Abortion – A Right or a Crime?

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This article has been written by Ms. Sabaat Fatima and Ms. Sukanya Biswal, law students from School of Law, Jamia Hamdard.

Introduction

Motherhood is not a term, it’s an emotion. Motherhood is the place where all love begins and ends. Making the decision to have a child — it is momentous. It is to decide forever to have your heart go walking around outside your body. Then can we even think to estimate the dilemma, sorrow or the sorry state of a mother who decides to part with her own blood and flesh. Abortion is one such decision which to-be-mothers sometimes take under circumstantial situations where they have to go against their own body and take a cruel decision to end a life. India’s abortion rate is 47 per 1,000 women of reproductive age. Now the question is, is this act of killing a part of you easy? Is it the only option left? Can abortions be avoided? What compels the girls to take such drastic steps?  A plethora of questions but the most crucial is, if this act is justified and lawful? If yes, then let’s try to understand the laws governing the termination of pregnancy and the worldwide status of abortions and its effects.

Definition

An abortion is a procedure to terminate pregnancy by removing the foetus from the uterus. In certain cases, the abortion may occur spontaneously without any interference which is known as miscarriage. Otherwise, it has to be planned by the doctors who suggest two types of methods for abortion i.e. medical abortion or surgical abortion.

Nevertheless abortion is a sinful act but sometimes due to some dire circumstances, it becomes necessary for the mother to abort the foetus.

Two​ types of abortion​ are: – ● Medical Abortion

  • Surgical abortion

In case of Medical Abortion, the women are advised to opt for pills to pass the​      pregnancy. Mainly two types of medicines are required in this procedure and the medicines are strictly prescribed by the doctors. It is mostly after the intake of the second medicine that you pass the pregnancy and doesn’t require surgery or anesthesia.

However in case of Surgical ​ Abortion, as the name suggests it requires a surgery or​            operation to terminate the pregnancy. Surgical Abortion can be done via two methods i.e.

Vacuum or Suction Aspiration & Dilatation and Evacuation. In case of Suction Aspiration, the method is performed within 12-14 weeks of pregnancy. In this a tube is inserted into the cervix and foetus is removed through suction. On the other hand, in case of Dilatation and Evacuation, the cervix is dilated and then the foetus is removed using certain instruments like forceps and curettes.  This abortion procedure is adopted after 14 weeks of pregnancy and usually this procedure is carried out under sedation or anesthesia.

Abortion Statistics and current status:

According  World Health Organization, (WHO), between 2010 and 2014, on an average, 56​ million  women induced abortion worldwide each year. 25% of all pregnancies ended in an induced abortion. The rate of abortion was higher in developing regions than in developed regions. Over half of all estimated unsafe abortions globally were in Asia. Around 25 million unsafe abortions worldwide each year were in developing countries. Each year between 4.7% -13.2% of maternal deaths can be attributed to unsafe abortion. Around 7 million women were admitted to hospitals every year in developing countries, as a result of unsafe abortion.

In plethora of cases, the women are forced by their in-laws to abort the child since the sex of foetus is female. In India, sex selective abortion has been witnessing an increasing trend. Female infanticide or the deliberate killing of new born girl child has become a modern practice. In a country like India, which has made a significant progress in various levels, the malpractice of female infanticide is still prevailing.

According to the survey,  sex ratio from 2013-2015 in Haryana is 831 female to 1000 males which is lowest of all. However, Kerala is showing a completely different pattern. Here the sex ratio is 967 females to 1000 males which are the highest of all states. So according to you, why is there a huge difference? The reason being Kerala has the highest literacy rate of 93.9% and has good health facilities which reduces the infant mortality rate. However in Haryana, the sex ratio of female is lowest because of people’s desire to have boy child due to the strong patriarchal family system.

 Law regarding abortion in India

Induced abortions have been a source of debate and controversy. In India, abortion is legal in certain situations as stated by the government and controlling units. The termination of pregnancy law for married woman, unmarried girls and rape victim varies differently as stated in the law.

The law about abortion that  MTP Act, 197​   1(Medical Termination of Pregnancy) clearly states that there is a specified time period to abort the pregnancy in India. If you end the pregnancy after the specified time of abortion then it would be treated as killing or foeticide and hence is punishable under law.

