By Koshika Krishna, Rizvi Law College, Mumbai University.

The United States of America faces a dilemma. An NGO sobriquet ‘Planned Parenthood’ has come under the radar of public outrage. This initiative started with the motto ‘Care. No matter what’, aimed to introduce America into the new era of family planning, reduced teenage pregnancy and maternal mortality rates. It was highly lauded by the federal government of America. However in recent times, this mighty name has been smeared with myriad incidences. One of these evidenced a criminal conspiracy to make money off aborted baby parts while the other shows its workers engaged in sex selection scandals. Sparking off in the aftermath, debates over ‘abortion right and ethics’. The people have been divided over the contentions of pro-life and pro-choice hence raising, many significant questions on this front. For instance, how far do the statutes of ‘right to privacy’ stretch. Do they refuge a woman’s right to freely decide the fate of the foetus within her womb? Or should one, as assumed in many religions, heed to the opinion that a foetus from the day of its conception is a living being and hence entitled to being protected under the homicide laws as any other human?

India with its growing population and increasing gender equality etiquettes is also experiencing similar ideological conflict. How far do the reproductive rights of a woman extend? Can India take any concrete decision on this front, considering its past with foeticide and preference of male child?

International Laws

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‘The Convention on the Rights of the Child, 1990’ was the first binding international instrument embodying legal recognition to the rights of children. It advocates the civil, political, social and economic rights of every human below 18 years of age. Right to life, protection against exploitation and violence are a few basics that every country must execute for their young citizens. Since the exact definition of  the term ‘child’ has not been explained, this statute has been rampantly abused in many Courts. Similar views are also voiced in Article 1 of the ‘Declaration of Rights and Duties of Man’ and Article 4 of the ‘American Convention on Human Rights’. The ICCPR however takes a contradictory opinion here. Article 6(1) of this Covenant rejects extending the ‘right to life’ to the prenatal stage. ‘The Convention on the Elimination of All Forms of Discrimination against Women’ is also of the opinion that the rights of a woman must supersede that of a foetus.

Historic Judgment:

In America, the first step to decriminalise abortion laws was introduced after the ‘Roe v. Wade’ case wherein a woman brought a suit challenging the constitutionality of the Texas abortion laws. The issues raised were:

  1. Do laws that criminalise all abortions, except those sanctioned by a medical practitioner to save a mother’s life, violate the ‘equal protection of law statute’ under the U.S Constitution?
  2. Does the Constitution protect the right to privacy of an individual, including the right to obtain an abortion?
  3. Are there any circumstances where the state may enact laws prohibiting abortion?

The Court held that those State Criminal Laws that do not take into consideration the various stages of pregnancy are unconstitutional and violate the ‘Due Process Clause’ of the Fourteenth Amendment. As per this law, it is the duty of the Court to protect the fundamental rights of the citizens such as life, liberty or property from government interference under the authority of the principle ‘Substantive due process’. The ‘right to privacy’ of a woman was extended towards her freedom over the status of her pregnancy up to the third trimester, hence creating a balance between the woman’s absolute right over bodily integrity and the State’s interest.

Advocates of Roe believe that, “When a woman is compelled to carry and bear children, she is subjected to ‘involuntary servitude’ in violation of the Thirteenth Amendment. Even if the woman has consented to the risk of pregnancy, this does not permit the State to force her to remain pregnant.” While the opposition maintains that personhood begins at fertilization or conception and should therefore be protected by the Constitution.

India’s Legal Perspective

In India ‘Section 312 of the Indian Penal Code, 1860’ is related to unlawful termination of pregnancy. However, since the framers of this Code have not explained terms like ‘abortion’, ‘termination’ and ‘ unborn child’ this statute has been left open-ended and viable to being used to justify abortion as a criminal offence.

India’s most prominent legislature on this front is the “Medical Termination of Pregnancy Act, 1971“. Under this law, a woman can terminate her pregnancy by seeking permission from a registered medical practitioner in a hospital established or maintained by the Government. Section 3 of this Act states the grounds for seeking termination, such as health risks, cases where pregnancy arises due to sex crimes and eugenic situations where the child is prone to being deformed or diseased. Termination under any other circumstances is denied, thus, creating a claustrophobic environment for the women. This Act places the decision of abortion completely in the hands of the medical practitioner hence infringing on a women’s right to privacy, health and dignity as enshrined and made fundamentally available under Article 21 of the Indian Constitution.

The loopholes in our laws on this contention are further enhanced and abjectly visible through the conflicting judgments of various Courts on this matter. In the case of “D. Rajeshwari v. State of Tamil Nadu and Others“, the court allowed an unmarried 18 year old girl who was raped, to terminate her pregnancy on the ground that bearing this unwontedly had subjected her to mental illness. The Gujarat High Court however in a similar case involving a pregnant 13 year old, who was  raped by her doctor refused to allow the termination of pregnancy. The presiding Judge justified this by saying that the existing laws do not allow termination of pregnancy after 20 weeks and hence, although what happened was unfortunate, the law must be obeyed.

In 2009, the Supreme Court heard an appeal filed on behalf of a destitute mentally retarded woman who had become pregnant after being raped. The government had approached the Court seeking permission to terminate her pregnancy. An expert body during examinations dubiously held that the woman wanted to continue her pregnancy. The Court hence concluded curiously, that the woman was not ‘mentally ill’ but ‘mentally retarded’ and so her consent was acceptable under the Act. The astonishing part here is the fact that the Court then went on to make many contradictory observations. Firstly, it was held that a woman’s right to make reproductive choices was a part of her ‘personal liberty’ as given under Article 21 of the Indian Constitution. In the very next instance the Court rejected the High Court’s approach of upholding the woman’s consent as determinative and applying the principle of ‘parens patriae’, resumed jurisdiction over her, citing that this was ‘in her best interest’. These differing judgements expose the conflicting notions on this contention, calling urgently for uniformity.

Conclusion

The need of the hour is a perfectly balanced relationship between ensuring the basic rights of the unborn child and that of the mother. Thomas Hobbes, in his social contract theory, rightly remarked, that while it is imperative that every individual have the right to freely decide their own fate without any interference from the government, this cannot be absolute and must be curbed in the greater interest of the humanity.

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