CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

HEALTH LAW PROJECT ON:

ABORTION RIGHTS: A GLOBAL PERSPECTIVE

Submitted to- Submitted by-

Mr. Kumar Gaurav
(Law) Fifth year
(tenth semester)

ACKNOWLEDGEMENT

0
The present project on the topic “Abortion rights: a global perspective” has been
able to get its final shape with the support and help of people from various
quarters. My sincere thanks go to all the members without whom the study could
not have come to its present state. I am proud to acknowledge gratitude to the
individuals during my study and without whom the study may not be completed. I
have taken this opportunity to thank those who genuinely helped me.

With immense pleasure, I express my deepest sense of gratitude to Kumar Gaurav

sir, faculty of Health law, Chanakya National Law University for helping me in my
project. I am also thankful to the whole Chanakya National Law University family
that provided me all the material I required for the project.

Not to forget thanking to my parents without the co-operation of which completion

of this project would not had been possible. I have made every effort to
acknowledge credits, but I apologies in advance for any omission that may have
inadvertently taken place.

Last but not least I would like to thank the almighty whose blessings helped me to
complete the project.

THANKYOU

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 CONTENTS

Sl. Topic Pg. No.

No.
1. Introduction 3
2. Research methodology 4
3. Chapter 1: Brief History of Abortion 7
4. Chapter 2: Types and methods of abortion 12
5. Chapter 3: Religious beliefs about abortion 16
6. Chapter 4: Right to abortion within the ambit of reproductive 22
rights
7. Chapter 5: Abortion laws in leading nations 29
8. Chapter 6: Abortion laws in India 37

9. Chapter 7: Abortion in cases of rape and pre marital pregnancies 47

10. Chapter 8: Conclusion-reforms needed in abortion laws of India 49

11. Bibliography 51

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 INTRODUCTION

Abortion is the termination of pregnancy by the removal or expulsion from the uterus of a foetus
or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually
called a miscarriage, or it can be purposely induced. The term abortion most commonly refers to
the induced abortion of a human pregnancy.

In other societies, activists talk about the abortion as something that also involves the ending of a
potential human life. However, here, we do not discuss the issue of women’s reproductive rights
and abortion on terms of pro-life and pro-choice. We don’t talk and argue about the rights of the
mother vis-à-vis those of the unborn baby. In our society, abortion is more of a visceral and
possibly sentimental issue, and the causes leading to abortion are looked down upon as things
that are extremely shameful for a woman, by the so-called moral guardians of the society. Here,
the topic of a case of abortion and the factors leading to it are discussed in a hushed whisper, a
disapproving tone and cluck of the tongue.

In India, the transition from a regime of proscription against abortion by treating it as a criminal
offence liable for punishment under the Indian Penal Code (IPC) to legitimising the practice as a
health and family planning measure through the enactment of the MTP Act of 1971 had been
fairly easy, unlike in the West, where the movement towards legalising abortion has been
tumultuous involving major heated public debates.

To understand the issues surrounding abortion in India, it is necessary to contextualise the

evolution of the MTP Act, which liberalized abortion laws in India. The MTP was enacted two
years before the landmark judgement of the US Supreme Court in Roe v Wade – which held that
laws which criminalise all abortions, except those required to save a mother’s life, were
unconstitutional and violated the right to privacy of a pregnant woman. But this right should be
balanced against the right of the state’s legitimate interest in protecting both the pregnant
woman’s health and the potentiality of human life at various stages of pregnancy.

Before the MTP Act was passed in 1971, abortion under any circumstances, except danger to a
pregnant woman’s life, was illegal in India. Section 312 of the Indian Penal Code (IPC) provides
that “Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be
not caused in good faith for the purpose of saving the life of the woman, be punished with
imprisonment of either description for a term which may extend to three years, or with fine, or
with both; and, if the woman be 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”.