Medical Termination of Pregnancy is just like pregnancy miscarriage. The difference is miscarriage is unplanned while abortion is planned. Miscarriage takes place naturally or some times because of woman’s mistake as to not take precautions which are to be taken during the period of pregnancy. Abortion on the other hand, involves ending of pregnancy through medications given under strict prescription on a timely basis. These medicines stop the formation of pregnancy hormones which result in rupturing of walls or pregnancy.

Grounds for abortion as per MTP Act

Consent of the following kinds is required before a legal abortion by an approved practitioner can be conducted on a pregnant female:

  • If married— her own written consent.

Note – Husband’s consent not needed.

  • If unmarried and above 18years —her own written consent.
  • If below 18 years —written consent of her guardian.
  • If mentally unstable — written consent of her guardian.

Physicians approved for conducting MTP are:

  • A qualified registered medical practitioner who has helped in 25 MTPs.
  • A house surgeon who has undergone six months post in Obstetrics and Gynecology.
  • A person who has a diploma /degree in Obstetrics and Gynecology.
  • Three years of practice in Obstetrics and Gynecology for those doctors registered before the 1971 MTP Act was passed.
  • A year of practice in Obstetrics and Gynecology for the doctors registered on or after the date of commencement of the Act.

  Abortion is still considered as an inhumane and criminal act.  The Indian Penal Code1860 deals with the laws of abortion  S. 312 to S. 316.

Section 312 defines abortion as ‘Whoever voluntarily causes a woman with child to miscarry shall, if miscarriage be not carried in good faith for the purposes of saving life of the woman, be punished with imprisonment’. The provisions mentioned above states that an abortion conducted with or without the consent of a woman is a punishable offence, except if it is done for the protection of the mother’s life, and in no other circumstances abortion would be allowed as a matter of right. Any person if in bad faith, voluntarily causes a woman to miscarriage shall face punishment of imprisonment for up to 3 years and a fine. Under the Indian laws, abortion is illegal when- a woman carries a child i.e. the gestation period has begun; and a woman is quick with child, which means the mother can feel the child’s motion.

There are certain conditions under which a woman can terminate her pregnancy. These conditions are-

  • When the continuance of pregnancy is resulting in a risk to the life of a woman or of a grave injury, affecting both physical and mental health.
  • When there is a substantial risk that if the child is born, it would suffer from physical and mental abnormalities (handicap).
  • When the pregnancy is said to be the alleged outcome of rape.
  • When the pregnancy occurs due to the failure of any device or method used by a married woman or her husband for the purpose of limiting their family planning.
  • When the length of the pregnancy has not exceeded twelve weeks.
  • When the length of the pregnancy has exceeded twelve weeks but has not exceeded twenty weeks.

However, there are still several hindrances with respect to the smooth functioning of this Act. The MTP (Amendment) Bill, 2020 has been successful in bringing about these changes. This bill was approved by the Union Cabinet and has raised the legally permissible limit for an abortion to 24 weeks which was earlier 20 weeks. During the period between 20-24 weeks, the opinion of minimum two doctors will be required to proceed with an abortion. Further, it has also allowed the failure of contraceptives as a valid reason of abortion for both married and unmarried women.

Countries and their abortion Laws

  1. Poland Poland follows the laws just like India. A woman can get her abortion done in case​ of rape, incest or foetal impairment. The difference is in such cases too they get it done within the first 12 weeks.
  2. Malta – In Malta woman can’t get her abortion no matter what, even if it’s a rape case or​to save her own life she cannot abort her foetus.
  3. Malawi – Malawi allows abortion only if the woman’s life is at risk. Anyone who attempts to​get an abortion, or “forced miscarriage,” as the country’s law states, is subject to prison time to up 14 years. Same goes for anyone who helps her.
  4. Bhutan – Bhutan is another country where a woman can abort her baby if her life is in​ Moreover, illegal abortions are not considered felonies. Woman of Bhutan travel other countries to get abortion done.
  5. Iran – Abortion has been illegal in Iran since the 1979 Islamic Revolution. Although there are​ no explicit exceptions to this prohibition, Iranian law generally allows acts that are performed to save the life of a person; thus, it is commonly understood that abortion is illegal except when necessary to save the mother’s life. In 2005, the Iranian parliament passed a measure allowing abortions within the first four months of pregnancy in cases of foetal impairment that would result in economic burden; the measure was ultimately blocked by the Iranian Guardian Council.
  6. Turkey-​A 1983 law makes abortion legal in Turkey in all circumstances within 10 weeks of pregnancy. After 10 weeks, abortion is legal if the mother’s life is at risk, if her physical or mental health is in danger or if her pregnancy involves foetal abnormalities. Parental- and spousal-consent requirements are in effect, but they can be waived if the risk to the mother’s life constitutes an immediate danger.

