Right To Abortion Of The Mother-V- Right To Life Of The Unborn

From centuries together women have been fighting for their Reproductive Rights. Reproductive rights are the rights of individuals to decide whether to reproduce or not.This may include an individual’s right to plan a family, terminate a pregnancy, use contraceptives and gain access to reproductive health services. But the question that arises here is, do women have control over their Reproductive Rights? Do women have the freedom to choose whether, when and how many children to have? Do women have the right to safe abortion? A big ‘NO’ to many such questions. This led to the emergence of the women’s health movement in different parts of the world in the early 1970s. Before going to the history and the laws made for the protection of women and unborn child we will look into the definition of Abortion and the Kinds of Abortion.

ABORTION: It is the removal or explosion of an embryo or foetus from the uterus, resulting in, or caused by its death. In medical terminology, abortion means untimely delivery of a child before it is viable (i.e., capable of being reared if born at the time of the act of abortion). A child is considered viable from the twenty-eighth week of pregnancy.

CLASSIFICATION: It may be classified into i) Natural ii) Accidental iii) Spontaneous iv) Artificial or Induced

Natural Abortion: It may occur due to bad health, defect in generative organs of the mother, shocks, fear etc.
Accidental Abortion: It takes place because of Pathological reasons where pregnancy is not completed and the uterus empties before the maturity of the foetus
Spontaneous Abortion: Genetic abnormalities within the embryo i.e., Chromosomal abnormalities are the most common cause of this type of abortions.
These three types of abortions are not Punishable but the last type of Abortion i.e., Induced Abortion is denied in law as it is caused intentionally by the administration of drugs or by mechanical means. It is punishable under Sections 312- 316 of the Indian Penal Code

RIGHT TO ABORTION: In India there are some rights that should be available to every individual without any discrimination. One among them is Human Rights and the most important right of human is the ‘Right to Life’. No person shall be deprived of his life. But there are some disputable issues related to this fundamental right. One such right is the Right to Abortion. Earlier abortion was considered illegal in India. It is termed as the murder of a foetus. But with the change in society and technology, people’s thinking became more liberal and the right has been legally sanctioned by most of the nations after the famous decision of Roe v. Wade

ROE V. WADE[1] – It was a landmark decision of the U.S Supreme Court in which the court ruled that the Constitution of the U.S protects a pregnant women’s liberty to choose to have an abortion without excessive government restrictions.

MEDICAL TERMINATION OF PREGNANCY ACT, 1971

Before 1971 abortion was criminalized under section 312 of the Indian Penal Code, 1860 describing it as intentionally “causing miscarriage”. During the last 30 years, many countries have liberalized their abortion laws. The worldwide process of liberalization continued after 1980. In India, the Shantilal Shah Committee[2] recommended legalizing abortion in its report to prevent wastage of women’s health and lives on both compassionate and medical grounds. According to the report, in a population of 500 million, the number of abortions per year was 6.5 million where 2.6 million are natural and 2.9 million are induced. In 1969 Medical Termination of Pregnancy bill was introduced in Rajya Sabha and Lok Sabha and passed by the Indian Parliament in August 1971. This act made abortion legal in India. According to Section 3(2) of the Medical Termination of Pregnancy Act (MTP Act), a pregnancy may be terminated by a registered medical practitioner where the length of pregnancy does not exceed 12 weeks or where the length of pregnancy exceeds 12 weeks but does not exceed 20 weeks. In this case, the abortion will take place if not fewer than 2 registered medical Practitioners are of opinion that the continuance of the pregnancy would involve a risk to the life of a pregnant woman or there is a substantive risk that if a child were born, it would suffer from some physical or mental abnormalities to be seriously handicapped. But the main criticism of the MTP Act, 1971 was that it failed to keep pace with advances in medical technology that allow for the removal of a foetus at a relatively advanced stage of pregnancy.

MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) BILL, 2020:

Recently the Union Cabinet has approved the Medical Termination of Pregnancy (Amendment) Bill, 2020. This bill seeks to extend the term of the pregnancy period from 20 weeks to 24 weeks, making it easier for women to safely and legally terminate an unwanted pregnancy.

