Abortion Laws in India: A Study
Nikita Mehta Case
(2008)110BOMLR3293
The Bombay High Court refused Harish and Nikita Mehta's plea seeking
an abortion, after discovering that the unborn child had blockages in
heart. The Mumbai High Court said that it was up to parliament and not
the court to change the provisions of Indian law, which specifies that a
pregnancy cannot be terminated after 20 weeks.
The HC said that there was no medical evidence to support the Mehta’s
abortion plea for their 25-week-old foetus. It also said that the case is
not exceptional to use discretionary powers.
The plaintiff’s ground was that the child is suffering from a congenital
heart block that would require a permanent pace-maker, meaning that
the child would have a disabled life and would also hurt them financially
which they would not be able to afford in the long run.
They were also citing doctor’s report that asserts that the child will
suffer critical problems even with a pace-maker.
Questions that arose
Whether the present statutory law should be
amended ?
Whether the statutory time limit for abortion must
be increased from the currently permitted twenty
weeks of gestation to twenty four weeks or above ?
Whether the law is contrary to the sections of IPC ?
Whether the present law violates the Right to Life
under Article 21 of the Indian Constitution ?
Abortion Law of the Country at a
Glance
Medical Termination of Pregnancy Act, 1971:
Aims to improve the maternal health scenario by preventing large
number of unsafe abortions and consequent high incidence of
maternal mortality & morbidity
Legalizes abortion services
Promotes access to safe abortion services to women
De-criminalizes the abortion seeker
Offers protection to medical practitioners who otherwise would
be penalized under the Indian Penal Code (sections 315-316)
Legal abortions
Abortions are termed legal only when all the following
conditions are met:
Termination done by a medical practitioner approved by
the Act
Termination done at a place approved under the Act
Termination done for conditions and within the gestation
prescribed by the Act
Other requirements of the rules & regulations are
complied with
When can pregnancies be terminated?
Section 3 :
Up to 20 weeks gestation
With the consent of the women. If the women is below
18 years or is mentally ill, then with consent of a
guardian
With the opinion of a registered medical practitioner,
formed in good faith, under certain circumstances
Opinion of two registered medical practitioners required
for termination of pregnancy between 12 and 20 weeks
MTP Act: Place for conducting
MTP
Section 4 :
A hospital established or maintained by
Government
or
A place approved for the purpose of this Act
by the Government.
Indian Penal Code
Section 299
Explanation 3 : the causing of the death of the child in
the mother’s womb is not homicide. But it may amount
to culpable homicide to cause the death of a living child,
if any part of that child has been brought forth, though
the child may not have breathed or been completely
born
Contd….
Section 312
If any person voluntarily cause a women with child to miscarriage not
caused in good faith shall be punished with imprisonment upto three years,
or with fine, or with both.
Section 313
Whoever causes miscarriage as described in above section without the
consent of the women shall be punished with imprisonment for life, or with
imprisonment extending upto ten years, and shall be liable to fine.
Section 314
Any act done with the intention to cause miscarriage shall be punished with
imprisonment upto ten years, and shall be liable to fine.
Section 315
Whoever before the birth of any child does any act with the intention of
thereby preventing that child from being born alive or causing it to die after
its birth, and does act prevent that child from being born alive, or causes it to
die after its birth, shall, if such act be not caused in good faith for the
purpose of saving the life of the mother, be punished with imprisonment of
either description for a term which may extend to ten years, or with fine, or
with both.
Constitution of India
Article 21: Right to life and Personal Liberty
Right to Life means the right to lead meaningful, complete
and dignified life. It is something more than surviving or
animal existence.
Personal Liberty is concerned, it means freedom from
physical restraint of the person by personal incarceration.
no one shall be deprived of his life or personal liberty
except by procedure established by law and this procedure
must be reasonable, fair and just and not arbitrary
Unni Krishnan v. State of A.P. and the Apex Court itself
provided the list of some of the rights covered under
Article 21.
o Right to privacy
o Right of every child to a full development.
o starvation deaths,
are some of the rights among the other mentioned in
the list
Analysis of Abortion Law in India
The question that arises is why the cut-off must be marked at
twenty weeks?
The answer lies in the fact that the baby becomes viable at
this stage.
It becomes more and more capable of independent survival
and from seven months of gestation onwards, the chances of its
survival upon birth become bright.
In addition to state interest, the unborn find explicit or implicit
protection through many international and national laws.
Indian legislations on family and succession have provided
explicit statutory protection to rights of the unborn by guarding
their interests in property.
Difficulty arising due to this restriction
A pre-natal diagnostic test would be meaningless without the
possibility of correcting the problem in uterus or terminating
the pregnancy. Many a times the problem is detected after
twenty weeks limitation.
The MPT act does not define “physical or mental
abnormalities as to be seriously handicapped” there by
creating ambiguity and speculation.
