploitation. The MTP Act, 1971 applies to married women only. The Gestational age limit is 20 weeks for all indications. If the termination of pregnancy takes place till 12 weeks, the opinion of one Registered Medical Practitioner (RMP) is required before termination whereas if termination takes place till 20 weeks, the opinion of two Registered Medical Practitioners (RMP) has to be taken before termination. Apart from these, if there is any breach of woman’s confidentiality there is a punishment of fine up to Rs. 1000.
MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021
The Medical Termination of Pregnancy (Amendment) Act, (MTPA) 2021 was passed by amending the provisions contained in the Medical Termination of Pregnancy Act, 1971 and replacing a few subsections and inserting a few new clauses in order to increase the upper gestational limit for termination of pregnancy under certain circumstances and to strengthen access to comprehensive abortion care, under stringent guidelines, without compromising service or the quality of safe abortion. The new Medical Termination of Pregnancy (Amendment) Act, 2021 attempts to expand its provisions to unmarried women as well to terminate pregnancy in case of failure of contraceptive device or method. The married women can terminate a pregnancy up to 20 weeks for the same reason.
The gestational age limit has been increased to 24 weeks for rape survivors and beyond 24 weeks for substantial fetal abnormalities. The opinion of one Registered Medical Practitioner (RMP) is required before termination if the termination has to take place till 20 weeks of gestation whereas the opinion of two Registered Medical Practitioners (RMP) is required for termination of pregnancy of 20 to 24 weeks of gestation. If termination is required after 24 weeks of gestation in case of substantial fetal abnormalities, the approval of the State level Medical Board is essential. Besides, a punishment of Imprisonment of 1 year and/or fine has been fixed if there is any breach of the woman’s confidentiality.
Abortion in India in case of surrogacy: As per the Surrogacy (Regulation) Act, 2021 the agreement to abort a surrogate child is made without consulting the intended parents. Before the surrogate child can be aborted, the surrogate mother’s written consent must be obtained together with the appropriate authority’s authorization[15] while complying with the provisions of the MTP Act, 1971 which provides the grounds for the termination. However, it does not specify the time period within which such authorization for the abortion has to be given. Further, no person can force the surrogate mother to abort at any stage of surrogacy.[16]
JUDICIAL VIEW
In the landmark judgment of Roe v. Wade[17], the Supreme Court of the United States held that the constitutional right to privacy extends to include a woman’s right to end a pregnancy. The Court noted that if a woman is forced to continue a pregnancy she may face risk such as, physical and mental issues, financial burden, social stigma and so on. A vital role has been played by the Indian Judiciary in making the right to abortion as a right to privacy during last few decades. In the landmark case of Suchitra Srivastava vs Chandhigarh Administration[18] (2009), the Supreme Court of India recognized the right of a woman to make her reproductive choice as a part of her personal liberty under Article 21 of the Constitution of India. The woman’s right to privacy, dignity and bodily integrity was upheld in this case. The most recent decision, in the case of KS Puttaswamy v. Union of India[19] (2017), was made by a nine-judge panel of the Supreme Court of India on August 24, 2017, and it recognised privacy as a basic right protected by Article 21 of the Indian Constitution. The court declared that privacy is an inalienable right, protecting the dignity that is the foundation of all of our fundamental rights, and that privacy is a personal matter. Despite the fact that various judges presented their ideas of privacy in slightly different ways, the bench unanimously ruled that privacy includes one’s ability to have control over their body, mind, and behaviour. In addition to being acknowledged as part of a woman’s right to privacy, the K S Puttaswamy ruling also recognised a woman’s freedom to choose her reproductive options. In the instance of Suchita Srivastava, it reiterated the decision made by a three-judge panel.
CONCLUSION
We are still living in a changing world when it comes to the growth of women’s rights and gender empowerment twenty years into the twenty-first century. Despite making up a significant portion of the global population, women frequently face disadvantages because of gender disparities that have long persisted in our culture. Although there have been numerous instances in recent years of social movements and supportive laws aimed at bringing about significant changes to the role and attitude of women in contemporary society, still when it comes to reproductive rights in India they have not been sufficiently provided to women. Such rights are negligible and are supposed to be lesser in existence. The sexual autonomy of women gives them a preferment right of reproduction. Womb is indeed her right along with an alleviated liberty. Such should be aggrandized a lot in every aspect. Our country is a non-discrimination based country which provides everyone its rights. In such a way, the reproductive right to women shows that there is non-existence of any gender discrimination and our Constitution prevails. A right to womb is her freedom. Nobody can have a dominancy over it. Indeed, it cannot be based upon any force and violence. Such methods are not permissible. Reproductive rights should not harm bodily integrity of a woman. Therefore, it shall be noted that granting reproductive rights is preferment for the women community and hence, womb is her right and it should not be taken away.
Name- PRATIBHA VERMA,
College- CMP Degree College, University Of Allahabad
[1] Abortion, Oxford Dictionary
[2] HENRY CAMPBELL BLACK, BLACK’S LAW DICTIONARY (2nd ed. 2010)
[3] Constantin-Iulian Damian. (2010) ABORTION FROM THE PERSPECTIVE OF THE EASTERN RELIGION: HINDUISM AND BUDDHISM, Romanian Journal of Bioethics, vol. 8 no.1, pp. 124-136.
[4] YADAV GARIMA (2018), Abortion (Hinduism), Hinduism and Tribal Religions, ENCYCLOPEDIA OF INDIAN RELIGION
[5] Atharva Veda (VII, 113.3; VII 112.3)
[6] Satapatha Brahmana (III, 1.2.21)
[7] Gautama Dharmashastra (XXI, 9)
[8] Apasthambdharmasutra (1.7.21.7)
[9] Kausitaki Upanishad (3.1)
[10] Manu Smiriti (5.90)
[11] Indian Penal Code, 1860, § 312, No. 45, Acts of Parliament, 1860 (India)
[12] Indian Penal Code, 1860, § 313, No. 45, Acts of Parliament, 1860 (India)
[13] Indian Penal Code, 1860, § 314, No. 45, Acts of Parliament, 1860 (India)
[14] Gaur, K.D. “ABORTION AND THE LAW IN INDIA.” Journal of the Indian Law Institute, vol. 28, no. 3, 1986, pp. 348–363
[15] The Surrogacy (Regulation) Act, 2021, § 3 cl. (vi), No. 47, Acts of Parliament, 2021 (India)
[16] The Surrogacy (Regulation) Act, 2021, § 10, No. 47, Acts of Parliament, 2021 (India)
[17] 410 U.S. 113 (1973)
[18] (2009) 9 SCC 1
[19] (2017) 10 SCC 1