Author: Riya Khanna
III Year | National Law Institute University, Bhopal

Introduction to Abortion Law in India:

Regardless of improvements in medical technology, abortion remains a taboo issue in India.  If we look at the statistics, 3.6 million out of 6.4 million abortions are unsafe.[1] The objective of the MTP Act, 1971 was to control the high incidence of illicit abortions to decrease the maternal death rate[2]. It also sought to guarantee the State’s obligation to protect the foetus.[3]The death rate in India during an abortion is still extremely high. The Government felt the pressing need to address the same. 

The Lok Sabha passed the Medical Termination of Pregnancy (Amendment) Bill, (‘the Bill’) after much conversation and consultations on March 17, 2020. The bill has by and by quickened the discussion and demand for liberal abortion law in India.

The 2020 amendment concedes a special window to end pregnancy prematurely, even at 24th week to only certain categories of women. Further,  pro-choice advocates demand that liberal law should apply to all the women of the nation. An abortion, however, affects the life of both – the mother and the child. Through this article, the author seeks to analyse the rights and protection deserved by a viable foetus.

A Viable Foetus:

A foetus is said to become viable, i.e., capable of surviving outside the womb of the mother, if it is prematurely born at the end of the 20th week. Though the odds of the survival of a baby are a lot higher whenever born between the 24th and 28th week, nevertheless its survival in the 20th week is also possible.[4] 

Article 1 of the American Declaration of Rights and Duties of Man, and Inter American Commission of Human Rights permit abortion till the end of the first trimester i.e. 12 weeks. According to Article 6(1) of the International Covenant on Civil and Political Rights,[5] the right to life is shielded from the moment of conception. Ergo, the viability of the foetus structures a fundamental thought as regards the interest of the State in ensuring the protection of the potential life.[6]

A Foetus has Right to Life:

In a benchmark judgement, the Supreme Court of India said, “A woman’s freedom of choice whether to bear a child or abort her pregnancy is area which falls in the realm of privacy”.[7]

Legal fiction identifies a child in its mother’s womb as already born.[8] The right to life is inalienable. Verifiably, all conventions perceive the privileges of the unborn child. Article 1 of the UN Convention on the Rights of the Child 1989,[9] identifies anyone below the age of 18 years as a child.

As there is no mention in the constitutional text about the unborn to be or not to be considered as a person, the statement will be based on historical understanding and practice of the constitution.

Historical Understanding of Abortion Law in India

The rights of a child in mother’s womb in the family property legacy are all around perceived under Hindu Succession Act.[10] A child in the womb of the mother is for most purposes respected in English law, a being already born. Considerably under the Code of Ethics of the Medical Council of India, it is expressed that extreme regard will be given to human life from the time of conception.[11]

It has likewise been upheld in other Common Law Jurisprudence that “the fact that an unborn child is physically dependent on its mother before birth need not prompt the suspicion that it has no applicable separate presence nor to the presumption that it has no legitimate or moral significance.”[12]

Subsequently, the state is under an obligation under Article 21 to secure the life of the unborn child from arbitrary and unjust destruction.

State’s Interest:

In the present discussion, there are competing interests between the right to life of a foetus and the right to privacy of a woman.  Therefore, in competing rights between the public interest and the individual interest, the public interest would override.[13] There is a discerning association between a state’s inclinations in protecting women’s health and potential human life and regulating women from deciding on abortions all alone.

Abortion in India is legal since 1971 by virtue of the MTP Act. The SC has established that the termination of a pregnancy is possibly allowed when the conditions indicated in the MTP Act have been satisfied.[14] Subsequently, the provisions of the MTP Act can likewise be viewed as reasonable limitations[15] that have been placed on the exercise of the reproductive choices.

Any subjective permission to terminate a pregnancy will abuse the rights of the foetus. The thing to be noted here is even in the country like India, the option of choice is totally omitted from the act. There is no mention of the concept of choice. Hence, statutarily, women do not hold something which can be called “right to choose abortion”.

