Reproductive Rights in India

OCT 6

Mains   > Social justice   >   Health   >   Women and Child issues

IN NEWS:

  • In a historic judgment, the Supreme Court on Thursday allowed unmarried and single women whose pregnancies are between 20 and 24 weeks to access safe and legal abortion care on par with their married counterparts.
  • The US Supreme Court recently issued a ruling on Dobbs vs Jackson Women’s Health Organization, overruling Roe vs Wade, eliminating the constitutional right to abortion after almost 50 years.

ROE V. WADE:

  • In Roe v. Wade, the Supreme Court ruled that the United States Constitution provides a fundamental "right to privacy" that protects a person's right to choose whether to have an abortion.
  • Roe v. Wade struck down laws that made abortion illegal in several states, and ruled that abortion would be allowed up to the point of foetal viability. (Foetal viability is the time after which a foetus can survive outside the womb. It is often seen as the point at which the rights of the woman can be separated from the rights of the unborn foetus.)
  • The Court also held that the right to abortion is not absolute and must be balanced against the government's interests in protecting women's health and prenatal life. For this, the Court created the trimester framework:
    • 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".
    • 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.
  • Now, with Roe v. Wade overturned, abortion is still legal in much of the US, but individual states are now free to make abortion illegal.
  • Roe v. Wade became one of the most politically significant Supreme Court decisions in history, dividing the nation into "pro-choice" and "pro-life" camps.

GLOBAL ABORTION RIGHTS:

  • According to a report from the Council on Foreign Relations, the past 50 years have been defined by “an unmistakable trend towards liberalisation of abortion laws, particularly in the industrialised world.”
  • Today, 73 countries make abortion available at the pregnant women’s request with European nations like the Netherlands and Norway leading the pack.

INDIAN LAWS ON ABORTION:

  • Indian Penal Code (IPC) Provisions:
    • Section 312 of the IPC criminalizes intentional causing of miscarriage, if it was not done in good faith for the purpose of saving the Life of the woman. This section effectively makes unconditional abortion illegal in India.
    • Section 313 of the IPC states that a person who causes the miscarriage without the consent of the pregnant woman, whether or not she is in the advanced stages of her pregnancy, shall be punished with life imprisonment or a jail term that could extend to 10 years, as well as a fine.
  • Medical Termination of Pregnancy (MTP) Act, 1971:
    • This law permits termination of pregnancy on certain grounds, by a registered medical practitioner in a hospital established or maintained by the Government or a place being approved for the purpose of this Act by the Government.
    • This law is an exception to the Indian Penal Code (IPC) provisions of 312 and 313 and sets out the rules of how and when a medical abortion can be carried out.
    • Section 3 of the MTP Act allows for abortion by medical doctors on certain grounds:
      • Continuance of pregnancy would involve a risk to the life of the pregnant woman, cause grave injury to her mental or physical health (including rape and failure of birth control measures); or
      • In the case of foetal abnormalities.
      • Termination is also allowed at any point during the pregnancy if there is an immediate necessity to save the woman’s life.
    • The Act was amended in 2021: https://ilearncana.com/details/Medical-Termination-of-Pregnancy-Amendment-Act-2021/1951

 

                           

  • Maternity Benefit Act, 1961:
    • In case of miscarriage or medical termination of pregnancy, a woman shall, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy.
  • Judicial interventions:
    • Even before the 2021 amendments, High Courts across the country have passed several orders permitting termination of pregnancy above 20 weeks in exceptional cases relating to rape or foetal abnormalities.
    • A division bench of Kerala High Court observed in an order passed in 2020 that “Right to make reproductive choices is also a facet of her personal liberty as understood under Article 21 of our Constitution".
    • Even after the 2021 amendment came into force, there have been Court interventions. Eg: In February 2022, the Calcutta High Court allowed the termination of a 35-week foetus on the ground of severe abnormalities.