The M.T.P. Act also does not classify the pregnancy period so
that the woman's interests and the state's interests could be
given predominance in one's own spheres.
Each woman has the sole right to make decisions about what
happens to her body.
Most abortions are carried out on the grounds of safeguarding
the woman's mental health.
Contd. …..
A woman does not want to carry her pregnancy, she
would carry it and then abandon the new born child.
The family of the disabled child bears almost all the
burden of care, support and even financial costs. Unlike
other countries, no comprehensive social support
system for people with special needs exists in India
The unborn too has the right to live a life with dignity
but where the woman is reluctant to carry on the
pregnancy this right shall be violated.
If abortion laws are restricted, the women resort to
some unhygienic measures to abort the fetus.
Laws in some other countries
All abortion laws formulated by various
countries generally fall under one of four
main categories :
Illegal when it is prohibited without exceptions
Very restrictive when it is done only to save life of
the pregnant woman
Conditional when it is permitted on several grounds –
to preserve the health of woman, in case of rape or
suspected congenital abnormality of foetus, and
Liberal when abortion is performed ‘on request’ or
‘for social reasons’.
UNITED KINGDOM
Abortion Act, 1967 applies in England, Scotland and Wales, but not in
Northern Ireland .
Up to 24 weeks two doctors must decide that the risk to a woman’s physical
or mental health or the risk to her child’s physical or mental health will be
greater if she continues with the pregnancy than if she ends it.
There is no time limit on abortion where two doctors agree that a woman’s
health or life is gravely threatened by continuing with the pregnancy or that
the fetus is likely to be born with severe physical or mental abnormalities.
In the event that an abortion must be performed as a matter of medical
emergency a second doctor’s agreement does not need to be sought.
Providing that two doctors confirm that her need for an abortion fits the legal
criteria.
A woman does not need the consent of her own doctor, her partner or her
family to have an abortion. The biological father has no rights and cannot, in
law, stop an abortion.
Women under 16 can have an abortion, without parental consent.
UNITED STATES
In the United States of America, the Supreme Court held the
right to privacy and ended the ban on birth control back in 1965,
in the case of Griswold v. Connecticut.
Abortion in the United States has been legal for women
since the Supreme Court decision in Roe v Wade of
January 22, 1973.
The Court held that the issue of abortion and abortion
rights falls under the right to privacy.
In 1992 Planned Parenthood v Casey upheld the validity
of abortion on the ground "If the right of privacy means
anything, it is the right of the individual, married or
single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person
as the decision whether to bear or beget a child.“
Freedom from interference in one's privacy and family life
is protected by Article 12 of the Universal Declaration of
Human Rights, Article 17 of the Civil and Political Rights
Covenant, Article 11 of the American Convention, and
Article 8(1) of the European Convention.
CANADA
Abortion in Canada is not limited by the law (on-demand, no time
limit).
In 1969 a new law allowed abortions as long as a committee of
doctors signed off that it was necessary for the physical or mental
well-being of the mother.
In 1988 the Supreme Court of Canada ruled in R. v. Morgentaler
that the existing laws were unconstitutional and struck down the 1969
law.
The court noted that "forcing a woman, by threat of criminal
sanction, to carry a foetus to term unless she meets certain criteria
unrelated to her own priorities and aspirations" and that the law
"asserts that the woman's capacity to reproduce is to be subject, not
to her own control, but to that of the state" were essentially a breach
of the woman's right to security of the person, which is guaranteed
under Canada's Charter of Rights and Freedoms.
In 1989 the Supreme Court of Canada in Tremblay v. Daigle held
that only the woman could make the choice; the father had no legal
say in a woman's choice to terminate a pregnancy or carry it to
completion.
Republic of Korea
Prior to 1953 abortion was strictly prohibited u/s 269 and 270 of the
Criminal Code of the Republic of Korea on any grounds.
1973 the Maternal and Child Health Law established exemptions from
this prohibition.
Abortion may be performed only if :
the pregnant woman or her spouse suffers from an hereditary mental or physical
disease specified by Presidential Decree,
if the woman or her spouse suffers from a communicable disease specified by
Presidential Decree,
if the woman or her spouse suffers from a communicable disease specified by
Presidential Decree,
if continuation of the pregnancy is likely to jeopardize the mother’s health.
An abortion can be performed by a physician within 28 weeks of
pregnancy.
The consent of the pregnant woman is required, as well as that of her
spouse if she is married.
LAST WORDS
Legal regulations have abrogated the women's right to
liberty to a great extent, particularly with respect to right to
self determination, right to have control over her body and
right to abortion
Right to abortion should be liberally granted to the women
at least up to the first 12 weeks of pregnancy unconditionally
Instead of framing regulatory measures on abortion state
should concentrate in raising the status of women in society
Education is necessary for empowerment of women and
achieving equality in status in society
Economic empowerment of women will also reduce the
dependence on sons as bread earners and care takers in old
age.