Conclusion:

There is no uncertainty that a woman’s entitlement to make reproductive choices is likewise a component of ‘personal liberty’[16] as comprehended under Article 21 of the Constitution of India. Taken to its logical conclusion, reproductive rights incorporate a woman’s entitlement to carry a pregnancy to its full term, to give birth, and to along these lines raise children. The State has a compelling interest after the stage of viability which starts after twentieth week to safeguard the life for the societal benefit. It is further augmented by the fact that abortion after such stage is deadly to the life of the woman. 

The foetus after the stage of viability is certifiably not a prenatal life. However, it is a potential life that could be advantageous to the society. The foetus also isn’t imperatively dependent on its mother’s body and has a reasonable potential of survival upon delivery with appropriate aids at the premature stage.[17] As the foetus grows, it becomes capable of independent survival. Further, from seven months of gestation onwards, the chances of its survival upon birth become bright.[18] 

The object of the Act is to save the life of the pregnant woman or assuage her of any injury to her physical and mental wellness. Apparently, the MTP 1971 Act aligns with Article 21[19] of the Constitution of India than in strife with it. Its object, other than the elimination of high incidence of illegal abortion, is to present on women the right of privacy.

The limitations posed by MTP are reasonable as it looks into the legal abortion from all perspective. In addition to this, provisions of the MTP Act aren’t rigid as section 5 of the Act permits abortion done in good faith to Save the Life of the mother in extraordinary circumstances.

Hence, further liberalizing the abortion law in India would render the object of the Act otiose. Further, it would even be life-threatening for the expecting mothers to go for abortion after the 20th week. Ergo, the pro-choice advocates must conform to the provisions already laid down by the MTP Act,1971, and must glance at the harmful effects of demanding the additional time window to terminate the pregnancy.

[1]https://timesofindia.indiatimes.com/life-style/health-fitness/health-news/women-know-these-5-facts-about-abortion-in-india-and-whats-wrong-with-the-act/articleshow/64121702.cms#:~:text=The%20Medical%20Termination%20of%20Pregnancy,to%2020%20weeks%20of%20conception.&text=It%20is%20solely%20at%20the,or%20may%20not%20undergo%20abortion.

[2]K .D.Gaur, Abortion and the Law in India, 15 ILI 132 (1992).

[3]Roe vs Wade 410 US 113 (1973).

[4]Stephen M. Krason, Abortion: Politics, Morality, and the Constitution: A Critical Study of Roe v. Wade and Doe v. Bolton and a Basis for Change (2nd ed. 1984).

[5]Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

[6]Supra note 3.

[7]http://www.abortionindia.com/abortion-in-india

[8]“Nasciturus pro iamnatohabetur, quotiens de commodes eiusagitur” i.e. “the unborn is deemed to have been born to the extent that his own benefits are concerned.”

[9]Article 1, UN Convention on the Rights of the Child 1989.

[12]Queen Empress v. Ademmia, 1886 ILR 9 MAD 360.

[13]Basu, D. Lakshmanan, A., Manohar, v., Banerjee, B. and Khan, S., Shorter Constitution of India, Gurgaon (LexisNexis Butterworths Wadhwa Nagpur 2009).

[14] Suchita Srivastava and Ors. v. Chandigarh Administration AIR 2010 SC 235.

[15]Neelam Choudhary v. Union of India And Ors., 1BomCR 2019681.

[16]Supra note 15.

[17]Prashanth S.J., “Right to Life of Foetus”, 1 CLJ 209 (2005).

[18]Dagmar K. Kalousek and Naomi Fitch, Pathology of the Human Embryo and Previable Fetus, (Springer 1990)

[19]Nand Kishore Sharma and Ors. v. Union Of India (UOI) And Anr, AIR 2006 Raj 166.

Editor: Harsh Upadhyay
Content Manager | Leagle Samiksha