ARGUMENTS SUPPORTING ABORTION:

  • 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.
  • Protect life of mother:
    • Medical abortions are much safer and that, combined with advancements in technology could explain why since 1992, the treatment rate for severe complications from abortion has declined globally by 76 per cent.
  • Reduce threats from illegal abortion: 
    • The WHO asserts that unsafe abortions are the leading cause of maternal death. In this situation, a ban on abortion or more stringent restrictions will result in more illegal abortion clinics and increased possibility of unsafe abortions.  while legalising abortion may lead to more abortions in counties like the US, it would also lead to an increase in safe practices.
  • Right to a dignified life:
    • According to the WHO, unwanted babies are more likely to be neglected, abused or stuck in cycles of poverty. This violates their right to have a dignified life.
  • Reduce chances of abandonment:
    • If abortion is banned, then chances of a woman abandoning the new born child is high. This would be more dangerous to the life of the baby. Thus, it is better to terminate the pregnancy at an earlier stage.
  • Break the vicious cycle of poverty:
    • A poor woman is more likely to have an unintended pregnancy than a well-off. This can further deepen the divides in income, family stability, and child outcomes in health and education. Here, offering a choice of abortion may result in more benefits than harm.
  • Uphold universal human rights: 
    • Access to safe abortions has been established as a human right by a number of frameworks, the United Nations, the European Court of Human Rights and the African Commission on Human and People’s Rights. In 1994, at the International Conference on Population and Development, 179 governments signed a commitment to prevent unsafe abortions.

ARGUMENTS OPPOSING ABORTION:

  • Abortion is homicide:
    • Many believe that life begins at conception and therefore has a right to life that must be respected. According to this argument, the fetus is an innocent life and the killing of a foetus can be considered a crime.
  • Reasonable restriction on Right to life:
    • The issue of the fetus' life raises the question of whether one person's desire for autonomy can extend to ending another's existence.
  • The ‘slippery slope’ argument:
    • Anti-abortion activists claim that when abortion is legalised, it becomes far more prevalent.
  • Against human morality:
    • A key argument against abortion is rooted in the assertion that the foetus can feel pain, and that termination is therefore a brutal affair.
  • Violation of Hippocratic oath:
    • Some physicians believe that life begins at conception and cite the Hippocratic oath’s tenet to do no harm as their reason for opposing the practice.
  • Discrimination:
    • Aborting fetuses because they may be disabled sends an implicit message of rejection to people with disabilities.
    • Permitting abortion can also lead to sex selective abortions in a patriarchal society. 
  • Impact on health:
    • Anti-abortion campaigners argue that many women suffer significant emotional trauma and complications to the uterus and the Fallopian tubes after having an abortion.
  • Religious arguments:
    • Several religions oppose abortion. they believe that the issue encompasses profound issues of life and death, right and wrong, human relationships and the nature of society, that make it a major religious concern.

WAY FORWARD:

While the question of whether or not to legalise abortion will always be a contested and sensitive one, there are a number of takeaways that could influence policy like the need to provide comprehensive family planning services and adequate support for women who experience unintended births:

  • Address developmental deficit:
    • Human development is the best contraceptive. Hence, governments should focus on enhancing the quality of life through measures like better nutrition, education, employment, access to healthcare etc.
  • Permit flexibilities:
    • Many people identify pregnancy only after the sixth week, pre-viability timelines leave women with very little time and opportunity to make a decision to abort. Thus, laws should ensure the flexibility to address such scenarios.
  • Ensure effective use of Legal and practical barriers:
    • Despite having legislations permitting abortions, unsafe abortions in India accounting for 20 per cent of all maternal deaths. Hence, government should focus on enhancing the accessibility and quality of health services provided to those in need of abortions.

PRACTICE QUESTION:

Q. Indian laws on abortion seeks to strike a balance between an individual’s rights and government's interests in protecting women's health and prenatal life. Elaborate?