In favour of Abortion- From a Lawyer’s Perspective

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abortion-posterAccording to HWV Cox medical jurisprudence and toxicology, 7th edition by P.C. Dixit [highlight]ABORTION IN ITS LEGAL SENSE MEANS EXPULSION OF PRODUCT OF CONCEPTION [/highlight]from  the uterus at any period prior to full term and [highlight]in the medical sense abortion means “spontaneous or induced expulsion of product of conception before inability of intra uterine life”[/highlight]. In the present age of Human Rights , where the issues of individual autonomy, right to privacy, procreative liberty are gaining utmost importance, the right to reproductive freedom ( INCLUDING RIGHT TO  ABORTION ) has come to centre stage of Human Right’s debate. Considering this only, if we take a mother who is directly related to a foetus is a human first. That human has a right to choose, right to one’s own body , right to privacy under article 21 of the Constitution Of India.

A woman has a right to her life, right to her liberty and to pursuit her happiness .Each and every woman has an absolute control over her body, most often known as BODILY RIGHTS.

Another right which we would like to throw light upon is that of the very new and efficient rights known as REPRODUCTIVE RIGHTS OF THE WOMAN. It talks about the Right of all the women to decide freely the number, spacing and time of the children along with her husband . It is the woman who has to undergo the 9 months of pain and problems, the labour pains and many other issues because the foetus is inside her body only.

But we would present the extreme pro-choice argument is that a women’s right to control her own body is absolute and that abortion is acceptable under any circumstance. The embryo/foetus which is incapable of surviving outside the mother’s womb is not cognizable as a human life separate from the mother’s body.

In PATON vs. BPAS when asked to rule on an application to prevent an abortion taking place, Sir George Baker declared that “the foetus did not have a right of its own at least and until it is born and has a separate existence from its mother.

Section 299(3) of IPC states : THE CAUSING OF A DEATH OF A CHILD IN MOTHR’S WOMB IS NOT HOMICIDE.

International Courts and tribunals generally held that the references to every human being or everyone or every person do NOT include an unborn foetus. Abortion Act,1967 of the UK in its Article 2 does NOT confer an absolute RIGHT TO LIFE to the unborn.

In a parliamentary debate held in Canada, Mr.Woodworth said “ Until a child’s little toe pops out of the birth canal, the child is not recognized as human being. Moreover,The foetus lacks the legal status of its mother and it does not even have a full moral status” In one of the most famous and influential articles ever written on abortion, Judith Jarvis Thomson tried to avoid the need to settle the question of whether and to what extent the foetus has moral status. She asks you to imagine that you wake up one morning and find yourself in a hospital bed connected to an unconscious man.The man is world famous violinist with a kidney disease. He will only survive if he is plugged into someone of the same blood type.You are in this position because you were kidnapped by the society of music lovers.Do you have to give your liberty in this way for 9 months to save the life of this violinist? Thomson argues that even if a foetus has moral status equivalent to a normal adult, a woman has no duty to carry a foetus if she has no duty to remain connected to the violinst in this situation.Further, she holds that you would be under no moral obligation to allow the violinist to use your kidney for 9 months. We would to refer a case in front that is Re F (in utero),in this case the court appeal refused to make foetus a ward of court to protect it from its mentally disturbed nomadic mother. The fetus was said to lack the legal personality necessary to make it a ward of court.

MTP Act itself do NOT protect the unborn child. Any indirect protection it gains under the act is only a byproduct resulting from the protection of women. The rights provided as well as te restrictions imposed under  the statute show that the very purpose of the state is TO PROTECT A LIVING WOMAN FROM DANGER. IT IS THE PROTECTION T OTHE MOTHER THAT PROTECTS THE UNBORN.

ABORTION IS LEGAL IN CIVIL LAW . We have justified in the above points that the fetus is not a human being and someone with life in the eyes of law The abortion act 1967(the infant life act) as amended in 1990 now provides that no offence is committed under the 1861 or 1929 acts when a pregnancy is terminated with the accordance with its provisions. Now lets move towards the aspect of Abortion and why is it baseless to go against and have laws which opposes it.

In India, the legal provisions have not yet had the same impact and abortion appears to be still prevalent amongst many levels of society. Either from the sheer necessity where further children in a large family cannot be afforded or from the desire to avoid the stigma of unwanted pregnancy. Woman whose physical and/or mental health were endangered by pregnancy or woman facing the birth of a potentially handicapped child or the pregnancies in lunatics or the pregnancies in unmarried girls due to rapes or the pregnancies due to the failure of sterilization seek only one remedy and that is ABORTION.

In determining whether continuance of pregnancy would involve  risk of injury to health as mentioned in the MTP Act, account may be taken of the pregnant woman’s actual or reasonably forseeable environment. This is a ‘social cause’ which relates the mental and physical state of the woman to unfavourable circumstances in her home environment, such as the existing number of children, her socio-economic condition, housing problems and any other facet of life which would make the addition of another child in her family an intolerable burden. Mothers can be impoverished and single . And as mentioned in NYAYA DEEP, Official Journal of NALSA, Volume 11 Issue 2 : Increase of child born in such situations can result in an increase of social ills, including increase in crime, broadening of population base of those living below the poverty line and ballooning of the state welfare rolls.

