- Author Name: Anupama Kumari Rai
- Details: Advocate, Bombay High Court, B.Sc, LLM
The question which is the reason for this discussion is- whether a mother has a right to abortion vis a vis the right to life of the unborn. What are the International instruments which sanction the right to abortion. What is the stand of India on this. Abortion has always been a difficult topic for women because of the way they have been manipulated and made to feel guilt over their maternal roles. The free choice between motherhood or voluntary interruption of pregnancy should be available for women because every infant born has a right to be wanted, loved, and nurtured by the parents. The concept of life that informs support for the choice of abortion goes beyond the merely biological. An infant, to become fully human, requires language, culture, and affection. An infant should represent a human life that is planned, desired, and hoped for, whose arrival is an occasion for joy rather than despair, and that gives motherhood its true character of privilege. In any situation the minimum conditions of caring for an infant must not be missed otherwise this becomes a greater crime.
It is a woman’s individual rights, right to her life, to her liberty, that sanctions her right to have an abortion. Reproductive rights are internationally recognized as critical for women's human rights and to promote development. Each and every woman has an absolute right to have control over her body, which is mostly known as bodily rights.
Human Rights are those rights, which should be available to every individual without any discrimination of any kind. Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom. The most important right of a Human is the right to life. It is the supreme human right from which no derogation is permitted. It is inalienable. The Article 6(1) of the International Covenant on Civil and Political Rights prohibit the arbitrary deprivation of life. But there are some controversial issues related to this supreme right. One such issue is the question of Right to abortion. Among other rights of women, it is believed that every mother has a right to abortion, it is a universal right. But the rights of the mother are to be balanced with the rights of the unborn.
Earlier the right to abortion was not permitted and it was strongly opposed by the society. The termination of pregnancy was termed to be a murder of the fetus. But due to the change in time and technology, nowadays this right has been legally sanctioned by most of the nations after the famous decision of Roe Vs Wade by the US Supreme Court. But the oppositions are still present and people do believe that it should be legally prohibited.
What is Abortion ?
“abortion is the removal or expulsion of an embryo or fetus from the uterus, resulting in, or caused by, its death.”
This can occur spontaneously as a miscarriage, or be artificially induced through chemical, surgical or other means. Commonly, “abortion” refers to an induced procedure at any point in the pregnancy; medically, it is defined as a miscarriage or induced termination before twenty weeks gestation, which is considered nonviable.
A woman has a right to abortion if:
# The continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated
# The termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman
# The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman
# The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, or injury to the physical or mental health of any existing child of the family of the pregnant woman
# There is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
# Or in emergency, certified by the operating practitioner as immediately necessary:
to save the life of the pregnant woman or to prevent grave permanent injury to the physical or mental health of the pregnant woman.
The right of a woman to her private life has been the basis on which a number of international bodies have upheld the right of a woman to have an abortion. The right to freedom of expression and access to information has been used to argue for the right of women to receive information about abortion options. The right to access abortion may also be based on the right of a woman to decide freely and responsibly on the number and spacing of her children.
Section 3 of the MTP Act, 1971”Act, says that pregnancy can be terminated:
(1) As a health measure when there is danger to the life or risk to physical or mental health of the women;
(2) On humanitarian grounds - such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman, etc. and
(3) Eugenic grounds - where there is a substantial risk that the child, if born, would suffer from deformities and diseases.
A woman's right in this respect is doubtful because her right is dependant on certain conditions: proof of risk to her life or grave injury to her physical or mental health, substantial risk of physical or mental abnormalities to the child if born and a situation where abortion could only save her life, all to be arrived at by the medical practitioners. Can a woman request a medical practitioner to perform an abortion on the ground that she does not want a child at that time? Where the liberty of the woman is fully dependent on certain other factors, such a quest cannot be said to be just and reasonable. The M.T.P. The Act also does not classify the pregnancy period so that the woman's interests and the state's interests could be given predominance in one's own spheres.
various decision of Indian courts show that a woman has an absolute right to abortion and no one can take away this right from her. The Judiciary has been playing a vital role in securing these rights to women. Right to abortion is a fundamental right of privacy.
Right To Abortion Of The Mother Vs Right To Life Of The Unborn
(Arguments for and against )
Religious, moral, and cultural sensibilities continue to influence abortion laws throughout the world. 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. Many countries in which abortion is legal require that certain criteria be met in order for an abortion to be obtained, often, but not always, using a trimester-based system to regulate the window in which abortion is still legal to perform. In this debate, arguments presented in favor of or against abortion focus on either the moral permissibility of an induced abortion, or justification of laws permitting or restricting 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 favor 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"
The great Tamil Saint Thiruvalluvar said :-
"The touch of children is the delight of the body; the delight of the ear is the hearing of their speech". A mother has got a natural duty to provide the maximum best possible to her offspring. However, situations may arise where she indulges in activities, which injuriously affect the foetus. It may be due to ignorance, carelessness or acts done willfully. Abortion is an issue to be left to the decision of the mother. However, taking viability of a legal standard, necessary protection should be provided to the unborn. It is also beneficial to the mother, where the state or voluntary organizations are ready to take care of the unborn. There is no meaning in conferring a right to the mother to destroy the foetus. Her right is limited to have a termination of pregnancy. It is also said that delivering 20 million babies annually would be a greater strain on the nation?s medical services and economic resources than, say, performing one to five million abortions a year.
The law has to take care of the liberty of the mother as well as the unborn. As a hospitable community we should seek ways of providing support for lonely and frightened mothers, and for lonely and abandoned babies. We need to offer women with unplanned pregnancies as much love and support as they require and to assist them in finding compassionate alternatives to abortion.