What is the NEED for this amendment?

The woman who wants to terminate the Pregnancy beyond 20 weeks have to face difficulties, because of these women are visiting unsafe abortion services sometimes even leading to the death of the mother. When a woman is legally not allowed to terminate a pregnancy after 20 weeks, she is forced to go to illegal providers who may be untrained or may perform the procedure under unhygienic conditions. Obstetricians argue that this denies the reproductive rights of women. A 2015 study in the India Journal of Medical Ethics noted that 10-13% of maternal deaths in India are due to unsafe abortions.

FEATURES OF 2020 BILL:

This bill proposes the limit of termination of Pregnancy from 20 weeks to 24 weeks
It proposes the requirement of one registered medical practitioner (instead of 2 or more) for termination of pregnancy up to 20 weeks of gestation (foetal development period from the time of conception until birth)
It introduces the requirement of the opinion of 2 registered medical practitioner for termination of Pregnancy of 20-24 weeks
It also enhanced the gestation limit for special categories of women which includes survivors of Rape, victims of incest and other vulnerable women like differently baled women and minors
It also states that the name and other particulars of a woman whose pregnancy has been terminated shall not be revealed (except to the person authorized in any law that is currently in force)
It will hold the rape victim, ill and under-age women to terminate the unwanted pregnancy lawfully
This bill also applies to unmarried women and therefore relaxed one of the aggressive clauses of 1971 act i.e., single women couldn’t cite contraceptive failure as a reason for seeking an abortion

Allowing unmarried women to medically terminate pregnancies and a provision to protect the privacy of the person seeking an abortion will bestow reproductive rights to a woman

RIGHT TO LIFE OF AN UNBORN

Unborn means who is not born. This word is affiliated to a legal maxim en ventre samare which means ‘in mother’s womb’. The question is whether an unborn can be considered as a person in the eye of law and can claim the rights as other human beings

Section 2(bc) of the PCPNDT Act (Pre-Conception and Pre-Natal Diagnostic Techniques Act 1994) has defined the term foetus as a human organism during the period of its development beginning on the fifty-seventh day following fertilization or creation (excluding anytime in which its development has been suspended) and ending at the birth. The definition does not include the word person. In the most famous case as mentioned above (Roe v. Wade) the Supreme Court has observed that the foetus is not alive till after the period of quickening.

In De Martell V. Merton and Sutton HA[3], The English Court held that if an injury is done to an unborn child, no legal duty is broken as it is not the subject of legal duty since it does not exist. In law and logic, no harm can be caused to someone before its existence. Thus, we can conclude that priority must be given to the right of the woman, over the rights of her unborn child, on grounds of existence and interests.

The law is protecting the unborn and the reasons behind it can be different. In a country like India, the main reason can be to prevent abortion of sexually determined girl children. Despite all reasons it can be assumed that they are getting protection because there is a potential life present in the mother’s womb.

WHEN DOES LIFE BEGIN:

There are different views on this key question. One view states that life begins at the moment of conception. Here are 5 vital signs of life in the womb to consider

HEARTBEAT: Modern technology can detect the baby’s heart 18 days after conception
BRAINWAVES: By 6 weeks 2 days from conception, signals from the brain can be detected
INDEPENDENT MOVEMENT: although a pregnant woman does not feel movement for at least 8-10 weeks the embryo begins to spontaneously move between 5-6 weeks
SENSES: By 8 weeks and 2 days, touching the embryo will elicit squinting, jaw movement, grasping motions, and toe pointing.
BREATHING: The diaphragm muscle is completely formed by 8 weeks and intermittent breathing motions begin

Even the unborn child is entitled to protection by the law from the moment of its conception this is logically perfect but pragmatically impracticable.

