LEGALISING ABORTION

IN INDIA

SYNOPSIS: MEANING OF ABORTION-GROUNDS OF ABORTION UNDER

THE ACT- ARGUMENTS AGAINST ABORTION-WHY IT IS STILL A TABOO-

ARGUMENTS IN FAVOUR OF ABORTION- DRAWBACKS OF THE ACT-THE

RELAXED APPROACH BEING DETRIMENTAL-WHY IT IS NOT CONDUCIVE FOR

INDIAN SOCIETY-PARENT’S RIGHT-WHY CAN’T THEY DECIDE WHETHER TO

HAVE CHILD OR NOT- ILEEGAL ABORTIONS- THE HARSH FACT CAUSING

INNUMERABLE DEATHS- MENTALLY ILL VICTIMS-NOT PROPERLY COVERED

UNDER THE ACT-IMPROVEMENTS REQUIRED- ABORTION AND EUTHANASIA-

THE DEBATE IS NEEDLESS-CONCLUSIONS.

WORD COUNT- 2841

ABORTION - AN INTRODUCTION

Abortion means the annihilation of pregnancy by any technique either spontaneous or

induced before the mother’s foetus is adequately developed to survive autonomously. As a

rule, the foetus should be less than 20 weeks old from the time of pregnancy for abortion to

take place.

GROUNDS FOR ABORTION

The Medical Termination of Pregnancy (MTP) Act of India clearly mentions the conditions

under which only a pregnancy can be ended or the foetus aborted, the persons who are

qualified to conduct the abortion and the place of implementation. The grounds, thus, for

conducting an abortion as interpreted from the Indian MTP Act are:

1. 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 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 to her 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

However, when the pregnancy exceeds 12 weeks but is below 20 weeks, the consultation of

two registered medical practitioners is required.

2. A pregnancy occurring as a result of rape

3. Failure of contraceptive device used by a couple.

ARGUMENTS AGAINST ABORTION

Following are the arguments which favour prohibition of abortion by the pro-life activists:

1. the issue of the foetus' life, which raises the question of whether one person's desire for

autonomy can extend to ending another's existence.

2. The killing of innocent is a crime and the foetus is also an innocent life.

3. Many women suffer significant emotional trauma after having an abortion.

4. There is also some evidence that having an abortion may increase a woman's risk of breast

cancer in later life. Some other complications include damage and/or infection to the uterus

and the Fallopian tubes making a woman infertile. Menstrual disturbances can also occur.

5. Aborting foetuses because they may be disabled sends an implicit message of rejection to

people with disabilities.

6. Another argument is that an embryo (or, in later stages of development, a foetus) is a

human being, entitled to protection, from the moment of conception and therefore has a right

to life that must be respected. According to this argument, abortion is homicide.

AR GUMENTS I N F AVOU R OF ABO RTION

Following are the arguments in favour of legalizing abortion:

1.The first argument is of Bodily Sovereignty. Each woman has the sole right to make

decisions about what happens to her body - no one should force her either to carry or
terminate a pregnancy against her will.· Most abortions are carried out on the grounds of

safeguarding the woman's mental health.

2.Other are situations where abortions is done to safeguard the life of a foetus, as it would

involve risk if pregnancy is carried, it might damage the foetus resulting in danger to the life

of the mother.

3. If abortion is banned, or just more restricted, we would return to the days of 'back-street

abortions'. In the past this has been accompanied by wild claims of the risk to women's health

from these procedures. The women resort to some unhygienic measures to abort the foetus.

4.Act of performing an abortion to save the mother's life when occurs, however, the rationale

is not that the foetus is seen to have less value than the mother, but that if no action is taken

both will die. Aborting the foetus at least saves the mother's life.

5. If suppose abortion is banned, a woman does not want to carry her pregnancy, she would

carry it and then abandon the new born child. This would be more dangerous to the life of the

baby. Thus, it is better to terminate the pregnancy at an earlier stage.

DRAWBACKS OF THE ACT

1. Nowhere has the Act defined what would involve a risk or a grave injury to her mental

health. The term grave injury or substantial risk remains undefined. The gravity of the injury

or the extent of the risk present being left to the interpretation by the medical practitioner

create an apprehension.
The continuance of the pregnancy would involve a risk to the life of the pregnant women

depends on the will of the family of women rather the doctor or the lady. The families in

India don’t bother about the risk to the life of the mother. The number of deaths while

carrying out abortions illegally in India proves the situation beyond doubt.

The social mindset of the people still fears a pregnancy of an unmarried daughter and the

stigma associated with it and would take every type of risk to conceal the fact from the

society.

If the consent of women was of such relevance then the male - female ratio would not have

been so low in the states like Punjab, Rajasthan, Haryana, etc.

