Laws Relating to Abortion and Freedom of Choice of Women

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Swatilina Barik
Swatilina Barik
I am Swatilina Barik, post-graduated from National Law University, Nagpur in the year 2018 as in Corporate Laws. Currently, practicing as an Advocate at the Hon’ble High Court, Nagpur Bench, and other forums. Founder of VR Associates & Legal Consultancy, Nagpur. I love traveling and a big foodie. Other than my profession, I like to art with waste materials.

Abortion has always been a ghastly part of the society which is untouched and undiscussed worldwide. Since mythology, it is not acceptable and termed as a sinful act. Assertions for abortion can be heard as ‘Don’t like abortion, don’t have one’, such statements of the audience particularly reflects the awareness of the abortion and people termed it as morally wrong. But it’s about the moral relativism as it comes about the morality, there is no absolute or objectively right or wrong on a particular issue, is merely a matter of preferences.

It has been considered as the constant taboo in Indian society. The pro-life and pro-choice positions are debatable in the various countries, due to the complex nature of our Indian society it has not been a bright-line. Constrained and backward talk on fetus removal because of considering it as something being without wanting to exacerbate things for the individuals who never needed pregnancy in any case. Consequently, there is a critical need to cause a dynamic and educated talk on abortion in India. It is amusing to note here that very little consideration by the media is given to the enactment concerning ladies, which are flawed or have escape clauses in it.

This paper, with the assistance of various enactments, points of reference, and insightful articles goes for examining a portion of the exceptionally significant issues in regards to abortion which have been subjected to broad civil arguments everywhere throughout the world. It has been divided into four subparts. Should a woman be given a flat out appropriate to settle on choices concerning her own body or not? Should law and media intervene in issues that are as individual as an end of pregnancy? Is such obstruction supported? If yes, at that point what ought to be the degree of such mediation? These are precisely the statements that have been tended to in the initial segment of this article. The second part examines the arrangements of Medical Termination of Pregnancy Act, 1971 in the light of the way that the Act permits abortion as a populace control measure as opposed to as a privilege and subjects the arrangements of the Act to the trial of principal rights ensured under Articles 19 (right to freedom) and 21 (right to life and personal liberty) of the Indian Constitution and other fundamental human rights. This part likewise discusses the time bar for abortion set by the Medical Termination of Pregnancy Act and examines its sacred legitimacy.

The third part at that point goes ahead to talk about the changes to the MTPA, 1971 and subjects them to strict examination in the light of late improvement of premature birth laws everywhere throughout the world. The researcher, after thoroughly analyzing and looking at premature birth laws of different nations (with emphasis on the USA and Norway), has proposed certain progressions to the draft MTP amendment bill which has likewise been talked about in the last part. In conclusion, the fourth part gives a conclusion and abridges the entire discourse on premature birth.

Historical Perspective

1.1  Medical Termination of Pregnancy Act

Margaret Sanger[1], mid-nineteenth-century activists once angrily said: “No woman can call herself free who does not control her own body.” [2] The consequence of this was she was indicted under the Comstock Act, 1914 for her book on Family Limitation. The situation by then of time was catastrophic with regards to the privileges of a lady to prematurely end. The world has pushed forward yet how far India and the general population of India have accompanied their supposition and viewpoint on fetus removal is the issue that is constantly left in ambiguity is as yet questionable. Discussing the status of women in India, it is necessary to quote the father of the nation and what he said at the time of India’s struggle for freedom. Mahatma Gandhi was of the view that no national movement for independence could succeed if so long and so great a portion of the populace was being kept back. Critical about the position of women in India he wrote:

He not only tried involving women in the freedom movement by helping them leave their customary range of familiarity yet, besides, denounced the legitimate which hobbled women. It is truly tragic that even after endless multitudinous taken by the government thus numerous educational projects; despite everything we flop as a nation and organization in curbing out the gender issues and in mindfulness regarding a woman’s correct. Before 1972, abortion was an offence culpable under the Indian Penal code and was allowed when it was expected to save the life of the mother. This law in light of the limitation forced and the strictness prompted its infringement in various cases. The colossal mayhem and the interest for progression for various years prompted the arrangement of Medical Termination of Pregnancy Act in the year 1972. At the point when an unborn is in mother’s womb, it is important to comprehend here that it is a part of a woman’s body, and if a woman does not have a right to her own body then it is an entire encroachment of appropriate to life and individual freedom ensured[3] by the state under article 21 of the Indian Constitution.