The MTP Act overrides the IPC by allowing a woman to get an abortion within the first 12
weeks of pregnancy, provided a registered medical practitioner diagnoses grave danger to the
pregnant woman’s physical and mental health. If the foetus is between 12 and 20 weeks old, then
the procedure requires permission from two medical practitioners. The Act also allows abortion
if the foetus will be born with severe abnormalities. To determine the risk of physical and mental

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harm to a pregnant woman seeking abortion, the Act takes into account the woman’s actual as
well as reasonably foreseeable environment.

Technically, any woman above the age of 18 can have an abortion with nobody’s consent but her
own and her doctor’s.  However, like several of our laws designed to directly impact the lives of
women in ostensibly positive ways, what is real on paper is not nearly as effective in practice.
Just like other major women centric laws in India, that prohibit pre-natal sex determination,
dowry, women’s education; legislative protection in the field of reproductive and abortion rights
also does not translate to reality.

Where do we draw the line between humane and inhumane, necessitated death and murder?
When does a woman's right over her internal reproductive organs become that of the
government's? Is abortion wrong or is it right? Are rape, incest, and potential fatality to the
mother exceptions when abortion is "ok"?

Aims and objectives

The aim of this research is to study the abortion laws globally and find out whether abortion is a
personal right of a woman or not. In this research abortion has been discussed as a legal issue, as
a social issue and even as an evil in society leading to female foeticide. The question that arises
is that if one admits that she is sad about her abortion then does that mean that abortion is
wrong? Can one be a feminist and Pro-life? If you aren’t sad at all about getting rid of your
pregnancy, can you admit that publicly without being called a monster?

Hypothesis

1. Pre marital abortion is legal as it is the personal choice and freedom of a girl whether she
wants to give birth to a child or not.

2. Illegal abortion is unsafe and in many cases leads to severe health problems and even
death of the woman.

3. Female foeticide can be a disadvantage of legal abortion.

4. Forced abortion is a crime.

5. Abortion is legal in case it affects the health of the woman physically or mentally.

6. Preventing unintended pregnancy and use of contraceptives is fundamental to reducing

abortion rates.

Research method

Both doctrinal and non doctrinal methods of research have been used in this study. The
researcher referred to books and articles dealing with abortion laws worldwide and also went

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through personal interviews and views of some women who have went through the stage of
abortion.

Scope of study

The doctrinal research is on a global perspective where laws related to abortion and pro voices in
many countries have been discussed but due to lack of time and sources the non doctrinal part of
research is done on a local basis focusing on India.

Mode of Citation

A uniform mode of citation has been used by the researcher throughout the project.

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6
 CHAPTER 1: A BRIEF HISTORY OF ABORTION

Abortion is the termination of pregnancy by the removal or expulsion from the uterus of a foetus
or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually
called a miscarriage, or it can be purposely induced. The term abortion most commonly refers to
the induced abortion of a human pregnancy. The word "abortion" comes from the Latin
root aboriri (ab = "off the mark," oriri = "to be born or rise"). Until the 19th century, both
miscarriages and intentional terminations of pregnancies were referred to as abortions.

The written evidence of abortion reflects the interests of class and caste. The Vedic and smriti
laws of India reflect a concern with preserving the male seed of the three upper castes; and the
religious courts imposed various penances for the woman or excommunication for a priest who
provided an abortion. The first recorded evidence of induced abortion is from the Egyptian Ebers
Papyrus in 1550 BCE. Many of the methods employed in early and primitive cultures were non-
surgical. Physical activities like strenuous labor, climbing, paddling, weightlifting, or diving
were a common technique.1 Others included the use of irritant leaves, fasting, bloodletting,
pouring hot water onto the abdomen, and lying on a heated coconut shell.

Induced abortion, according to anthropologists, can be traced to ancient times. There is evidence

to suggest that, historically, pregnancies were terminated through a number of methods,
including the administration of abortifacient herbs, the use of sharpened implements, the
application of abdominal pressure, and other techniques.

