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Published: Fri, 02 Feb 2018

Legalizing Abortion in India

India is a country of mixed diversities in unity which is filled with varied culture.Starting from the Kashmir and ending till Kanyakumari our country denotes a different characteristics of culture where some adopt a positive notion about any aspect where others adopt pessimistic attitude. Due to this difference in attitude of people we have our country had always faced great difficulty if it has tried to change any particular aspect which secures a great importance in the society.

In medical terminology, the term abortion refers to two basic phenomena: miscarriage (spontaneous abortion) and induced abortion. In common parlance, the term “abortion” is synonymous with induced abortion. However, in medical texts, the word ‘abortion’ might exclusively refer to, or may also refer to, spontaneous abortion (miscarriage).

Abortion always had many myths right from the ancient history when it was considered the worst step of the mankind resulting an action against the god till the modern age of 21st century when the professional world hardly cares for such steps.

Abortion in India has been legal since 1971 and there are about 11 million abortions performed per year. Through history, women have practiced forms of birth control and abortion. These practices have generated intense moral, ethical, political and legal debates since abortion is not merely a techno medical issue but “the fulcrum of a much broader ideological struggle in which the very meanings of the family, the state , motherhood and young women’s sexuality are contested”

The basic question of fact before us is “Who goes for abortion”?

1)The educated married female after having specific number of childs, automatically go for abortion to prevent unwanted birth of again another child.

2)In other cases the husband do force the wife to perform abortion (Although they don’t have any child yet) and finally the abortion happens against of that female’s wish.

3)Non married ladies go for abortion to prevent the birth of a child which is considered socially illegal.9936649425

Legalizing abortion has not ensured its accessibility to the poor nor been an effective method for curtailing population growth. Legal abortion as introduced in 1971 concerned about the rising population growth which became an issue for India. Our country being a nation filled with amalgamating religions has always considered abortion a step against the text of holy books hence against god. But the major concern of the present society is the rising problem of population in India which is has its negative attitude in all the sectors such education, finance etc., therefore it should be controlled.

A lot of people in India are turning more towards abortion for girls because in India, there are less than 93 women for every 100 men in the population. The accepted reason for such a disparity is the practice of female infanticide in India, prompted by the existence of a dowry system which requires the family to pay out a great deal of money when a female child is married. For any poor family, the birth of a girl child denotes the beginning of financial ruin and extreme hardship. With the process of liberalisation of the law on abortion which has spreaded across various countries, international medical organisations were compelled to make their positions clear. The Declaration of Oslo issued by the World Medical Association in 1970 conceded to the need to provide abortion services. The document stated that: “where the law allows therapeutic abortion to be performed, the procedure should be performed by a physician competent to do so in premises approved by the appropriate authority”.

The definition of what is “therapeutic” becomes important. During the era of criminalisation, “therapeutic” abortions were conducted to save the life of the pregnant woman or to prevent maternal mortality. During the era of liberalisation, however, this definition is widened to include potential or expected medical or psychological morbidity and this is articulated in the form of a number of legal conditions. The concept of the risk to women’s life is thus broadened and by treating induced abortion as a “therapeutic” intervention, the medical profession is in a position to accommodate induced abortion in its ethical system with few problems while maintaining its monopoly over the process. Liberalisation of this kind does not empower women with a fundamental right to abortion but merely liberalises their access to services at the hands of medical practitioners. This helps the social relations within a patriarchal system to remain unchallenged and intact.

On the whole, the medical profession has vehemently criminalised abortion but remained ambiguous over its stand on the issue of liberalisation. At no stage, however, did the issue of abortion endangered the material interests of the profession: while criminalisation helped it to eliminate competition from indigenous (female) practitioners in the 19th century, liberalization only empowered it with greater legal and normative authority. Under Indian law, ending a pregnancy only because a foetus is female has already been outlawed, although the practice is common.

They then choose to have an ultrasound so they can determine if they are having a male or female.

The Indian abortion laws fall under the Medical Termination of Pregnancy (MTP) Act, which was enacted by the Indian Parliament in the year 1971. The MTP Act came into effect from April 1st, 1972 and was once amended in 1975. The Medical Termination of Pregnancy (MTP) Act of India clearly stressed the conditions under which the pregnancy can be ended or aborted , the persons who are qualified to conduct the abortion,the place of implementation etc,

The Medical Termination of Pregnancy (MTP) Act: The MTP Act in India is founded on the principles of the British act passed by its parliament in 1967. As the opening paragraph states, that the MTP Act is designed “to provide for the termination for certain pregnancies by registered Medical Practitioners and for matters connected therewith or incidental thereto”. In essence, it liberalises and (attempts to) regularise medical practices and institutions in relation to abortion and, consequently, allows medical liberalisation to supersede medical criminalisation.