1.2 Abortion: Liberty And Freedom To Speech And Expression

  • Justice Bhagwati in the case of Maneka Gandhi v Union of India[4] concluded that the expression ‘personal liberty in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man or a woman. Adding to that Mr. Tripathi[5], in his venture “Spotlight on Constitutional Interpretation” writes that the innumerable aspects of personal liberty are impossible exhaustively to enumerate.
  • On account of State of Maharashtra v. Prabhakar Pandurang[6], the court held that the privilege to individual freedom incorporated the privilege to compose a book and get it distributed and if this there is any sort of hindrance in practising this privilege without the authority of law, at that point, it damages Article 21 of the Indian Constitution.
  • Through these cases, the scientist needs to throw some light on the power and flexibility that the press and media have in our nation. After the evacuation of Section 66A of the Information Technology Act, which contained punishment for sending an electronic mail or electronic message with the end goal of causing annoyance and inconvenience or to decisive or mislead the addressee or recipient about the origin of such messages, might be culpable with a punishment which may extend to a term of three years and fine, the online networking has turned out to be braver than any other time in recent memory and can be an ideal approach to put a stance.
  • The preamble of our constitution inter alia speaks of liberty of opinion, expression, belief, faith, and worship and in the researcher’s opinion after severing the most barbaric censorship law in India, the Supreme Court has afforded a huge gateway for the spiritualists to be the flag bearers of new thinking, opinions, standpoints, reasoning, and logic. Today, we as humans with reasonable intellect are duty-bound to protect and maintain the rights of every citizen of this nation.
  • Article 19(1) that is the right to freedom of speech and expression imparts the right to know, receive and impart information[7] and since the state must protect the freedom of expression as it is the liberty guaranteed against the state,[8] it becomes the duty of the state to protect the rights of the press and media (which includes films) and a State cannot suppress a dramatic performance or any demonstration on account of threat of hostile audience or threat of violence.
  • It is very easy to explain why there is always a threat of violence when there is a new viewpoint proposed. In India, from the ancient Vedic period, abortion is regarded as a social evil and is condemned in every religion followed in India and concerning women and men, the problem of gender issues is still prospering. We have seen in numerous cases how media trials help in identifying and repairing the loopholes present in different acts and statutes. Though identifying non-allowance of abortion as a crime committed by state is not a correct interpretation but at least we know that it is an unfair and unreasonable restriction imposed by the state.

The union health ministry drafted the Medical Termination Pregnancy Act (Amendment) 2014 after the Niketa Mehta case occurred. A Mumbai couple Haresh and Niketa Mehta emerged as genuinely newsworthy with their demand for abortion in their 26-week-old child resolved to have a natural heart distortion. Unexpectedly, there was a fuming reasonable discussion on the significant nature of closure an infant more than 20 weeks, the ethics of purposefully bringing an incapacitated adolescent into the world, and testing a law set 46 years back. The Bombay High Court did not concede the couple’s plea saying that the medical specialists had not completely expressed the child would “experience the ill effects of genuine impairments” — the pregnancy finished in unsuccessful labour. Be that as it may, the case set off a correction to the old law.

The Supreme Court handed down a victory to all women in July 2016 when it allowed an anonymous rape survivor to abort her 24-week-old fetus after she learned that it suffered from anencephaly. But earlier this year the Supreme Court denied the abortion plea of a 26-week pregnant rape victim living with HIV on grounds that it will endanger her life.[9]

The United States of America 

2.1 Abortion Laws In USA

In the year 1973, the United States witnessed a milestone judgment[10] that changed the abortion laws of the United States by presenting the idea of fetal suitability. For this situation, the Supreme Court of the US held that the abortion laws of Texas which criminalize abortion but to spare the life of the mother is violative of the Fourteenth Amendment[11] to the US Constitution and particularly the due procedure clause[12].

The US Supreme Court also held that the word “Person” mentioned in the fourteenth amendment does not include an unborn child which supports the researcher’s contention that an unborn child’s right cannot be given preference over a lady’s right to abort.[13] Only when a fetus can survive outside the mother’s womb, the state’s interest as to the protection of potential human life, but still cannot prohibit abortion when the life and health of the mother are in question. The Court held the trimester framework on abortion issue which is the following:

  1. Initially, it was perceived that amid the first trimester of pregnancy there ought not to be any State impedance. It implies fetus removal on request and the choice is left to the pregnant lady and her doctor because in early pregnancy, premature birth is sheltered and mortality is not as much as the mortality of typical labour.[14]
  2. From the end of the first trimester and until the purpose of practicality, the State may direct the fetus removal technique just when the control identifies with the maternal wellbeing. It implies the State advances the soundness of the mother.
  3. Thirdly in the third trimester when the suitability of baby (means fetus can survive outside the mother’s womb) comes to scrutinize, the State’s interest in securing potential human life can be managed. It implies that the State can disallow fetus removal. In any case, can’t preclude when the wellbeing and life of the mother are in question. It implies that the State can restrict abortion at the stage ensuing to reasonability.