The Hippocratic Oath, the chief statement of medical ethics in Ancient Greece, forbade all
doctors from helping to procure an abortion by pessary. Nonetheless, Soranus, a second-century
Greek physician, suggested in his work Gynaecology that women wishing to abort their
pregnancies should engage in violent exercise, energetic jumping, carrying heavy objects, and
riding animals. He also prescribed a number of recipes for herbal baths, pessaries, and
bloodletting, but advised against the use of sharp instruments to induce miscarriage due to the
risk of organ perforation.2 It is also believed that, in addition to using it as a contraceptive, the
ancient Greeks relied upon silphium as an abortifacient. Such folk remedies, however, varied in
effectiveness and were not without risk.

Abortion laws and their enforcement have fluctuated through the various eras. Many early laws
and Church doctrine focused on "quickening," when a fetus began to move on its own, as a way
to differentiate when an abortion became impermissible. In the eighteenth and nineteenth
centuries, various doctors, clerics, and social reformers successfully pushed for an all-out ban on

1
Goerge Devereux, Techniques of abortion, in A Study of Abortion in Primitive Societies, (Literary Licensing, LLC,
2011, ISBN 978-1258131432)
2
Mary R. Lefkowitz and Maureen R. Fant, Women's Life in Greece and Rome: A Source Book in
Translation (Baltimore: Johns Hopkins University Press, 1992).

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abortion. During the twentieth century, abortion became legal in many Western countries, but it
is regularly subjected to legal challenges and restrictions by pro-life groups.3

Prehistory to fifth century

The first recorded evidence of induced abortion is from a Chinese document which records
abortions performed upon royal concubines in China between the years 500 and 515 B.C.E.
According to Chinese folklore, the legendary Emperor Shennong prescribed the use
of mercury to induce abortions nearly 5,000 years ago.4

Abortion, along with infanticide, was well known in the ancient Greco-Roman world. Numerous
methods of abortion were used; the more effective of which were exceedingly dangerous.
Several common methods involved either dosing the pregnant woman with a near-fatal amount
of poison, in order to induce a miscarriage, introducing poison directly into the uterus, or
prodding the uterus with one of a variety of "long needles, hooks, and knives." 5 Unsurprisingly,
these methods often led to the death of the woman as well as the fetus.

Many of the methods employed in early and primitive cultures were non-surgical. Physical

activities like strenuous labor, climbing, paddling, weightlifting, or diving were a common
technique. Others included the use of irritant leaves, fasting, bloodletting, pouring hot water onto
the abdomen, and lying on a heated coconut shell. In primitive cultures, techniques developed
through observation, adaptation of obstetrical methods, and transculturation.

Art from a thirteenth-century illuminated manuscript features a herbalist preparing a concoction

containing pennyroyal for a woman.

3
Frontline, The Last Abortion Clinic, Public Broadcasting Service.
4
Christopher Tietze and Sarah Lewit, Abortion, Scientific American 220 (1969)
5
Rodney Stark, The Rise of Christianity (Princeton, NJ: Princeton University Press, 1996, ISBN 0691027498), 119.

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Fifth to sixteenth centuries
An eighth-century Sanskrit text instructs women wishing to induce an abortion to sit over a pot
of steam or stewed onions.6

The technique of massage abortion, involving the application of pressure to the pregnant
abdomen, has been practiced in Southeast Asia for centuries. One of the bas reliefs decorating
the temple of Angkor Wat in Cambodia, dated circa 1150, depicts a demon performing such an
abortion upon a woman who has been sent to the underworld. This is believed to be the oldest
known visual representation of abortion.7

Japanese documents show records of induced abortion from as early as the twelfth century. It
became much more prevalent during the Edo period, especially among the peasant class, who
were hit hardest by the recurrent famines and high taxation of the age. Statues of the
Boddhisattva Jizo, erected in memory of an abortion, miscarriage, stillbirth, or young childhood
death, began appearing at least as early as 1710 at a temple in Yokohama.8

Physical means of inducing abortion, such as battery, exercise, and tightening the girdle—special
bands were sometimes worn in pregnancy to support the belly—were reported
among English women during the early modern period.9

Seventeenth to nineteenth centuries

Nineteenth-century medicine saw advances in the fields of surgery, anesthesia, and sanitation, in
the same era that doctors with the American Medical Association lobbied for bans on abortion in
the United States and the British Parliament passed the Offences Against the Person Act.