 We have seen trends of different countries and religion plays a very important issue in global context. As we know that all the laws which exist have religion in it to some extent. The religion and law has a sort of relationship which cannot be ignored, to make it clearer let’s take an example of robbery. If we search, from where our subconscious mind gets knowledge that robbery is a bad thing? So if we start searching we will get to know that the oldest text prohibited robbery i.e. religious text(s). So from this we can say that religion is the first law which guided mankind. And abortion is wrong morally which presents the perspective of religions (every religion) and if we see from the eye of law the abortion should be strictly prohibited to that extent until a special case arises which should be left upon the conscience of the hon’ble  judge to decide as in the way as  in other cases exist. By this means the essence of justice is served.

Conclusion

There is a famous quote of Mother Teresa on abortion​ ​which says,​  “The greater destroyer of love and peace is abortion, which is war against the child. The mother doesn’t learn to love but kills to solve her own problems. Any country that accepts abortion is not teaching its people to love , but to use any violence to get what they want” 

In USA abortion is legal without any exceptions. So should we really murder an unborn child? Raising the slogans ‘Our body, our right’ gives us authority over other bodies? Saying to men that we’re not your property but treating your unborn child as your property and killing it isn’t this degrading?  As per a study it is shown that a mother’s womb is the most dangerous place in America. How can we say other people not to kill anyone where the mother is only killing her child?

Nowadays, boyfriend – girlfriend relationships are all about abortions. The need for intimacy which leads to sex and not using protection because it doesn’t satisfy both of them and then take pills to prevent pregnancy.

Why can’t they take protection if they’re not ready? Same goes for a husband-wife relationship. With modern advancements in the medical field and other, various types of protective methods and instruments are available nowadays saying that ‘We’re not ready’ is not a solution. If you’re not ready then you shouldn’t be ready for unprotected sex too.

The pseudo-intellectuals pose up the matters in the name of voicing the oppressed but why they don’t become the voice of that voiceless existence which hasn’t seen up this world from its very own eyes. The natural parent of that unborn child thinks aborting the child is the solution to the issue born because of their actions in the past. What is the fault of that creature, why does it bear their fault? Killing is killing whether one kills a fully grown up man or that unborn child and law should deal with it accordingly. Abortion and female-infanticide and other similar deeds should be covered up under la so that the purpose of justice is served. Unless there is some special case abortion should be checked up by the concerned authorities so that injustice is not done even with that unborn child.

In America daily 3,500 abortions take place and these abortions are not a result to rape or foetal impairment or danger of mother and child these are because the woman feels they’re not ready in some cases they want to be fit etc.  But this is wrong and should be punishable. A country should not legalize abortion except in certain cases which are mentioned under the heading Grounds for abortion as per MTP Act stated above. Stop killing an unborn child. Stop treating it as your property. Not ready take precautions before sex after sex aborting a foetus or taking pills or going under any surgery is concluded as murdering or killing. It’s an evil practice. Don’t make it a culture as it is punishable in the eyes of both – God and law.

References –

https://www.merriam-webster.com/dictionary/abortion

https://www.thoughtco.com/the-different-types-of-abortion-3534156

https://www.who.int/news-room/fact-sheets/detail/preventing-unsafe-abortion

https://niti.gov.in/content/sex-ratio-females-1000-males

MTP Act pdf

https://indiankanoon.org/doc/1990693/

https://www.romper.com/p/11-countries-with-the-strictest-abortion-laws-in-the-world-8477529

Image from here

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