There are many cases before the court which proved many pros and cons.

In Mr. Vijay Sharma and Mrs. Kirti Sharma vs. Union of India (UOI) through the Ministry of Law and Justice and Ministry of Health and Family Welfare , the court says that foeticide of girl child is a sin; such tendency offends dignity of women. It undermines their importance. It violates woman’s right to life. It violates Article 39(e) of the Constitution which states the principle of state policy that the health and strength of women is not to be abused. It ignores Article 51A (e) of the Constitution which states that it shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women. The architects of the MTPA, 1971, have not taken into consideration the fundamental rights of the foetus to be born. It is submitted that ‘life’ exists in the foetus while in the womb of the mother and in this context article 21 of the constitution of India is applicable to unborn person as well. Thus it can be considered as the greatest argument for validating the MTP act as unconstitutional.

In case William L. Webster et al V. reproductive health services at el , the supreme court upheld a Missouri statute which declared that “the life of each human being begins at conception” , and that ‘unborn children have protectable interest in life, health and well being’.

In Mr. Vijay Sharma and Mrs. Kirti Sharma vs. Union of India (UOI) through the Ministry of Law and Justice and Ministry of Health and Family Welfare, the court says that foeticide of girl child is a sin; such tendency offends dignity of women. It undermines their importance. It violates woman’s right to life. It violates Article 39(e) of the Constitution which states the principle of state policy that the health and strength of women is not to be abused. It ignores Article 51A (e) of the Constitution which states that it shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women. Sex selection is therefore against the spirit of the Constitution. It insults and humiliates womanhood. This is perhaps the greatest argument in favour of total ban on sex selection. The court thus keeps the things in a dilemma as at one stage it is saying that there should be a total ban on sex selection whereas on the other hand it is keeping the doors open for the people through MTP Act. If things should be made right, then court has to look at the other aspect too. Court says that MTP Act can’t be challenged as, “The object of the Act being to save the life of the pregnant woman or relieve her of any injury to her physical and mental health, and no other thing, it would appear the Act is rather in consonance with Article 21 of the Constitution of India than in conflict with it. ” This act does not heed any importance to the foetus which is in the womb, saying that it can’t be said as a person. Whereas in an English case R V. Tait , the court of appeal quashed the conviction of a burglar on the ground that ‘threat to kill a foetus’ is not an offence directed against the another person. In another case R V. Sullivan , midwives who attended the delivery of a foetus that failed to survive birth were charged with the offence of criminal negligence of causing death to another person (foetus). The unborn child need not reach the stage of viability to maintain an action for recovery of damages under the law of torts . Thus the unborn child to whom live birth never comes is held to be a person who can be the subject of an action for damages for his death. The law of succession also for many purposes treated a child in the womb equal to a person in existence

There should be no doubt that a foetus or a child in mother’s womb is not a natural person. But there should be equally no doubt that it is a ‘juristic’ or ‘juridical’ person. In all jurisprudential jurisdictions, a child en ventre sa mere is recognized as a legal person capable of inheriting or otherwise acquiring and holding property and also other legal rights. And there should be no doubt that only a person, whether natural or juristic, is capable of acquiring those rights.

In America, the law of torts abounds in decision where a child has been allowed to maintain action for injury sustained before its birth at any time during the entire period of gestation and it is now firmly established that any injury caused to the foetus is to be regarded as personal injury to the child. In India under the Hindu law, a son is entitled to have reopened the partition of the ancestral property taking place while he was in the mother’s womb without keeping any share reserved for him. In the law of wills, both in India and in England, a child in the mother’s womb is considered to be in existence and section 99(1) of the Indian succession act 1925, clearly provides that “all words expressive of relationship apply to a child in the womb who is afterwards born alive”.

Clearly, the MTP Act does NOT encompass a fundamental right to induced abortion but is limited to the liberalization of the conditions under which women may have access to abortion services provided by approved medical practitioners. Medical liberalization, therefore, necessitates medicalisation of the liberalized conditions given in the Act. This is done by expanding the earlier medical indication of saving a pregnant woman to include medical and psychological morbidity or the potential of such morbidity if the woman is forced to carry an unwanted pregnancy to full term. Thus from the medical angle, the termination of a pregnancy becomes a “therapeutic” intervention rather than a right.