2.2 Planned Parenthood Southeastern Pennsylvania v. Casey[15]

In 1992 Supreme Court chose Planned Parenthood Southeastern Pennsylvania V. Casey. For this situation, the court did not overrule Roe’s case[16] but rather reaffirmed and attempted to give another measurement to abortion right. The court held another standard to test the legality of State fetus removal confinement.[17] The Court held that the ‘undue burden test’ rather than trimester structure are to be received for deciding if State directions have some motivation behind putting significant snags in the way of a lady looking for premature birth before suitability.

The court held that the established security of the lady’s choice to end her pregnancy gets from the Due Process Clause of the Fourteenth Amendment. It announces that no State might deny any individual of life, freedom, or property, without the due procedure of law. Due process clause of the fourteenth amendment is connected to both substantive law and procedural matters.

Norway

3.1 Abortion Laws In Norway

Today, Norway, Denmark, and Sweden are qualified for elective fetus removal up to 12 weeks[18], though Finland and Iceland require endorsement from maybe a couple of restorative specialists.[19] Sweden permits elective abortion up to 18 weeks[20]. Finland has the lowest figures and the highest proportion of medical abortions. At the point when the quantity of abortion per 1000 women in all ages is looked at, the Nordic nations are on around an indistinguishable level from other western European nations. Russia and other Eastern European nations have a fundamentally higher abortion per 1000 births than nations in West-and South-Europe.

The most recent report from the World Health Organization about sheltered and perilous premature birth assesses that roughly 43.8 million terminations occurred in 2008, of which 21.6 million were risky.[21] About every single hazardous abortions are done in developing nations or in nations where terminations are inaccessible as a result of lawful confinements or constrained in health services. The areas with the most astounding rates are Latin America and Africa, with 32 and 29 for every 1000 women in mature age. One in five pregnancies ends in termination worldwide.

Abortion statistics are available from 1979 until today. Since 2006, the Norwegian Institute of Public Health has been in charge of working the registry and delivering insights. Abortions in Norway are at a truly low level. This is mainly due to a large reduction in the number of unwanted pregnancies among women under 25 years of age.[22] 8 out of 10 abortions were completed before week 9 and more than 8 out of 10 of these were medicinal.

3.2 Abortions In 2016

13,169 terminations were done in Norway in 2016. The rate is diminishing for all age bunches – from 11.7 for every 1000 women (15-49 years) in 2015 to 11.0 abortions for every 1000 out of 2016. 95.7 for every penny of all terminations were elective, and 80.8 percent occurred before the ninth week.[23]

3.3 Committees- Handled After 12 Weeks Of Pregnancy

Terminations after the twelfth week of pregnancy must be affirmed by a nearby board and can just occur if certain signs are met.[24] The extent of terminations that are completed following 12 weeks is a little more than four percent. In 2016, there was 569 council took care of terminations, around four percent of all abortions. The larger part was endorsed on account of fetal advancement variations from the norm, social elements, and additionally maternal wellbeing.[25]

3.4 Preventive Measures

A progression of measures has been acquainted with lessening the quantity of undesirable pregnancy. These incorporate sex education, simple access to contraception, emergency contraception without a prescription, and general wellbeing attendants and birthing assistants who are approved to endorse hormonal contraception to adolescents (midwives).[26] With a specific concentrate on the most youthful age gatherings, measures incorporate subsidized contraception, free condoms, a free sexual wellbeing data helpline, strengthening of the student health services, and the foundation of wellbeing communities for young people.[27]

Due to the supposition that one of the primary contributing elements to diminished abortions among young people has been getting to financed contraception, the Norwegian Directorate of Health has suggested a similar endowment for women matured 20-24.