Another view states that human life begins at birth. This is the other extreme stand. This creates the dilemma of a different type. One may then argue that if there was no life before birth, then all sorts of legal restrictions and sanctions dealing with the inference of the foetus become unnecessary except to the limited extent of preventing such interference in the interest of the mother’s health. Each of these two views standing at the extremes created a dilemma for lawmakers.

DIFFERENT RIGHTS OF AN UNBORN CHILD IN INDIA:

The right of an unborn infant is subject to a lot of debates and it is debated whether an unborn child should get the same right a person should get. In India, despite there not being any legislation or statute that specifically defines the rights and the position of an unborn child under the law, several statutes recognize and mention the unborn and defined it to be a legal person by fiction, but they too mention that an unborn acquires rights only after being born. Here are few rights which an unborn child gets –

INDIAN PENAL CODE: According to Section 312 of the Indian Penal Code, whoever voluntarily causes a woman with a child to miscarry, shall if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman is quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

The Indian Penal Code in its Section 312 to 316 has implied that anyone who will prevent a child from being born alive or for causing the death of a quick unborn child will be punished depending on the case type, here the unborn child has been given utmost importance.

THE HINDU SUCCESSION ACT, 1956: Section 20 – Right of Child in the womb: A child who has was in the womb at the time of the death of the intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.

THE TRANSFER OF PROPERTY ACT, 1882: Section 13 – Transfer for benefit of unborn person – Where on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect unless it extends to the whole of the remaining interest of the transferor in the property. An individual still yet to born doesn’t have any presence and isn’t considered a living individual but still, the property can be transferred to the baby.

THE CODE OF CRIMINAL PROCEDURE, 1973: Section 416 – Postponement of Capital Sentence of Pregnant woman: If a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed, and May if it thinks fit, commute the sentence to imprisonment for life.

These are some of the rights for an unborn child

RIGHTS OF AN UNBORN CHILD IN USA

In the United States of America, under The Unborn Victims of Violence Act, 2004 unborn ones are protected from any harm and injury. Where the fundamental rights granted to the citizens to exist, to protect and to live with dignity there are also laws for an unborn to prevent illegal terminations and harms and to make sure that a person can be held liable for causing harm to an unborn

MAJOR DIFFERENCES BETWEEN INDIA AND US LAWS:

US laws have been trying to balance the rights between the mother and the unborn by providing protection to the unborn against injury and harm and make sure that the right to life, liberty, and privacy of the mother is upheld. The law under the common law of India is quite a far distance away from those objectives
The US acts clearly stated that any person causing any injury or death is liable to be punished irrespective of the fact whether he/she knew that their actions might cause such injury to an unborn. On the other side, under the common law of India protection of unborn victims is considered of prime importance but there is no statute or legislation that specifically defines the kind of offences the unborn are protected against and the respites available to them. The law of India still heavily lies on precedent and leave it to the court’s discretion of any harm/injury caused to an unborn or the rights available to them.
The law in India does not recognize an unborn as a legal personality and hence claims and rights too can be associated with the birth and not before. The laws in the USA on the other hand are evolving enough that as was said by Justice Tom Parker, an unborn child has an inalienable right to life from its earliest stage of development.
Despite having strict laws protecting the unborn the laws in the USA protect the privacy and choice of mothers. The laws keep in account that no person who is authorized by the consent of the mother will be prosecuted for carrying out an abortion; priority also has to be given to the mother and her decision which the state cannot intervene in. On the other hand, the laws in India, despite providing the provisions to carry out abortions restrict the action to just medical needs and do not give space to put in the factor of choice of the mothers

It cannot be said that the laws in the USA are perfect by far, but it also cannot be denied that they don’t provide better protection by law for the mother as well as the unborn.

RECENT JUDGMENTS:

In Mrs X v. Union of India[4], the Supreme Court allowed for the termination of a 22-week-old pregnancy. The court held that “a woman’s right to make reproductive choices is also a dimension of her personal liberty under Article 21 of the Constitution”. Similar judgments were passed in Tapasya Umesha Pisal v. Union of India[5] (24 weeks), Meera Santosh Pal v. Union of India[6] (23 weeks), Mamata Verma v. Union of India[7] (25 weeks). In all these cases pregnancies were beyond 20 weeks and the foetuses had various medical conditions and anomalies, resulting in a high risk to the foetus and the mother.

