Parmanand Pandey

It is estimated that in India more than seventy thousand young women die every year undergoing an unsafe abortion. It is mainly because they cannot avail the facilities of the legal termination of their pregnancy for various reasons. It must be fresh in the memory of the most of the people of India that way back in 2012, a young 31-year-old Indian Dentist Savita Halappnawar died at the Galway Hospital in Ireland due to the complication of a septic miscarriage as she was denied an abortion. The untimely death of the young woman because of the insane and mindless laws of the Ireland, guided by the Catholic belief, led to worldwide agitation. Savita was seventeen weeks pregnant. Despite knowing the fact that she was carrying a ‘still’ child in her womb, the Hospital did not allow the abortion. Even the plaintive scream of the young promising Dentist with excruciating pain could not move the Hospital Doctors to save her life in the name of the Catholic Religion.

In India also the abortion was illegal but on the intense demands of the Human Right Activists across the country, the Medical Termination of Pregnancy Act was passed in 1971, which allowed the abortion of the fetus of up to 20 weeks on three grounds (a) when there is danger to the life or risk to physical or mental health of the women; (b) on humanitarian grounds- such as when pregnancy arises from a sex crime like or intercourse with a lunatic women etc. and (c) eugenic grounds- where there is a substantial risk that the child, if born, would suffer from deformities and diseases.

The right of the woman to live with dignity as provided under Article 21 of the Constitution gets little importance in the Act because of danger to her life as determined by the doctors that decide the fate of abortion. The factor, therefore, that comes into play is the life of the woman and not her choice. It is a matter of happiness and satisfaction that the Supreme Court of India has started adopting the balanced view on this issue. Every woman who decides not to continue with her pregnancy has her own history and reasons. The answer to it is not easy. For example; what should the doctor do when the daughter of a friend who cannot abort her fetus because she cannot get the support of her family due to their religious beliefs? She is all alone but she does not want the child. Should the Doctor sit in judgement? What would have been the response of the doctor in such a case if the girl had been his/her own daughter?

The second scenario is a corporate executive who going through a challenging divorce. She was distraught at finding that emergency contraception had failed her. She would have experienced a legal setback had her husband and opposing counsel knew that she was pregnant. While it was impossible to prove the husband’s infidelity, her pregnancy could have been used to tarnish her image and weaken her case. In this case, whether the Doctor should adopt the sympathetic approach towards the woman or go by the cold law?

The third situation visualises the story of an uneducated housemaid. She has already two children and a failed sterilisation. Her husband is uncaring and unsupportive and prone to drinking. She is desperate and abortion is her only option because she cannot afford to have a large family. She has continued to exercise her reproductive freedom by being on contraceptives but even then she got undesired pregnancy. What should the Doctor do in such case?

Such predicaments for the doctors and courts exist not only in India but all over the world. ‘Roe v. Wade’ (1973) became one of the most significant cases in the history of U.S. Supreme Court – which literally divided the nation into “pro-choice” and “pro-life” camps and inspiring grassroots activism. This is a landmark decision of the United States Supreme Court establishing that most laws against abortion violate a constitutional right to privacy, thus overturning all state laws outlawing or restricting abortion that were inconsistent with the decision. Jone Roe, the plaintiff wanted to terminate her pregnancy because she contended that it was a result of rape. Relying on the state of medical knowledge, the decision established a system of trimesters that attempted to balance the state’s legitimate interests with the individual’s constitutional rights. The Court ruled that the state cannot restrict a woman’s right to an abortion during the first trimester, the state can regulate the abortion procedure during the second trimester “in ways that are reasonably related to maternal health,” and in the third trimester, demarcating the viability of the fetus, a state can choose to restrict or even to proscribe abortion as it sees fit.

There are many arguments which are advanced against abortion like; (a) the issue of the fetus’ life, which raises the question of whether one person’s desire for autonomy can extend to ending another’s existence; (b) the killing of innocent is a crime and the fetus is also an innocent life; (c) many women suffer significant emotional trauma after having an abortion; (d) 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; and (e) an embryo (or, in later stages of development, a fetus) 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 a homicide.

The recent judgement of the Supreme Court in Meera Santosh Pal and Ors vs Union of India and Ors’ on has come to the rescue of a distraught woman, who was in the advanced stage of pregnancy. The case history, in brief, is that Meera Santosh Pal, is 22 years old apprehended danger to her life, having discovered that her fetus was diagnosed encephalitic, a defect that leaves foetal skull bones un-formed and is both unrepeatable and certain to cause the infant’s death during or shortly after birth. This condition is also known to endanger the mother’s life.

The Court said that ‘we have been informed that the fetus is without a skull and would, therefore, not be able to survive. It is also submitted that the woman has undergone a psychiatric evaluation. She is reported to be coherent, has average intelligence and with good comprehension. She understands that her fetus is abnormal and the risk of fetal mortality is high. Moreover, the continuation of pregnancy can gravely endanger the physical and mental health of the woman’.
The Court observed: ‘there is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on the use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.’

The Court said ‘the crucial consideration in the present case is whether the right to bodily integrity calls for a permission to allow her to terminate her pregnancy. The report of the Medical Board clearly warrants the inference that the continuance of the pregnancy involves the risk to the life of the pregnant woman and a possible grave injury to her physical or mental health as required by Section 3 (2)(i) of the Medical Termination of Pregnancy Act, 1971. Though the pregnancy is into the 24th week, [but] having regard to the danger to the life and the certain inability of the fetus to survive extra uterine life, we consider it appropriate to permit the petitioner to terminate the pregnancy. The overriding consideration is that she has a right to take all such steps as necessary to preserve her own life against the avoidable danger to it.’

The right to life, the right to liberty, and the right to security of person are major issues of human rights that are sometimes used as justification for the existence or the absence of laws controlling abortion. Arguments on morality and legality tend to collide and combine, complicating the issue at hand. Abortion debates, especially pertaining to abortion laws, are often spearheaded by advocacy groups belonging to one of two camps. Most often those in favour of legal prohibition of abortion describe themselves as pro-life while those against legal restrictions on abortion describe themselves as pro-choice. Both are used to indicate the central principles in arguments for and against abortion: “Is the fetus a human being with a fundamental right to life” for pro-life advocates, and, for those who are pro-choice, “Does a woman have the right to choose whether or not to have an abortion? “It is expected that in the days to come the law will tilt towards ‘women’s choice’ rather than religious or moral considerations.


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