2. If the pregnancy is caused by rape there exists a substantial risk that, if the child were

born, it would suffer from some physical or mental abnormalities so as to be seriously

handicapped if he comes to know about the type of situation his existence has come from.

3. The Act says that mental anguish due to pregnancy from contraceptive failure in a married

woman is an indication. Can an unmarried woman avail of this clause? She cannot use this,

but she can get abortion under the general clause of mental indication. Does it mean that only

married woman getting pregnant can ask for abortion? Why can’t the unmarried women do

so?

This is a hard core reality that now a days more women are indulging in pre marital sex and

failure of contraceptives is a possibility. Why those women are being deprived of the liberty

only on the basis of being single? It’s a point to be pondered upon!

4. As provided in Act, no pregnancy shall be terminated except with the consent of the

pregnant woman. It is important to note, in this section, that the consent of the woman is the
essential factor for termination of her pregnancy. The husband's consent is irrelevant.

Therefore, if the woman wants an abortion but her husband's objects to it, the abortion can

still be done. However, if the woman does not wants an abortion but her husband wants, it

cannot be done. However, the consent of the guardians is needed in the case of minors or

lunatics. But in practicality this is an absurd clause.

5. Another feature of this clause is that though the husband’s consent has been ignored then

why does court pronounce it as a case of mental cruelty and entitle the husband to a divorce.

This is in a way applying double standards on the basis of sex in the society.

PARENT’S RIGHT?

Focussing on the Niketa Mehta case, why can’t the parents decide whether to have a child or

not? And what about the parents that come to know that there are some deformities in the

child and he will need regular medication to survive on this hostile planet?

Leave aside the deformities, if the child that has come into existence and the parents know

that they will not be able to bring up the child with the best of facilities, why thrust these

parents with the extra burden specially when the Indian welfare state itself is not able to fulfil

all its duties that are of a welfare state. A recent survey that says that 38% of Indian

population still lives under the poverty line, then why are we being stringent about the

abortion laws that can help reduce population below the poverty line and also save many

lives? Why can’t we make parents wholly responsible entities and the decision makers for the

child? Talking about the misuse of the law that actually leads to female foeticide, the parents

should be made equally liable with the doctor for the crime they commit.
ILLEGAL ABORTIONS – A HARSH CONSEQUENCE

"Every year 6.7 million abortions take place in India but the sad part is that 5.7 millions are

illegal. The place and technique used in most of the illegal cases are unsafe and unhygienic,"

said Sudha Tewari, president of Parivar Seva Sanstha, an NGO working closely with the

Ministry of Health and Family Welfare.

These types of abortions are actually not uncommon in India as there are many methods to

carry out this unscrupulous activity. People go to all sorts of midwives, babas to have the

child aborted. These places by no means are equipped and hygienic for the health of the

mother.

Most of people still don’t know that the abortion is very safe if carried out by a professional.

To my surprise, how can the legislators be so sure that after the prescribed time of 20 months

the-would- be mother will actually not go in for abortion?

It came to light that Niketa Mehta had a miscarriage due to the hype around her case but who

is so sure to say that? Nobody can claim what lead to the death of the child as there are more

than one method to carry out the step. Like them, other people also don’t hesitate to abort the

unwanted child through any way they can to have a peace of mind.

MENTALLY ILL VICTIMS – THE SUFFERERS?

A disabled child is still at the receiving end in our Indian society. The clause related

to the mentally ill child is a question of worry as the laws are ambiguous in nature.

The Nari Niketan case is a testimony to this. The Punjab and Haryana High court

actually ordered the abortion of a mentally ill child that was raped, but
Supreme Court reversed the order.

The constitution of committees, the reports from the doctors and other formalities that

were required took much time and the limit of 20 weeks for abortion to be carried out

passed. The court ordered to let the child make its way into the world.

Was this to let the women have her child and decide how she is going to rear him?

up or was this an order passed to hide the laxities in the act that made the requirements

under the sections to be too time consuming and led to court pass such an order.

Even if it was not so, the honourable court left few question unanswered.

1. When no one came out in support of this victim, who was the guardian that was asked

what was needed to be done? The guardian for the mentally ill person was the

Nari Niketan employees only, who were also the accused.

2. What kind of consent was taken into consideration when the girl 19 years old but with a

brain of 9 years was pregnant and when she doesn’t even know what being pregnant mean!

3. Did the court take into consideration the kind of mental trauma that the girl will undergo

while delivering the child?

4. Who shall take care of the expenses when the child comes into existence and also when it

grows up? If we look at the function of our country as a welfare state, it has failed miserably

and to expect any kind of help by the women should be passed off as an illusion of her mind.
IMPROVEMENTS REQUIRED

Clearly, the situation surrounding abortion requires considerable attention in order to

transform the theoretical right to a safe abortion into a service that is truly available and safe.

