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  • Writer's pictureRitik Agrawal

Legality of Abortion Laws in India

Updated: Jan 16

Author: Animesh

The ICFAI University, Dehradun

Issues related with abortion:

Abortion, an issue that is both complex and holy contended, poses many difficulties as of its complexity and wide range of opinions. Pro-Choice and Pro-life are two champs, which are coined for the purposes of the better understanding the debate over by rectifying the two aforementioned champs. The first champ i.e. pro-choice favour decimalization of abortion and the second champ i.e. pro-life argues for restrictions that limit a women’s right to choose at one extend. Women, who find themselves in circumstances, which either make them want to lead a mothering position or would endanger their health and well-being.

It is counterintuitive to claim that there is a continual balancing act between the rights of the unborn child and women’s liberation that must be taken into account. There has been intense moral, ethical and legal debate around abortion as it is not only a techno medical issue, but rather a socio/cultural and political issue. Relevance and importance of issues that go along with women’s right, health, sexuality and reproductive rights are issues that are need to be addressed since the consequences of these actions extend beyond the welfare of the women, as they are also peerless to society at large.

There are a lot of facts to the topic of abortion, such as illiteracy, unawareness a lack of strict laws, and others. Abortion is a woman’s safe and essential reproductive healthcare services to ensure her right to autonomy, equality, physical and mental health are adequately fulfilled. Restricting women’s right to abortion does not do anything to deter the reproductive rights movement, instead of resulting in woman restoring to clandestine abortions.

Furthermore, most of time, the mere perception that abortion is unlawful or immoral overshadows the views of woman and girls to the point where doctors, family members and the judiciary criticize them for their actions.

Understanding the Legality of Right to Abortion in India:

The Indian Penal Code (IPC) 1860, which is criminal law of the India, is worthy of taking into consideration social, moral and the ethically tumultuous nature of the Indian community has led to criminalization of induced abortion under section 312 to 316 of Indian Penal Code. Section 312 of IPC makes causing miscarriage, voluntary or involuntary, illegal under two conditions when a woman has been gestating or quickening, she is in the midst of the pregnancy. However, during the year 1971, India made abortion laws more liberal, which was enacted under the MTP Act, which were designed in order to reduce the strict and harsh or rigid provisions of IPC, which states that all abortion, miscarriage is criminal in nature unless it is done in order to save life of an otherwise healthy pregnant woman.

The IPC,1860 and the MTP Act,1971 are the sets of laws that the government is using to prevent the abortion in India. In analysing the MTP Act 1971, It is found that this act does not grant woman rights to abortion, no matter the circumstances. The decision is entirely up to the medical practitioners. If the medical practitioner makes the decision after considering the circumstances and when moral, health and other factors are part of the decision, thereafter, pregnancy termination can be approved.

The IPC and MTP Act infringe on the legal rights to privacy, health and dignity of a woman by infringing on the provision of Article 21.

In India, both by statues and by fiction, in distinction of the term “person” an unborn has been defined as a legal person. A person only obtains rights after they are born; an unborn possesses rights not yet attained when they are born. So, the state is only required to interfere during the state of viability, when the fetus is in essence a human being and can legally be aborted.

If a woman is a victim of rape, in that case or situation, she will lose her sense of dignity in the society. She is interested in surviving in a society in which other people are valued as equals. If there is a lack of demand for abortion or if she is unable to find one, there would be high chances of commencement of suicide or take an illegal abortion, which will affect her health.

However, as unborn cannot be recognized as a sentiment being, he has no interest of his own. Property rights are contingent on who is going to be born in the future. Interest is created in favour of a living person and that interest is vested in the child for their entire life when the child is born alive. By virtue of an unborn cannot choose, it lacks the capability or the means of making decisions.

A debate among Indian citizens pertaining to the time limits for mandatory abortion has resulted as Nikita Mehta’s case has called for a discourse surrounding this issue. As per the Indian laws, abortion is not allowed after 20 weeks and women, who find themselves in this circumstance have to use illegal means. When a child is born with a deformity, it becomes quite challenging for a mother to find the most efficient ways to care for the child and the child in general face difficulties when it comes to health before, during, and after every stage. Poor people in India would find it harder to gain proper medical care and be able to help grow aboard due to their not being a developed country.

In Suchita Srivastava V. Chandigarh Administration, the SC’s three judges bench took this case under consideration, which involved personal experiences of a woman who was raped and then became pregnant as a result of rape. The Punjab and Haryana High court, without the consent, decided that it would be woman’s best interest to end the woman’s pregnancy under section 3 of MTP Act, 1971 since the inability to take care for a child and not having any parents or guardians to take care is a big indicator that she is not capable of taking care of a child. The Supreme Court issued a stay on the order of the Punjab and Haryana High Court and ruled that the right to reproductive choices is connected to the right to liberty under constitution. It pointed out that taking away a woman’s choice to make decision about her own body would be infringing upon her right to privacy on a fundamental level. It further provided a differentiation between mental illness and mental retardation of the women; she still retained the right to make her own decision concerning her reproductive choices. It was declared that a termination of her pregnancy could not be ordered without her consent. Conclusion:

With no statute or legislation recognizing the time of human life, it is difficult to determine or decide when the life starts. Understanding the constitutional provisions of the India, it can be argued that one of the most significant rights a woman has is the right to make a choice to have an abortion and the right of an unborn cannot prevail over that right.

Women in India should be able to have abortions as well as any other laws that make abortion illegal are clear violations of the rights of women in India. Women’s rights are violated by the violation of their rights to health, any direct attack on dignity, any curtailment of liberty, and any interference with their privacy.

Protecting the rights of women and comply with international law, legalizing abortion is necessary to ensure women can make autonomous decisions about their own body.

The solution relies on a strong and effective law and policies striking out all the old thoughts violating human rights of woman. Presenting more effective schemes on abortion rights, reacting to the needs and awareness programme, and addressing the issue and state should take step or move forward to protect the maternal health at all times for pregnant woman and the unborn child as long as the pregnancy lasts.

Abortion access is thus fundamentally linked to social and human rights and protections for those who is capable of being pregnant. In other words, it can also be explained in relation to the rights of girls, who have the potential to become pregnant, and other woman in vulnerable situations, in order to achieve social and gender justice.

References

1. Sai Abhipsa Gochhyat, Understanding of right to abortion Under Indian Constitution, Manupatra (2011) http://manupatra.com/roundup/373/Articles/PRESENTATION.pdf

2. Baxi Upendra. Abortion and the law in India. Journal of the Indian Law Institute. 1986-87.

Vol-28-29. Article Alice Jacob, New Delhi.

https://www.researchgate.net/publication/228226392_Understanding_of_Right_to_Abortio n_Under_Indian_Constitution

3. Varuna Chakraborty, A LIBERETERIAN’S DEBATE ON THE RIGHT TO ABORTION AND RIGHT TO LIFE OF FETUS IN INDIA, A Creative Connect International Publication, https://thelawbrigade.com/wp-content/uploads/2019/09/Varuna.pdf

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