On Abortion

2009-02-16T06:34:00.000-08:00

Abortion is one of the most controversial issues and is generating heated debate in societies around the world today. Restrictive abortion policy in India, introduced through Section 312 to 316 of the Indian Penal Code (Criminalizing abortion when not conducted for the purpose of saving the life of the woman), reinforced the shackles society bound women by. Despite legislation, Medical Termination of Pregnancy Act (MTPA), 1971 regulating abortion, these ghosts from the past still haunt women, denying them the right to regulate their reproductive behaviour, choice, and the cherished principle of equality before the law as was witnessed by the nation in Dr. Nikhil D. Dattar, Gynaecologist v. Union of India1, a Supreme Court case.

Implications of the MTPA

The MTPA that changed the position of Law on abortion, aimed at allowing abortion on health, humanitarian and eugenic grounds. Under the Act, abortion is legal under the following situations:

1. During the first trimester

i. If the woman is an adult
ii. If the woman is less than 18 yrs of age, with the consent of the guardian
iii. If the woman is a lunatic, with the consent of the guardian

2. During the second trimester (12th - 20th week) – With the sanction of two Medical Practitioners

i. If there is substantial risk that the child born will suffer sever physical and mental abnormality.
ii If there is risk to life of the pregnant woman, or grave risk to her mental and physical health.- abortion of pregnancies caused by rape of a woman, and failure of contraceptive used by a married woman or her husband are also legalized under this section. (Section 3 Explanation 2)

3. At any point of time if the medical practitioner believes that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

Thus, Situations that remain punishable under the Indian Penal Code

1. Abortion in the second trimester when not caused by rape, or failure of contraception used with a husband.
2. Abortion for unmarried woman, less than 18 years of age, without guardian's consent.
3. Abortion for married women, less than 18 years of age, without guardian's consent.
4. Abortion after the second trimester where the health of the child is severely affected

Hence unmarried adult women who are pregnant, do not have a right under the law in case they wish to abort the child after the first twelve weeks. While one may think that the Act allows reasonable options to the woman to abort the child in the first trimester, it excludes the possibility of a change in circumstances for the woman. There are various reasons for which a woman might wish to terminate her pregnancy. Abortion should not be denied on account of being unmarried. Reasons might include among many others, financial stress not previously realized or existing, and loss of a partner to care for the child.

The Act does not recognize the right of women to control their reproductive behaviour because of which this conflict arises. More so it discriminates between married and unmarried women in this context. While a married woman can claim contraceptive failure, an unmarried woman can't in the second trimester.

With respect to minor girls, below the age of 18, though the requirement of consent of guardian is probably based in the idea of parental guidance and the benefit of their support, all of which is good but is in ignorance of adolescent behaviour. This should also be contrasted with the strong campaign against sex education in schools, denying adolescents guidance in these matters. Most young girls would happily go to quacks or worse commit suicide (which is almost the same thing). Women of all ages hence ought to have the right to determine their life and reproductive choice. Which the MTPA does not secure.

Also, girls forced in to child marriage might as well be forced into child bearing under the Act. The Act does not create a special exception for them or provide any means of protecting their interests. While child marriage is prohibited, such a married is not invalid. A girl so married may be left at the mercy of her in laws or husband, and a consent to abortion would not be easy in the coming.

Apart from this the health ground was raised in Dr. Nikhil D. Dattar, Gynaecologist v. Union of India. where the Court denied the existence of a right to abort the foetus that was in its third trimester, to a mother who only then became aware of the sever complications affecting the health of the unborn child. The health considerations do not become non-existing after the 20th week. Though mostly by then the complications involved are known. However in case they were not possible to detect before the 20th week. A mother should not be forced to bear a unhealthy child which she can not afford to take care of and would only cause her mental agony.

Forcing decisions upon families and women, which are not the most efficient ones, is not the purpose of Law. Where the stakes are so high, interests of individuals should be valued by the system. I therefore firmly believe that the law is in desperate need for change.

1 MANU/MH/0937/2008

An Introduction

2009-02-15T23:45:00.000-08:00

While it is the view of most people that Law subsists in another realm disassociated with the real world, it is our view that Law is all pervasive (unfortunately), and intersects with all aspects of our lives. It is this regulation of our social being that Society and Law intends to expose, with the hope that it can mold an argument against status quo. This attempt becomes all the more important in times such as ours where violence and oppression continues unchecked by agencies of the State, while more fortunate citizens refuse to take their share of the burden to initiate change.

By way of this forum we wish to increase the awareness of laws amongst the large segment of non-legal Indians. While we consider it contradictory to impose restrictions upon the variety of issues we can discuss here, we think a starting point could be laws governing our behavior in society and laws conferring and protecting rights. Areas of conflict include abortion, understanding of rape and adultery, and homosexuality.

The gamut of issues pertaining to Law and our society that can be raised remains unrestricted. And We sincerely hope that our posts will have the impact we desire and once again lubricate our countries rusted machinery.