India

4.1 Abortion Laws In India

Abortion has given a path for seething political and legitimate contentions around the world. Some political and religious gatherings regard abortion as murder, while some women’s activist gatherings trust it as a piece of a female’s principal ideal to have control over her body. We are following a 38-year-old law of fetus removal which denies abortion following 20 weeks of pregnancy unless the condition is debilitating the life of a mother.[28] This revision was made in Niketa Mehta Case. At the point when the Medical Termination of Pregnancy (MTP) Act legitimized fetus removal in 1971 and revision was additionally made, there was zero restriction. The incorporation of adaptable criteria for qualification, for example, “contraceptive failure” shows that the enactment was not intended to be prohibitive. This Act has given the privilege to women to practice their decision. In any case, the Act bombed in spreading data and giving social insurance to females. To a nearby onlooker, this won’t be a major issue because the era in which law was passed; lady’s wellbeing was not such a major worry to society.

The Act even though has a liberal qualification yet in a genuine sense is weakening the ladies. Medical experts, set up of ladies, turned into the essential guards of premature birth.[29] Indeed, it was sped up because of campaigning by a substantial populace. With a special case of a couple of creators who were worried about the lady’s wellbeing, rest were more intrigued by giving an approach to keep an addition in the populace. The absence of responsibility gave specialists huge forces to translate the law in their own particular peculiar and prohibitive ways[30]. No frameworks were set up to catch up on what specialists were stating or doing.

In India still conventional and lower class individuals have never known about something like MTP act or legitimate premature birth. Also, budgetary assignments for offices of premature birth is lacking, because of which just a modest bunch of specialists can be prepared and refreshed on the proper techniques for the end of the pregnancy at various stages. From a legitimate stance, notwithstanding, the Act appeared to put India at the vanguard of the ladies’ rights to pick individually childbearing, and as an open outlet for different issues.[31]

Inside specific years, nations received comparable liberal laws because of the vociferous ladies’ gatherings’ support yet India’s ladies association is minimal worried toward insufficiency of the MTP demonstration. One such reason could be that a large portion of the fight was won by making premature birth lawful.

There are many ladies’ associations effectively shaded in the presentation of ‘the abortion pill’ and concentrating on making mindfulness about the issues appended to particular sex abortion. Only a couple of associations, for example, The Centre for Enquiry into Health and Allied Themes (CEHAT)[32] have tried genuine endeavours to comprehend the issue of abortion and point of confinement to which it can be made legitimate and be utilized lawfully.

Abortion is a part of the sexual topic for society and a taboo that is not discussed openly. Many of the women are not aware of this fact that abortion is legal and about the norms like the MTP Act. In one rural, community-based study in Vellore district of Tamil Nadu, it was found that 84 percent out of the 195 women knew where to get an abortion, but only 13.8 percent knew they were taken by physicians. Few women know the basic facts about this medical option, it is difficult for them to demand that their right to a safe abortion be respected, especially if they already feel uncomfortable talking about it.

4.2 Procedure

Abortion can only be performed by those clinics or doctors who have a permitted license from the government regarding the termination of the pregnancy. The doctors must have certain qualifications[33] to practice the termination of pregnancy procedure. They are:

  • The doctor must have 25 years of the assistance of medical termination of pregnancy in his period of work tenure.
  • A surgeon who has six months’ experience in obstetrics and gynaecology.
  • A person who has a diploma or degree in obstetrics and gynaecology.
  • A doctor who was registered before the 1971 Medical Termination of Pregnancy Act and who has three years’ experience in obstetrics and gynaecology.
  • A doctor who has registered after 1971 and has been practising in obstetrics and gynaecology for at least a year.

Conclusion

Once Hillary Clinton said that one cannot have maternal health without having sound reproductive health, it is important to keep in mind that reproductive health includes family planning, contraceptive pills, and access to legal and safe abortion.[34] In this paper, we have discussed the Medical Termination of Pregnancy Act of India and how the laws are inflexible in this state. We have discussed the landmark judgments like Niketa Mehta case, Suchita Shrivastava case, and few recent judgments.

The establishment of only new laws, standards and statutes, isn’t a solution for the issues regarding the abortion that has been previously for quite a long time. The execution part of it needs to likewise be contemplated. Additionally, it is important to note here that women need an abortion will get one whether safe or unsafe. It sounds like an outrageous move or perhaps one which dismisses the privileges of an unborn. If privileges of an unborn are mulled over, at that point likewise the bar of 20 weeks set by the administration which is subjected to legal carefulness which at last fluctuates in various cases, can be seen lights of the current judgment of Supreme Court.

