Social values v. Social Reality: Divergent perspectives on Termination of Pregnancy

In India, Abortion (voluntarily causing miscarriage) is illegal[1], only medical termination is allowed.[2] Termination of pregnancy can only be undertaken by registered medical practitioners up to 12 weeks and the opinion of more than two medical practitioners is required if termination of pregnancy is done between 12 and 20 weeks. Termination after the 20 week period is prohibited under the Act.[3]

The act has divided the gestation period into parts which have separate rights associated with them. Such bifurcation raises some fundamental questions such as: when does life begin? Should the child be protected from the time of its inception?

The personhood of the unborn has been a contention for both moral and legal discussion for a long time now. The pro-life contenders argue that the right to life of an unborn child is protected under Article 21 of the constitution of India.[4] Whereas the pro-right contenders hold the view that right to have an abortion is recognized under right to privacy which is part of right to personal liberty (which emanates from right to life).[5]

It is also argued that a child’s right to a dignified life which is a part of right to life[6] would be violated if the mother herself, being the host, is unwilling to carry on with the pregnancy (extreme detachment).[7] Though foetus should have a right to life, a meaningful and wholesome life would not be possible if the mother herself has not been able to form any emotional bonding with the foetus /would-be-child.[8]

Women’s rights activists argue that a woman should have reproductive rights and the entire purpose of introducing the MTP Act was to empower them with the same.

The prolife contenders don’t accept this argument stating that abortion is not within the “right of a women over her body” because of the doctrine of Separate Entity. Stressing on the point that the such right is limited as it is encroaching the right to life of another (the foetus).

Considering both the liberal and moral issues, it is pertinent to note that the life of a child is intrinsically connected to that the mother. Consequently, she before anyone else should have the right to make such a decision based on financial, medical and emotional considerations which would affect the future of both.

There also exists a lot of criticism regarding the 20 week period restriction mentioned in the MTP Act. The question of extending the same first came up in Dr. Nikhil D. Datar v. Union of India & Ors[9] and has since been under judicial scrutiny. Doctors argue that the limit is arbitrary and that the same should be extended as a lot of complexities such as cardiac deformities can only be detected after the 20 week period.

Recently a 10 year old gave birth to a child (conceived as a result of rape) because the Supreme Court rejected the plea for abortion by her parents as the 20 week period had elapsed.[10] Should the court follow the black letter of law in all cases? Should a decision that can alter the course of a minor’s life be not taken by her guardians? Such cases are not uncommon and dilemma of choosing between a solution that either suits our morality or reality still persists.

It’s sad that despite the huge numbers in which such cases are brought before the court, the court has not set precedents or guidelines for governing termination post the 20 week period. It is inhuman to expect a woman pregnant for 20 weeks to knock the doors of the court to decide about her fate and is also unreasonable to expect a speedy decision which is of an essence in these cases.

Another ethical dilemma is regarding abortions conducted in “good faith” under Section 2(b)(2) of the Act, which allows medical practitioners to conduct abortions during the 12 to 20 week period if the foetus is suffering from any physical or mental abnormalities. Does the relaxation in the time period provided for in the act point towards the fact that under our constitution, Right to life of a child with physical or mental abnormalities is lesser than that of a Perfect baby?[11]

It has been observed that a hike in the number of such abortion has arguably lead to further devaluation of differently-abled people. It points towards the darkness that seems to have overtaken our society where individual liberty is now been given more importance than social responsibility and where weeding out of potentially “abnormal” babies is being increasingly normalized.

These issues are neither dealt with in our constitution nor in any international treaty, these are issues that have troubled the consciousness of legal theorist and medical practitioners alike for centuries.

But for most cases that reach the courts, decision is taken according to the provisions of an act (MTP) which was intended to be a population lobby law and not a pro rights law.  Law reflects the consciousness of the society and therefore unless changes are brought into the same, the parameters for deciding its threshold would remain low.

[1] Section 312 of The Indian Penal Code,1860:

 Causing miscarriage.—Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be 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 be 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. Explanation.—A woman who causes herself to miscarry, is within the meaning of this section.

[2] Section 3(2)(i) of Medical Termination of Pregnancy Act, 197:

(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.

[3] Section 3(2) of Medical Termination of Pregnancy Act, 1971:

(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.

[4] Article 21 of the Constitution of India, 1950:

Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

[5] Roe v. Wade 410US 113(1973).

[6] AIR 1978 S.C. 597.

[7] Section 3 of Medical Termination of Pregnancy Act, 197:

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.

[8] Sunanda Bharti (2013) Legal Personality of Unborn: a Jurisprudential Analysis. Retrieved form http://shodhganga.inflibnet.ac.in/bitstream/10603/26532/16/16_abstract.pdf.

[9] W.P. (L) 1816/2008.

[10] Agence France-Presse (7th August, 2017) 10-year-old rape victim denied abortion gives birth to baby girl in India

 Retrieved form http://www.telegraph.co.uk/news/2017/08/17/10-year-old-rape-victim-denied-abortion-gives-birth-baby-girl/.

[11] Geeta Seshu (October 1, 2007) Abortion Dilemmas: Perfect Baby, Imperfect Society. Retrieved form http://www.boloji.com/index.cfm?md=Content&sd=Articles&ArticleID=2386.


ABOUT THE AUTHOR

IMG_20170904_125447

TANVI SINGH

Tanvi Singh is a fourth-year Law student pursuing B.Com. LL.B. (Hons.) at Gujarat National Law University. Tanvi believes that deductions and deliberations must be made sincerely based on well-researched information. Her academic interests are in the field of International Trade Law, Law and Economics, Contracts and Arbitration.

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