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  • Shreya Sinha

ABORTION IN INDIA: A RIGHT OR A CHOICE

Updated: Aug 28, 2020

By- Ankesh, 2nd Year Student at National Law University Odisha and Jay Gajbhiye 2nd Year Student at National Law University Odisha

INTRODUCTION

Article 21 of the constitution of India includes the right to life and privacy, and the unlawful denial of freedom is forbidden by Section 6(1) of the International Covenant on Civil and Political Rights. Yet this supreme right has several contentious aspects about it. Another such topic is Access to the Abortion issue. This is claimed, among many women’s freedoms, that any mom has the right to abortion, it is a fundamental right. Yet Mother’s interests have to be contrasted with the unborn’s rights. Earlier the right to abortion was not permitted and culture firmly rejected it. The termination of abortion was dubbed the killing of a fetus. Yet because of the transition of time and technology, that freedom has since become constitutionally recognized by several nations since the prominent U.S. Supreme Court ruling of Roe v. Wade[1] of that case, the Court ruled that a woman may terminate her pregnancy for whatever reason, before the stage at which the fetus is ‘viable’. But there are always resistance and citizens still feel it should be constitutionally banned.

Female foeticide is the product of a societal structure of gender inequality that discriminates against women and believes that they are less important than males. Sons are favored over females in this oppressive culture, for several specific purposes. Either economically or socially, women and girls are deemed poor and valued less than males. Women in this culture may be more costly when it comes to finances, as women are supposed to be married to another man. Social practice in India is that the woman will marry into a higher-class unit. So, to guarantee the union, if her parents want this to happen, they must be willing to offer a wide (expensive) entrance. A dowry can consist of land, property, or a certain amount of money.


RIGHT OF A WOMEN TO TERMINATE PREGNANCY

The right to abortion is a species of right to privacy, which is again proclaimed a continuance of the right to life under Article 21. It can also say to be including the complete right of a woman over her reproductive organs.

Section 312 of the INDIAN PENAL CODE, 1860 causes miscarriage punishable. It says:

Causing miscarriage. - whoever causes a woman with child to miscarry, shall, if such miscarriage is not caused in good faith to save the life of the women, be punished with imprisonment of either description for a term which may be extended to three years, or with fine, or with both; and if the woman quick with child shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.[2] Section 312 punishes the person who causes the miscarriage to women.

Commonly the word miscarriage is used synonymously with the word abortion. Section 312 grants the woman the privilege to motherhood which offers adequate safeguards for this privilege but at the same time excludes the women’s right to abortion; it ensures she has no control over her body. It is not just a matter about a woman’s privilege to her body as there is always a problem with a child’s right to live in the womb of a mother.

There is a clash between the unborn child’s right to life and women’s right over her body, i.e. abortion rights. This issue also raises another issue when life begins- it could be immediately after the egg is fertilized; when the fetus gets a soul or when the fetus can live outside the mother independently, or when the mother delivers the baby. Once conceiving starts, there is a moral problem, As Section 312 gives punishment of three years on 'incarceration or fines or both for causing a woman with child and up to seven years.’


CONSENT OF A MENTALLY RETARDED FOR ABORTION NECESSARY

In several instances and notably in the past decade, the “reproductive rights” of women with special needs have been recognized by courts. Parliament has passed the “Rights of Persons with Disabilities Act, 2016 (RPD Act)”, which ensures diverse privileges to people with special needs[3], like their sexual liberty, etc[4]. “Section 3(4)(b) of the Medical Termination of Pregnancy Act 1971 (MTP Act)” directs that, without permission of the pregnant mother, no pregnancy be “terminated”. Throughout the sense regarding women with special needs, this is further recapitulated by the RDP Act. “Section 92(f) of the RPD Act” outlaw the executing, administering, or controlling actions of a medical operation on a female with an impairment, that, without her explicit permission, contributes to or is probable to contribute to an end to her pregnancy. It disallows treatments for the therapeutic “termination of pregnancy” in extreme injury situations with the approval of the woman’s parent and in the view of a “Registered Medical practitioner”. The immunity is in line with “section 3(4)(a) of the MTP Act”, where the pregnancy of women over 18 years with a mental disorder cannot be discontinued without her guardian’s informed permission in “writing”. The MTP Act describes a “mentally ill” person as a “person who requires treatment because of any mental disorder other than mental retardation.”


PREGNANT WOMEN WITH INTELLECTUAL DISABILITIES

The Supreme Court, in Suchita Srivastava v. Chandigarh Administration[5], reversed a judgment by the High Court that a woman with “mild intellectual retardation” without her permission terminates her pregnancy. In compliance with “Article 21 of the Constitution of India”, the Court observed that the woman had not been “mentally ill’ and had obtained a “majority” and affirmed her constitutional right to make reproductive decisions. The reading of “Section 3 of the MTP Act” regarding women’s permission to end her pregnancy compared “mental retardation” with “mental disorder”, which declared that the dilution of the provision of permission to “mental retardation” for women was an unfair and irrational limitation of reproductive privileges. The Court recalled the State responsibilities under the “Convention on the Rights of Persons with Disabilities” to safeguard esteem for the reproductive option of women with “mental retardation”.


THE PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) ACT, 1994

To counter “female foeticide” in the nation by the abuse of technology, which is achieved abruptly with the strong concomitance of the service suppliers and the citizens requesting such assistance, on 20 September 1994 the Government of India implemented the “Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act”. The Act was revised in 2003 to strengthen the control of sex-selecting technologies and to avoid the deterioration in the infant sex ratio as shown by the Census of 2001 and became effective from 14.02.2003. As a result of improvements, the Act was renamed the “Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act of 1994”.

The main objective of enforcing :

  1. Forbid the utilization of “techniques of sex selection” before or after fertilization.

  2. Avert the abuse of pre-natal diagnostic methods for “sex-selective abortions”.

  3. Monitor such methods: Strict penalties for using prenatal diagnostic methods to unlawfully determine the “sex of the fetus” has been recommended under the law.


CONCLUSION

“Female foeticide” is an ever-increasing issue in the Indian background and this essay discusses the legal measures that have taken a destructive turn in the nation’s “socio-political” landscape to counter this moral bad. Practices such as “amniocentesis”, “CVS”, and any other hereditary abnormality screening techniques should be prohibited. This is focused on the idea that there should be no prejudice against a “child” because of an impairment or on the grounds of limited and conventional patriarchal ideals and standards. In compliance with “Article 2 of the Child Rights Convention”, an impaired child has as much of a privilege to be raised as an ordinary child does. This proposal often tackles the question of female foeticide. If no detection of “genetic abnormalities” is permitted, the administration will conveniently be able to monitor sex determination tests. The Father of the Nation once said:

“Women are the companion of a man gifted with equal mental capacities. She has the right to participate in the minutest details, in the activities of man, and has an equal right to freedom and liberty with him.”

References


[1] Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County 410 U.S. 113 (more) 93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159.

[2] Indian Penal Code, 1860

[3] Rights of Persons with Disabilities Act, 2016.

[4] Section 10, Rights of Persons with Disabilities Act, 2016

[5] (2009) 9 SCC 1.

(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

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