The 21st century is a century of transition; the more science is getting involved in the everyday life of an individual the more it is ending up confronting the social and moral narratives controlling individual choices. Law and society are two sides of the same coin. Demand or need of the latter necessitates the formulation of the former and implementation of the former defines or decides the nature of the latter. A change in one is resonated by a corresponding change in the other. India is one of the nations which has taken a progressive stand by Legalising abortion and passing the Medical Termination of Pregnancy Act, 1971 (the MTP Act). This act recognised the right of a woman to undergo an abortion if her case falls under any of the categories specified u/s 3 of this act.
This article will address the issue of ‘abortion’ and will look into its meaning, legality, types in medical sciences, the processes employed to procure it and physical and mental implications. More importantly, it will address the question ‘how far will conservative forces go in an attempt to impose ‘morality’ on a changing society?‘
The word ‘abortion’ is derived from the Latin root word ‘aboriri’ meaning ‘miscarry.’ Although it is a medical phenomenon, it has social, moral and religious notions and implications attached to it. Thus, the meaning attributed to it in medical sciences differs from that in legal sciences. Abortion, in terms of legal science, implies expulsion (either illegally or forcibly) of the product of conception from the womb of a pregnant woman irrespective of her consent and the period of gestation. While in terms of medical sciences it means to terminate a pregnancy before the fetus is developed enough to lead extrauterine life (that is before the birth naturally takes place). Generally, the time period is (i) prior to 20 week of gestation or (ii) when the embryo is not less than 500 gm in weight or (iii) when the length of the embryo from the head to rump is 18 cm.
The reality of abortion is (i) every 8 minutes a woman (in a developing country) dies as a result of an unsafe abortion, (ii) every year, world over, 42 million women choose termination of unintended pregnancy half of which (20 million) are ‘unsafe,’ (iii) it causes death of some 68,000 women annually (iv) it constitutes 13% of maternal mortality, (v) both unsafe and safe abortions leave lifelong physiological and psychological impacts on the woman undergoing it. Studies have shown a directly proportionate relationship between ‘unsafe abortions’ and ‘repressive abortion laws.’
Abortions can be carried out by employing various techniques which can be classified into two categories namely; surgical and chemical. The techniques employed differ according to the stages of pregnancy and can be classified into three categories namely; (i) early stage, (ii) first- trimester; and (iii) second and third trimester.
Right to life and personal liberty is the heart and soul of the wider field of law called the ‘human rights.’ Reproductive rights were not explicitly enumerated but were provided protection under the umbrella of the ‘right to life and liberty’ until the coming into existence of various international and legal instruments (regardless of their justiciability) like the Proclamation of Tehran (1968), Cairo Program of Action (1994), Beijing Platform (1995), Yogyakarta Principles (2006), Article 12 of European Convention on the Protection of Human Rights and Fundamental Freedoms, African Commission on Human and Peoples’ Rights and Inter-American Commission.
The law governing abortion or to say medical termination of pregnancy can be divided into two phases; (i) Phase 1- Decriminalisation of Abortion under IPC; and (ii) Phase 2- Decriminalisation Medical Termination of Pregnancy Act, 197.
IPC and Abortion
Section 312 to 316 of the IPC makes it a punishable offence to procure a miscarriage whether done voluntarily or forcibly. The offences surrounding ‘miscarriage’ fall under the category of ‘Offences against the body.’
Section 312 penalises miscarriage ‘voluntarily’ caused either by (i) a woman herself or (ii) some other person with her ‘consent.’ This section provides for two types of punishments differing in the quantum of sentences offered, depending on whether or not the fetus so aborted was ‘quick with child’ meaning thereby; whether the child was aborted at a very early stage or at a later stage after it started moving in the womb of the mother. Miscarriage caused without the consent of the woman undergoing it is penalised under section 313 IPC.
Also, the code makes the death of a woman caused while intending to cause a miscarriage of such woman with a child, a punishable offence, regardless of whether the offender had the knowledge of the death becoming a probable occurrence during the course of carrying out such abortion. As per section 314 IPC, causing the death of a child before or after birth by any act of the offender is an offence punishable with 10-years imprisonment. Also, the death of an unborn child amounts to ‘culpable homicide’ punishable with a maximum of ten years of punishment and fine.
Medical Termination of Pregnancy Bill, 1969
In 1964, Shanti Lal Shah Committee, formed by the Central Family Planning recommended liberalisation of laws related to abortion in India. This recommendation turned into the Medical Termination of Pregnancy Act, 1971 (MTP Act). This is a small yet significant piece of legislation which runs into ‘eight sections.’
A registered medical practitioner and any other person who procures termination of pregnancy are protected from being charged under the above-mentioned sections of IPC by virtue of section 3 (1) and section 5 of the MTP Act, provided such termination satisfies the grounds listed under section 3 (2). This section empowers ‘registered medical practitioners’ to procure an abortion which they are of an opinion that (i) continuation of the pregnancy would endanger the life of the pregnant women or cause grave injury (including both physical and mental injury), (ii) the child so born would be severely handicapped owing to some mental or physical abnormalities. The explanation one and two attached to Section 3 (2) also enumerates, pregnancy caused as a result of ‘rape’ and ‘failure of contraceptive’ as grounds for valid abortion. The consent of; (i) the pregnant woman who is a major; (ii) guardian of a pregnant woman who is minor or a lunatic, is necessitated in this act. However, if a minor girl or a lunatic (who is capable of knowing the nature of her act) do not consent to such termination, the guardian’s consent does not hold ground.
The act also mandates taking consultation with; (i) one registered medical practitioners in case the period of gestation is up to 12 weeks; and (ii) two medical practitioners when the period exceed 12 weeks but is less than 20 weeks. However, this mandate can be broken when an emergency to save the life of the mother is to be addressed and the decision is taken in ‘good faith.’
The remaining sections empower the government to make such rules that are necessary to implement this act. The Medical Termination of Pregnancy Rules 2003 lays down rules which are to be followed by the abortionist and the other stakeholders while carrying on an abortion.
While dealing with the issue of abortion, the judiciary is often confronted with the question of ‘when life begins.’ While deciding the constitutional validity of the MTP Act, the Apex Court consciously avoided this question and offered no answer to it. In fact, answer to this question is still awaiting an answer from the judiciary and the legislature around the world. There are two groups called the ‘pro-life’ (life beings the moment the egg fertilises) and ‘pro-choice’ (the embryo has no life and the parents have full right to decide what to do with such embryo).
Another question that is creating legal chaos is ‘should the time period of 20 weeks is extended to 24 weeks?’ The Indian Judiciary has taken different stands time and again. There have been some cases where the Apex Court permitted rape victim survivor to abort her child after 26 weeks of pregnancy while there are some verdicts given by the High Court of Andhra Pradesh and Bombay which did not permit minor rape survivors to abort their children after the ceiling time period of 20 weeks.
I believe that human beings are driven by greed and controlled by emotions. History bears testimony to my statement. The Social Contract Theory proposed by the various jurist states that the state came into existence owing to different reasons to serve the common interest and because of a common cause and that is greed to survive, to seek the pleasure of the authority and sustain their rights to life and liberty.
I am surprised by the importance we give to views expressed by philosophers, jurists, political thinkers, sociologists, legislatures, diplomats, or judges. Legislation written by one individual at a particular period in history impacts the lives of millions of women; this goes on for years in spite of changing social structures.
It is high time we address socially uncomfortable and morally challenging issues with a rational mind.