[highlight]Another term which came into account is that of POLITICAL PRAGMATISM.  : where the abortion is illegal, some women nonetheless seek to end their pregnancies: resort to unsafe methods, endanger their lives with something called BACK-ALLLEY ABORTIONS. Not only this, Laws against Abortion violates many other Rights.[/highlight]

For instance  Abortion Rights advocate hold that a woman’s right to determine what happens with her body(including whether to carry a pregnancy or to terminate) is PRIVATE and not to be interfered with/by any outside influence. Also, to what EXTENT SHOULD THE STATE interfere with a women’s body to PROTECT THE PUBLIC INTEREST or to  WHAT EXTENT SHOULD THE SATE PROTECT THE GENERAL INTEREST, after it means controlling a women’s body! The RIGHT TO FREEDOM OF EXPRESSION AND ACCESS TO INFORMATION has been used to argue for the right of woman to decide FREELY and RESPONSIBLY on the no. And spacing of her children. The famous landmark case of GRISWOLD vs. CONNECTICUT shows that this Right to privacy holds true in which US SC ruled that the

Constitution protected a Right to Privacy.

The SC of India has said “ THE RIGHT TO  PRIVACY IS IMPLICIT IN ARTICLE 21C OF THE CONSTITUTION OF INDIA AND RIGHT TO ABORTION CAN BE READ FROM THIS ARTICLE.”

We can justify this statement of SC of India through many of the ruling on cases like V.Krishnan vs.. G. Rajan. , Dr. Rajeshwari vs. State of Tamil Nadu .

Now coming to the landmark case of  ROE vs. WADER , we can actually give an answer to every question  which is in regard with the morality and ethnicity of this topic. The US SC held that the LAWS AGAINST ABORTION VIOLATES CONSTITUTIONAL RIGHT TO PRIVACY. AND THAT ABORTION REMAINED LEGAL UNTIL BIRTH.

Next we move on to the famous case of MANGLA DOGRA AND OTHERS vs. ANIL KUMAR MALHOTRA AND OTHERS. An abortion was  done in this case because the women involved here does not wanted to give birth to the child because of the prevailing heat in her relation to her husband. The court did NOT said that the abortion is illegal and not morally correct but it gave women some new rights which clearly shows that the women is having her own rights and nobody, not even the state can violate the,. The court said : She should be mentally prepared to concieve, continue the same and give birth to child. The unwanted pregnancy would naturally effect the mental health of the pregnant women only.

Justice Jitendra Chauhan said : If the wife has consented to matrimonial sex and created sexual relations with her own husband, it does NOT mean that she has consented to conceive a child. It is the  free will of the wife to give birth to his child or not! Though the religious code and society in general condemned abortion , BUT IT WAS OBVIOUSLY A COMMON PRACTICE IN PRE-COLONIAL INDIA. As Professor Das Gupta observes, the most important reasons for this was the custom of child marriage and the prohibition of remarriage among widows of higher castes, who were forced to take recourse to illegal abortion as the only way to get rid of their unwanted pregnancies, often aided and abetted by sympathetic relatives to protect family honour. Village dais used to carry out abortions in a routine 

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manner, mainly using the various indigenous plans and herbal agents. One fifth pregnancies in India are unwanted or unplanned. And all these pregnancies are aborted illegally  which instead of helping add to the misery of  the women. Halth, money and risk to death are few of the very important things to mention.  And the State also recognizes this thing. We can support this with the famous MTP ACT where the abortion was made legal in 1971 and was implemented in 1972. It guarantees the rights of women in India to terminate unintended pregnancy by registered medial practitioner. The act provides that abortion is not unlawfull if certain conditions are satisfied .

HWV Cox Medical Jurisprudence and Toxicology mentions in its very first paragraph that In the UK there has been a dramatic fall in deaths from abortion.This is partly due to the extensive provision of the legal abortion. The right of a woman to her private life has been the basis on which a number of international bodies have applied the RIGHT OF A WOMAN TO HAVE AN ABORTION.

Article 1 of the American Deceleration Of Rights and Duties of man and the Inter American ommission of Human Rights has legalised the abortion until the end of the first trimester. Not only this but focussing on the points mentioned above, India has been a signatory in the International Conference on Population and Development held in Cairo, 1994 which basically features the key point which looks out for ensuring women’s ability to control their own fertility. As we can see, Various governments of various countries including India is understanding the use of Abortion and is trying to overcome the socitey’s ill notion of the same. The legal and moral debates revolving around abortion needs a fresh approach, much in assonance with the technological development  Pregnancy termination during the first three months using modern methods such as vacuum suction has been found to be extremely safe with a mortality rate lower than the delivery at full term.

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[highlight]What remains immoral at one instance may well become moral in the gradual process of time ( eg: modern reproductive technology) In the present age of human rights the consistent demand of right to abortion should NOT be ignored as by denying women the right to make sound  independent decision regarding abortion and family planning and imposing barriers to her access to safe and legal abortiom, one would be violating a wide range of HUMAN RIGHTS such as right to privacy, right to information and Rigt to reproductive freedom. I would in the end would like to say that PREGNANCY IS NOT ONLY CHILD BEARING BUT CHILD REARING AS WELL.[/highlight]