Following steps can be taken:

• The Medical Termination of Pregnancy (MTP) Act should have provisions to take a

second look at cases that are outside the legal limits under the special circumstances.

• More power should be given to the Family courts or the Fast Track courts to provide

quick judgements in the MTP Act cases where question of pregnancy and delivery of

child comes up.

• Nowhere has the MTP Act defined what would involve a risk or a grave injury to her

mental health. The term grave injury or substantial risk remains undefined. The

gravity of the injury or the extent of the risk being left to the interpretation of the

clause by the medical practitioner is rather questionable. The courts have to be more

precise in helping the common man and the practitioner interpret the clauses of the

act.

• Most of the women including one from the poor families are not interested in getting

abortion done from the Government hospitals due to poor facilities, unhygienic

conditions and the long queues that add to their problems. Special doctors should be

appointed and time should be allotted to them for their shifts so that it cause least

inconvenience to the patients

• A special provision dealing with the people, who actually help women get abortion

illegally, should be brought so that the practice can be curbed.

• Raise public awareness of women’s rights under the Act, including a major outreach

effort to inform people where services are available and about which procedures are

safer than others. Public service announcements on TV and radio, and information

posted on bus stands or on billboards (targeted to both men and women) would be a

logical first step.

• Work towards a more efficient distribution of resources in existing medical facilities

to ensure adequate equipment, supplies, and staff.

• Remove or substantially reduce the extraneous paperwork that discourages proper

reporting by medical providers.

• Develop incentives for doctors to get specific professional training in the least

invasive and safest methods of conducting abortions.

• Work towards legal reform to change the clause in the MTP Act that insists that all

legal providers must be registered medical practitioners. This would open up new

possibilities for extensive training of health workers to conduct MVA under

supervision.

• Instead of waiting for sex education to become a part of the school curriculum, the

young girls should be taken to doctors who can help them understand things in a

better way. Parents should also not shy away from the steps that they can take to

ensure the safety of their girl child. Talking about the rural illiterate people, they

should be reached out by the young doctors in the local limits to explain the fine

nuances associated with the pregnancy. Making it a part of their internship

programme will be mutually beneficial thing, to them as well as the nation.

• If at all the legislators make such laws to make the parents give birth to some

mentally ill child, it should also make provisions to help such family financially and

other benefits should also be provided to them as a ritual.

ABORTION AND EUTHANASIA - THE CONNECTION

Some people advocate the notion that the ending of life of a voiceless and helpless child in

the mother’s womb is as good as mercy killing but some think other way round. Few things

are to be understood here.

1. If at all such was the case, why was there need of an act which legalised abortion?

Does the life exist only between a certain time period only viz. twelve to twenty

weeks of pregnancy? It is rather needless to say such futile things.

2. If the medical authorities are sure of the complications in the child after the birth, why

we have to make life of these parents tough forcing them to live with the pain and

agony that they will undergo daily and might not be able give love affection that is

bestowed on their other normal children.

3. Over 55% of Indian population belongs to middle class strata which can’t bear the

expenditure of the extra child or a mentally ill child. The option of aborting the child

relieves them of this pressure. What is the need of mixing two different concepts that

have different purposes?

CONCLUSION

Though the abortion in India is legalised, yet the number of deaths during child delivery, the

finding of premature foetuses in dustbins, the removal of female foetuses, the declining of

female to male ratio in the Indian states clearly states the miserable failure of the abortions

laws. It is high time for the Indian legislators to make much required amendments arming the

abortions laws according to our society than copying the laws of different nations and trying
to imply it in ours. They are bound to fail here as they are framed taking into consideration

the social aspects of their society, a total alien to the one we live in.

It is the area where our legal luminaries should bring their great minds together and work out

a piece of legislation that is conducive to the Indian society and specially the women of our

country, a legislation purely indigenous and our own.

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 BIBLIOGRAPHY

1. www.google.com

2. www.wikepedia.com

3. http://lifestyle.iloveindia.com/lounge/abortion-laws-in-india-240.html

4. http://www.indiatogether.org/manushi/issue126/abortion.htm

5. http://blogs.expressindia.com/showblogdetails.php?contentid=394265

6. http://en.wikipedia.org/wiki/Abortion_in_India

7. www.expresshealthcaremgmt.com/2003

8. www.hsph.Harvard.edu/organizations/healthnet/sAsia/repro/MTP act

9. www.bhj.org/journal/2002

10. www.indiatogether.org/2004/jan/wom-foeticide

11. www.janmanch.org/development-law/developmentlaws.asp

12. www.boloji.com/w/s/wfs 048

13. www.indiatogether.org/women/violence/infanticide