Abortion Laws: Freedom of choice to women By Navya Shree from ILS Law College
There is no law which specifically defines the term ‘abortion’. Usually the term ‘termination of pregnancy’ is used to instead abortion. Abortion is when an ovum is expelled within the first three months of pregnancy, before the placenta is formed.
It is true that discrimination against women start in the womb of the mother. Indian families usually do not prefer a girl child because it is regarded as a burden to the family. Due to such mentality of people, married women prefer abortion to prevent the birth of the female child and in this process many of them lose their lives. Therefore, previously abortion was considered a criminal activity for which the mother as well as the abortionist could be punished.[i]
Later, it came into light that, under certain circumstances women wanted to terminate the pregnancy due to many reasons such as carrying illegitimate child, pregnancy caused due to rape, etc.
The government in order to liberalise certain existing provisions relating to termination of pregnancy, enacted the Medical Termination of Pregnancy Act, 1971.
Medical Termination of Pregnancy Act, 1971
- The high risk involved in abortions of the unwanted child by unqualified medical practitioners prompted Parliament to make a law to regulate termination of pregnancy in certain cases only by registered medical practitioners.
- The Act contains eight sections dealing with various aspects like time, place and circumstances in which a pregnancy may be legally terminated by registered medical practitioners.
- According to Section 3 of the Act, pregnancy me be terminated:
- Where the period of pregnancy does not exceed 12 weeks (by 1 practitioner).
- Where the period of pregnancy exceeds 12 weeks but not 20 weeks (by 2 practitioners).
- Explanation I & II to Section 3 points out the circumstance where continuance of pregnancy would cause grave mental and physical injury when pregnancy is result of rape or when pregnancy results due to failure of any contraceptive device or method used.
- Regarding the age and consent of a pregnant woman, Section 3(4) provides that only a pregnant woman can give consent to abortion. If the pregnant woman has not attained the age of 18 years or if the woman is above 18 years and a lunatic, then the written consent of her guardian is essential. The act recognises the free choice of woman to decide whether and when will she terminate the pregnancy. But if the same is done without the consent and against the wishes of the husband, it would amount to cruelty which in turn is the ground for divorce according to Hindu Marriage Act, 1955. This question has been considered in various cases.[ii]
- Pregnancy can be terminated only at:
- A hospital established or maintained by the government, or
- A place for the time being approved for the purpose of Act by the government.
When we take into account the rights of abortion, it is also important to understand that they are reflection of reproductive rights.
Reproductive rights embrace certain human rights that are already recognized by national laws. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children. It also includes the right of all to make decisions concerning reproduction free of discrimination, coercion and violence as expressed in human rights documents.[iii]
Besides the elimination of high incidences of illegal abortions, the object of the act is perhaps to confer on the women, the right to privacy, which includes the right to decide about her own body. Important feature of the Act is to encourage reduction of population growth by permitting termination of an unwanted pregnancy of a married woman on the ground that a contraceptive device failed.
There are certain drawbacks with reference to the abortion laws in India. Courts have given different judgements in different cases. For example, in Dr. Datar v. U.O.I the abortion was not allowed since the period of 20 weeks was completed. But recently in 2016, the SC allowed abortion of a rape victim in 24th week of pregnancy. Therefore, such cases showcase differences in the opinion of the court, which must not exist.
Right of women to terminate pregnancy should be given irrespective of the marital status of women. In the absence of such considerations, the entire objective of the Act, such as to protect interest of woman will not be satisfied.
To conclude, the present legal frame work should effectively be implemented such that the sole purpose of its enactment is achieved.
[i]The Indian Penal Code, 1860
[ii]Satya v Shri Ram AIR 1983 P. & H 252
[iii]According to the 1994 Cairo Programme of Action.
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