RIGHT TO DECIDE OF WOMEN V. RIGHT TO LIFE OF FETUS: ANALYZING THE CONCEPT UNDER INDIAN JURISPRUDENCE
Updated: Dec 23, 2021
Author: Anshal Dhiman, II Year of B.A.,LL.B from Rajiv Gandhi National University of Law.
In nations and legal systems around the world, a constant tussle ensues between a woman’s right to decide and the right to life of the fetus. The result is a complicated and never-ending debate entangled in various socio-economic and legal factors. The article intends to analyze and introspect the concept under Indian Jurisprudence while considering the foreign positions on the issue as well as why and how they differ from the Indian position.
Pregnancy is divided into three trimesters. Each trimester marks significant development growth of the fetus. In the initial trimester, the fertilized egg becomes a moving fetus with developing organs, while in the second trimester the baby develops more as it becomes a human and it is in the third trimester when the baby grows as much as to be ready to be born.
As the fetus develops inside the womb of a woman, so do its legal and constitutional rights. Over the years a major debate has risen regarding the rights of an unborn baby and the rights of the pregnant woman. Undoubtedly there is a clash of rights. This article tries to analyze the intersection between the rights of an unborn child and the rights of a woman in the context of induced abortion.
REASONS BEHIND THE CRIMINALIZATION OF ABORTION IN MULITPLE COUNTRIES
There are only a few countries in the world that truly have shown a liberal approach to induced abortions and the rights of pregnant women with regards to the same. Many psychological, historical, social, medical reasons exist for governments to criminalize or so much as restricting any sort of abortions in their jurisdictions. Major democracies in the west, along with Australia are the leading countries in abortion jurisprudence, with almost no restriction on the woman to undergo induced abortion. The rest of the world uses the following grounds under which a woman may be allowed to undergo abortion:
To save a woman's life
To preserve physical/mental health
To preserve health/on socioeconomic grounds
To preserve physical health
Apart from the said reasons, social taboos do play a major role in the criminalization of induced abortion. Abortion is not really the best moment of a woman’s life, and so many precautions are taken to prevent just the circumstances leading to the need of getting an abortion. Taboos in society play a big role in that. Although legislatures of many countries (like India) give medical reasons as to the restriction on the choice of induced abortions, medical reasons can’t be different across the world, with major democracies restricting abortion as little as possible. Medical facilities around the world do differ around the world, which might serve as a reason for the difference in medical opinions.
INDUCED ABORTION: WHY ARE WOMEN NOT GIVEN THE AUTONOMY
Before 1971, abortion was illegal in India by the way of section 312 of the IPC. However the language of the provision talked of miscarriage and not induced abortion, therefore both the terms were confused with each other. Induced abortions in India were given legal status in 1971 when the Indian government enacted the Medical Termination of Pregnancy (MTP) Act, at a time when major democracies of the world were working to make abortion feasible for their citizens. In India, however, abortion remains more of a privilege for women rather than a right.
Under the MTP Act, a woman can get an induced abortion before the 20th week of gestation, with exceptions being left to the concerned court’s discretion. The MTP has been amended multiple times in 2002, 2003, and now in 2021 (the current amendment intends to increase the period of gestation to 24 weeks for the purpose of induced abortions), to provide safer facilities to women so as to safeguard their lives during the procedures involved. On paper, India is doing a good job in providing women with the right facilities, but the ground reality is starkly different. Women in rural and semi-urban areas still undergo unsafe procedures because of societal taboos and the lack of freedom to decide. The polysemic existence of section 312 does not help the cause of either the women or the doctors.
An important issue with induced abortions in India is the freedom to decide of women. Women cannot “choose” in the real sense, whether they want to undergo a medical abortion or not. They can merely “consent”. The final decision-making power remains with the doctor, and with the courts, in some instances. The final opinion of the doctor (2 doctors where the gestation period is over 20 weeks under the 2021 amendment) depends on the conditions laid in the MTP Act, which specify when a woman can undergo induced abortion:
When there is a risk to the mental/physical health of the woman
Where there is a chance that the child born may be handicapped or have mental/physical abnormalities
Where the pregnancy is caused due to rape, or failure of contraceptives used by either person in a heterosexual marriage.
Backwardness of the Indian society is perhaps the major reason why induced abortions are so restricted in nature. The majority of the population lives in rural areas, where a more liberal approach to abortion may lead to sex-selective abortions, and threat to the life of healthcare workers who perform the surgeries on women, and many other dangers which may threaten the pregnant woman and the concerned doctors.
It is evident that the sociological make-up of rural Indian society is preventing the Indian government from granting women total liberty over their bodies, which, perhaps, is not what someone would want to see in a country built on constitutional principles as that of India. The government has a lot of work to do and reforms to bring in, but the question remains, how long will women have to live on the discretion of doctors and the courts?
RIGHT TO LIFE UNDER THE INDIAN CONSTITUTION: DOES INDIAN PROVIDE CONSTITUTIONAL PROTECTION OF FETAL RIGHTS?
Constitutions of Slovakia, Peru, Honduras, Chile, and several other countries have clear provisions which provide legal and constitutional rights to unborn children. Article 21 of the Indian Constitution says “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The provision, however, does not make any mention of whether unborn children are considered as “person” for the purposes of this provision, which leaves the onus on the judiciary to interpret whether the Indian Constitution intends to provide certain fundamental rights to unborn children or not.
Indian courts have in certain cases allowed pregnant women to terminate their pregnancies even after the gestation period of 20 weeks has passed, but at the same time has rejected several requests, in cases where the pregnant female is a minor. It has been noticed in Indian abortion jurisprudence that the opinion of medical boards assisting courts is given priority over a woman’s reproductive rights. The question that this section tries to deal with is whether a fetus comes under the protection of Article 21. As mentioned above, the Indian Constitution does not make any mention of a “fetus” in its text.
The bare text of Article 21 does not make mention of whether it is applicable to unborn children or not. Certain Indian laws do make a mention of unborn children or people “who are not in existence yet”, but these cannot be interpreted in the same lines as the matter of this article. Although unborn children are provided with rights under several Indian personal and public laws, to date, there has been no mention of a “fetus” being included under the provision of Article 21, either by the Indian Courts or by any legislature, which certainly clarifies that a fetus is not a person under Indian laws till the time it is born into the world. India has been independent for over 70 years and has had several opportunities to debate on the legal status of a fetus under the laws, which further clarifies the observation made in the previous sentence. An important question that arises now is why does induce abortion to continue to remain a privilege than a right for women, considering that termination of a pregnancy does not really end the life of a “legal person” in the eyes of the law. Various factors play their role in that, but it is important for India to recognize the rights of women to prevent further mental, physical, financial, and psychological sufferings caused to the citizens by the way of unwanted pregnancies.
The article discusses in brief about basics of induced abortion and abortion jurisprudence. There exist many excuses for the governments around the world to continue the illegal status of induced abortions in their jurisdictions. It has been argued for decades that abortions are a human right, and for the same reason they should not be granted as a privilege, but as the right it is. Despite the progress major democracies have made in recent years, a lot still remains to be done to protect the rights of women, especially in India. The Indian Medical Termination of Pregnancy Act has gone through multiple amendments over the years to make abortions more accessible to Indian women, but despite these amendments, Indian women still lack total autonomy over their body and their right to decide.
A lot depends on the government in power at the center, as the previous years and legislative actions have shown that the Indian government is reluctant to give women autonomy over the question of abortions. Rights activists and support from the legal fraternity will play a big role if India is to catch up with the west in its abortion jurisprudence and making abortions more accessible to its citizens.