Abortion: A Paradigm Shift from A Prejudiced Curse to A Legal Right

By Nandini Rao Budhagavi

A girl, a sister, a daughter, a wife and a mother. A woman is an embodiment of the metaphorical emotions that we appreciate. Women embraces the world by lapels. She values her existence, trusts in her intuition and creates a beautiful place. She understands herself better when she reaches her actualizing period. Be it her career, her marriage, her dance, her job, or her motherhood. She is a self-made woman, taking everything in a very pure and positive stride. She faces dominance in her society and sometimes lets others dictate decisions of even the matters very personal to her. She witnesses silently. She observes the turn of things, how a society reaches judgement, how it imposes on its subjects. Judgements sometimes prejudiced by decades old testament, unfair to her but being imposed fairly to everyone.

Abortion, a deliberate termination of a human pregnancy. A much-loathed practice earlier and is still at least not in the constitution but in the society’s mindset, which is even more painful and hurtful. Woman embraces being every aspect of being a mother, and for her to take such a tough call is incomparable. In the words of Frederica Matthewes-Green, “No one wants abortion as she wants an ice-cream cone or a Porsche. She wants an abortion as an animal, caught in a trap, wants to gnaw off its own leg.” Losing a part of a body or probably deliberately losing it, that part that a girl once in a lifetime longs for, is not easy. We all know how mothers shield their children, turning every corner of a stone, for protecting her child which can also mean losing that child. Protecting that child from coming into the world where her mother knows that is extremely unsafe for that child. If a woman is ready to take even such extreme step to protect her child, as to losing it, we should respect that decision.

Earlier, women did not have access to the means of aborting a child. Or else many did not have an awareness to it. Therefore, people used to adopt other ways of performing abortion, which was not backed up by any legitimate authority and as a result it would turn out to be bad. Due to these illicit means the women’s health was at stake. Due to lack of awareness coupled with the inferiority feeling in the society because of the society’s views regarding this subject matter, it would turn out to be a grave misfortune to the family. In the light of such events, there was a spurt in the maternal mortality rate. By taking a due note of the situation, the government in 1966, set up ‘Shantilal Shah Committee’ to look into the situation and recommend ways and means to curb this situation. This committee stated that abortion and reproductive rights of a person needs to be governed by law. This committee legalized abortion in India.

On account of which the Medical Termination of Pregnancy Act,1971 came into being.  The conditions under which the pregnancy can be terminated are listed below.

When Pregnancies may be terminated by registered medical practitioners. –

  • Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,- (a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or (b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are. Of opinion, formed in good faith, that,- (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health ; or (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

  • Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
  • Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

(3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian. (b) Save as otherwise provided in C1.(a), no pregnancy shall be terminated except with the consent of the pregnant woman.[1]

The first major amendment to the Medical Termination of Pregnancy Act 1971, came in view of Nikita Mehta’s case, seeking to abort her 26-week old foetus. It was observed that the foetus had developed congenital heart defect, though the court did not accept the plea and ultimately Nikita Mehta had miscarriage and lost her foetus. But in view of this case, consequently, after six years, the Union Health Ministry drafted the Medical Termination of Pregnancy Act, Amendment Bill, 2014 that aimed at allowing abortions after 20 weeks under special circumstances. It was also considered that the length of the pregnancy would not be considered in the decision regarding the abortion of foetus diagnosed with “substantial foetal abnormalities as may be prescribed.”

In the case of Vaishali Pramod Sonawane v. Union of India, the Bombay High Court allowed a petition involving termination of pregnancy, where the petitioner was 24-weeks pregnant. Such a petition was allowed due the realisation of foetal anomalies. It was reported that the continuation of pregnancy would involve substantial risk to the unborn child. The foetus was told to be born with being seriously handicapped. The court concluded that  “Although, sub-section (2) of Section 3 of the Medical Termination of Pregnancy Act, 1971 put a cap of 20 weeks for permitting the pregnant woman  to terminate the pregnancy, on consideration of Section 5, it would be logical to conclude that the contingencies referred in clauses (i) & (ii) of sub-section 2(b) of Section 3 will have to be read in Section 5 of the Act and as such in an exceptional case, the request of a pregnant woman seeking permission to terminate the pregnancy beyond 20 weeks can be considered.”[2]

The MTP Act of 1971 also makes a distinction between mental illness and mental retardation. It is stated that in case of mental illness, the guardian’s consent is necessary for termination of pregnancy. But in case of mental retardation, the woman herself can give her own consent or is capable of doing so. Therefore, in the case of Suchitra Srivastava v. Chandigarh administration[3], a woman of Chandigarh Nari Niketan had become pregnant due to rape. Here though the Chandigarh administration approached court for termination of pregnancy, the court taking into account the woman’s condition where she was mentally retarded and an orphan, and it was confirmed that she was in a position to continue the pregnancy and she had not given her consent for termination. Therefore, keeping in view the state’s compelling interest in protecting life of the prospective child, the Supreme Court agreed to carry on pregnancy.

Critically analysing the circumstances under which abortion comes into play, the person is conflicted between two choices, mainly Pro-Choice v. Pro-life. Pro-Choice decision which was an abortion reform movement started in America after Gerri Santoro from Connecticut died trying to obtain illegal abortion, argues that in case of pregnancies owing to the viability conditions at a point where foetus can no longer survive outside the womb, it is considered or believed that abortion as a step is viable. It reinstates the fact that welfare of women is also important where there are unintended pregnancies and the health of the unborn child and mother, both are at stake. Especially when the unborn child carries with itself substantial risk of foetal anomalies. Whereas, Pro-life movement also called as Anti-Abortion, recognises itself with the belief that an undernourished or under-developed foetus is also sacred and are strictly against the idea of abortion or birth control. This argument is fully biased in saving the unborn foetus irrespective of the adverse health that may befall on either the mother or the child once it is born.

Due advancements in the medical technology and growth of medical tourism, there has been rapid increase in the Bio-engineering aspect of the sciences. Due to technological spurt in the medical industry, it is now possible to detect abnormalities beforehand or before the foetus is born. And sometimes such detection may take more than 20-week gestation period. Therefore, it is necessary to take due cognizance of the fact and provide autonomy in the hands of the field experts. If they are bound by governmental authorities then the means of achieving progress would take an even longer time, which would prove detrimental to the victim.

Our Constitution envisages in one of its Fundamental Rights, under Article 21, protection of life and personal liberty and right to privacy which is sourced from Article 21 which states to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. The motherhood that is guaranteed cannot be so narrow as to not encompass a mother’s right to let go of her own body part, in order to protect the child.

To conclude in these words of Faye Wattleton, “Reproductive freedom is critical to a whole range of issues. If we cannot take charge of this most personal aspect of our lives, we cannot take charge of anything. It should not be seen as a privilege or as a benefit, but a fundamental human right.”

[1] https://tcw.nic.in/Acts/MTP-Act-1971.pdf

[2] https://www.scconline.com/blog/post/tag/medical-termination-of-pregnancy-act/

[3] AIR 2010 SC 235

Leave a Reply