The media should be more steady with its approach and needs to more than once influence known to individuals the present issues regarding MTP To act and needs to persistently continue translating the Supreme Court choices and make it accessible to the majority as the span of informal community and media is significantly more than the judgments of the courts. Likewise, the paid media needs to arrive at an end as the nation needs significantly more than directed news. Our constitution guarantees the right to freedom of speech and expression and it’s high time everyone starts utilizing it for the betterment of the society.

References

[1] Margaret Sanger was an early feminist and women’s rights activist who coined the term “birth control” and worked towards its legalization.

[2] Sanger Margaret. Autobiography (New York: Norton, 1938), p. 13; Katz, Esther, et al., eds, The Selected Papers of Margaret Sanger, Vol. 1: The “Woman Rebel” 1900–1928 (Urbana: Illinois University Press, 2003), p. 4–5.

[3] Kshitij Asthana, Medical Termination of Pregnancy and the Right of Women over her Body, IPLEADERS BLOG, (01-10-2017, 10:00 A.M), https://blog.ipleaders.in/medical-termination-of-pregnancy/.

[4] 1978 AIR 597, 1978 SCR (2) 621.

[5] 1 P.K. Tripathi, Spotlight on constitutional Interpretation, (1st ed. 1972).

[6] 1966 AIR 424, 1966 SCR (1) 702.

[7] S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.

[8] Nirbhaya case 2014 (2) ACR 1615 (SC), 2014 iv AD (S.C.) 193, Shreya Singhal v. Union of India, (2013) 12 SCC 73, Arushi Talwar case (2012) 2 SCC 188.

[9] Saumya Rai and Sajid Sheikh, India’s abortion laws- need to change and in the pro-choice direction, THE WIRE,  (Oct. 5, 2017), https://thewire.in/134182/abort ion-pregnancy-law-India/.

[10] Roe V. Wade, 410 U.S. 113 (1973), https://supreme.justia.com/cases/federal/us/410/113/#annotation (last seen 06-10-2017).

[11] https://www.law.cornell.edu/constitution/amendmentxiv US Constitution, last seen 06-10-2017

[12] Ibid.

[13] Ibid.

[14] Kshitij Asthana, The Medical Termination Of Pregnancy Act And The Right To Women Over Their Body, (Oct 6, 2017), IPLEADERS, https://blog.ipleaders.in/medical-termination-of-pregnancy/ (last seen 06-10-2017).

[15] 505 U.S. 833 (1992).

[16] 410 U.S. 113 (1973).

[17] JUSTIA, US Supreme Court, LAW TEACHERS, (Oct.6, 2017, 11:00 A.M), https://supreme.justia.com/cases/federal/us/505/833/.

[18] Norway – the United Nations (Report by ‘Population Policy Data Bank maintained by the Population Division of the Department for Economic and Social Affair of the UN Secretariat).

[19] Norwegian Institute of Public Health, Induced Abortion In Norway Fact Sheet, (Oct 5, 2017, 9:00 P.M), NIPH, https://www.fhi.no/en/hn/statistics/birth-and-pregnancy-statistics/induced-abortion-in-norway/.

[20] Ibid.

[21] World Health Organization, Safe And Unsafe Induced Abortion Global And Regional Levels In 2008, And Trends During 1995–2008, (Oct 5, 2017, 5:00 P.M),

[22] Ibid.

[23] Supra at 21.

[24] UN Country Report, Act of 13 June 1975 Relating to the Termination of Pregnancy, with Amendments of 16 June 1975, (Oct. 6, 2017, 11:30 P.M) https://www.womenonwaves.org/en/page/4806/abortion-law-norway.

[25] Ibid.                                             

[26] Supra at 21.

[27] Supra at 21.

[28] Ibid.

[29] I pleaders blog Team,  Is Abortion Legal In India?, – 27-11-2015, Oct. 5, 2017, IPLEADRES, https://blog.ipleaders.in/is-abortion-legal-in-india/.

[30] Ibid.

[31] Ibid.

[32] Vision And Mission Of Centre For Enquiry Into Health And Allied Themes, (Oct 5, 2017, 8: 00 P.M) http://www.cehat.org/.

[33] Ibid.

[34] Christina Cauterucci, Hillary Clinton’s Debate Answer On Abortion Is Why We Need More Women In Politics (2012( Oct. 7, 2017, 10:00 P.M), http://www.slate.com/blogs/xx_factor/2016/10/19/hillary_clinton_s_debate_answer_on_abortion_is_why_we_need_more_women_in.html


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