Clearly, the pregnant woman seeking abortion cannot avoid giving an explanation. To say that pregnancy was wanted at the time of conception but is unwanted now disqualifies her. She is required to furnish explanations that fit into the broad liberal though restrictive conditions listed in the Act. This situation keeps the Act open to differing interpretations. The current pre occupation with population control and the somewhat dubious motivations of the medical profession have, ironically, lent a liberal interpretation of the law. However, the danger that this liberal interpretation could become a restrictive one without a single word of the text being altered remains. This could easily happen under different socio economic and demographic compulsions.

The Act also requires that abortion be induced legally only by a registered Medical Practitioner “who has such experience or training in gynaecology and obstetrics” and conducted only at a place that is sanctioned by the appropriate authority (if the facilities available follow the standards prescribed in the Rules of the Act). This stipulation is essential and laudable. However, a liberalised law has little meaning for the many women who wish to terminate their pregnancies in the absence of well developed network of abortion facilities. The MTP Act fails to regard the right to access as a justiciable right and is, therefore, ineffectual in curbing the incidence of illegal abortions.

According to the Consortium on National Consensus for Medical Abortion in India, every year an average of about 11 million abortions take place annually and around 20,000 women die every year due to abortion related complications. Most abortion related maternal deaths are attributable to illegal abortions.

Abortion has stirred up raging political and legal controversies worldwide. In many countries religious and political groups refer to abortion as murder, while women’s rights advocates insist it forms part of a woman’s fundamental right to have control over her body. In India, however, such a polarisation of views has been absent. In fact, there was hardly a fight when the Medical Termination of Pregnancy (MTP) Act legalised abortion in 1971. The law passed quietly, without any significant religious or political opposition.

The Act was quite an advanced piece of legislation for its time, stipulating that abortions (up to twenty weeks of gestation) could be performed by registered medical practitioners. The passage of the Act seemed to imply that a woman who decided to terminate her pregnancy would no longer be hindered by the law in making this choice, nor would she be forced to risk her life doing so. However, in the context of an under funded and unaccountable health care system, much of what was envisaged during the passage of the Act failed to materialize. To a close observer, this should not come as much of a surprise. In the political climate of that time, concern for women’s reproductive health was not a major factor in the passage of this law. In fact, it was expedited largely due to pressure from the population lobby.

Notwithstanding the few people involved in the drafting process who were genuinely concerned with improving conditions for women, the main impetus behind the Act was the belief that legalising abortion would help curb the population growth rate.

From a legal standpoint, however, the Act seemed to place India at the front line of the women’s rights movement on the issue of a woman’s right to choose the circumstances of her own childbearing. In the early 1970s, India was one of the first countries in the world to pass such a liberal abortion law. The addition of flexible criteria for eligibility such as “contraceptive failure” indicates that the legislation was not meant to be restrictive. In fact, the 1971 law could be seen as similar to laws in other countries which have legalised abortion on request as long as the woman is less than a designated number of weeks into her pregnancy.

Abortion is a subject deeply buried within the culture of silence which obscures most matters related to sexuality. The combination of the social shame surrounding abortion and the government’s failure to spearhead an awareness campaign has made it difficult for women to get accurate information. The failure of government to provide the necessary information is not surprising as it is difficult to promote a service that does not exist in most locales. Since so very little attention was paid to educating the public about the MTP Act, many women even today still do not know that abortion is legal. Another major concern is the safety of the methods used by doctors to terminate pregnancies. Surgical abortion by dilation and curettage (D&C) is still the most commonly used method in India.D&C is done under general anesthesia and is usually an inpatient procedure.

An alternative method for early abortions is manual vacuum aspiration (MVA). MVA is easier to perform, quicker, portable, safer, and it is not dependent on an electric power connection. It is done on an outpatient basis and there is often no need for general anesthesia, which means there is less risk to the woman. Using MVA requires less sophisticated back up equipment, hence its use would mean that less equipped places would be able to conduct early term abortions safely, making the service more accessible. The government has recommended MVA for abortions of all pregnancies under 12 weeks of gestation. While D & C may be the only method many doctors are familiar with, that is not enough to justify its use in early term abortions since it entails much more risk to the patient.

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