However, in Savita Sachin Patil v. Union of India[8] the Court rejected termination of a 27- week pregnancy. The Medical Board gave a finding that there was no physical risk to the mother but the foetus had severe physical anomalies. The court then did not permit termination on the ground, based on the Medical Board Report.

Dr. Nisha Malviya and Anr. v. State of M.P [9] – In this case, it happened that the accused had committed rape on a minor girl about 12 years and made her pregnant. The allegations are that two other co-accused took this girl, and they terminated her pregnancy. So, the charge on them is firstly causing miscarriage without the consent of the girl. The court held that all the three accused guilty of termination of pregnancy which was not consented to by the mother or the girl.

CONSENT:

Section 4 of the MTP Act states that: No pregnancy of a woman, who has not attained the age of eighteen years, or who have attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.

In Anil Kumar Malhotra v. Ajay Pasricha[10], the Supreme Court held that under Section 3(4) of the MTP Act, only the consent of the pregnant woman undergoing the termination of pregnancy is required. It is the free will of the wife to give birth to a child or not. It said that the woman has the right to decide about the abortion and that consent of the husband is not required as per the act.

RIGHT OF ABORTION OF MOTHER V. RIGHT TO LIFE OF THE UNBORN

Section 312 of IPC punishes the person who carries miscarriage. It clearly says that women have no right to miscarry themselves. This section provides ample protection to a woman but at the same time takes away the right of abortion to a woman it means she has no right over her body.

There is a clash between the right to life of an unborn child and the right of women over her body i.e., the right of abortion. The question arises about the right of an unborn child when the life of the woman is in peril due to pregnancy. Law can be cruel a little bit but not absolutely; the section allows abortion in good faith to save the life of the woman. This right is also extended by the Medical Termination of Pregnancy Act.

The Supreme Court in the landmark case of Suchitra Srivastava[11] held that Article 21 of the Indian Constitution which guarantees the right to life and personal liberty has a broader dimension that extends to the liberty of a woman to reproductive choices. These rights are the components of a woman’s right to Privacy, Personal liberty, Dignity and Bodily integrity as enshrined by Article 21.

In a recent judgment of the Supreme Court by a nine-judge bench in Justice K.S.Puttaswamy case[12], which unanimously affirmed the right to privacy as a fundamental right under the Constitution, reiterated Suchita Srivastava’s Case and held that the woman’s right to abortion falls within the purview of the right to privacy and hence all her reproductive rights should be ensured by the state. Thus, it has been established by the courts that the woman s right to abortion is a fundamental right.

CONCLUSION:

As said by great Tamil Saint Thiruvalluvar:

The touch of children is the delight of the body; the delight of the ear is the hearing of their speech. A mother has an innate duty to provide the maximum benefit to her offspring. Abortion is an issue that is to be left to the decision of the mother. But there will be no meaning in conferring a right to the mother to destroy the foetus. Her right is limited to have a termination of pregnancy. Necessary protection should be provided to the unborn despite having abortion rights. Law should create a balance between the rights of the mother and the rights of the unborn.

(The author is a 3rd year law student from University college of Law, Osmania University)

[1] Roe V. Wade, 410 U.S.113 (1973)

[2] Shantilal Shah Committee Report, December 30, 1966

[3] Martell V. Merton and Sutton Health Authority (1992) 2 FCR 832

[4] 2016 (14) SCC 382

[5] (2018) 12 SCC 57

[6] 2017 SCC OnLine SC 39

[7] W.P.(C) 627 of 2017, S.C.C., 9 Aug. 2017

[8] W.P.(C) No.121/2017

[9] 2000 CriLJ 671

[10] C.R. 6337/2011

[11] Suchitra Srivastava & Another V. Chandigarh Administration (2009)11 S.C.C. 409