Various methods of abortion were documented regionally in the nineteenth and early twentieth
centuries. After a rash of unexplained miscarriages in Sheffield, England, were attributed to lead
poisoning caused by the metal pipes that fed the city's water supply, a woman confessed to
having used diachylon—a lead-containing plaster—as an abortifacient in 1898.

A well-known example of a Victorian-era abortionist was Madame Restell, or Ann Lohman, who

over a 40-year period illicitly provided both surgical abortion and abortifacient pills in the
northern United States. She began her business in New York during the 1830s, and, by the
1840s, had expanded to include franchises in Boston and Philadelphia.

6
Kathleen London,  The History of Birth Control, The Changing American Family: Historical and Comparative
Perspectives (Yale/New Haven Teachers Institute, 1982).
7
Malcolm Potts and Martha Campbell, History of contraception, Gynecology and Obstetrics 6, Chap. 8 (2002).
8
Anne Page Brookes, Mizuko kuyō  and Japanese Buddhism, Japanese Journal of Religious Studies 8, no. 3–4
(September–December 1981): 119–147.
9
Alan Mcfarlane, Abortion methods in England, 2002.

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Women of Jewish descent in Lower East Side, Manhattan are said to have carried the
ancient Indian practice of sitting over a pot of steam into the early twentieth century. Evelyn
Fisher wrote of how women living in a mining town in Wales during the 1920s used candles
intended for Roman Catholic ceremonies to dilate the cervix in an effort to self-induce abortion.
Similarly, the use of candles and other objects, such as glass rods, penholders, curling irons,
spoons, sticks, knives, and catheters was reported during the nineteenth century in the United
States.10

A paper published in 1870 on the abortion services to be found in Syracuse, New York,
concluded that the method most often practiced there during this time was to flush the inside of
the uterus with injected water. The article's author, Ely Van de Warkle, claimed this procedure
was affordable even to a maid, as a man in town offered it for $10 on an installment plan. Other
prices which nineteenth-century abortionists are reported to have charged were much more steep.
In Great Britain, it could cost from 10 to 50 guineas, or 5 percent of the yearly income of a lower
middle class household.

Māori who lived in New Zealand before or at the time of colonization terminated pregnancies via
miscarriage-inducing drugs, ceremonial methods, and girding of the abdomen with a restrictive
belt.11 They were afraid to practice abortion directly, for fear of Makutu, and so the results of
their efforts were viewed as miscarriages or feticide.

"The Female Abortionist." Madame Restell is portrayed as a villainess in an 1847 copy of

the National Police Gazette.

10
C. R. King, Abortion in nineteenth century America: a conflict between women and their physicians, Women's
Health Issues 2, no. 1 (Spring 1992): 32–39.
11
R. B. Hunton, Maori abortion practices in pre and early European New Zealand, New Zealand Medical Journal 86,
no. 602 (1977): 567–570. 

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Twentieth century
Although prototypes of the modern curette are referred to in ancient texts, the instrument which
is used today was initially designed in France in 1723, but was not applied specifically to a
gynecological purpose until 1842. Dilation and curettage has been practiced since the late
nineteenth century.

The twentieth century saw improvements in abortion technology, increasing its safety, and
reducing its side-effects. Vacuum devices, first described in medical literature in the 1800s,
allowed for the development of suction-aspiration abortion. This method was practiced in
the Soviet Union, Japan, and China, before being introduced to Britain and the United States in
the 1960s. The invention of the Karman cannula, a flexible plastic cannula which replaced earlier
metal models in the 1970s, reduced the occurrence of perforation and made suction-aspiration
methods possible under local anesthesia. In 1971, Lorraine Rothman and Carol Downer,
founding members of the feminist self-help movement, invented the Del-Em, a safe, cheap
suction device that made it possible for people with minimal training to perform early abortions
called menstrual extraction.12

Intact dilation and extraction was developed by James McMahon in 1983. It resembles a
procedure used in the nineteenth century to save a woman's life in cases of obstructed labor, in
which the fetal skull was first punctured with a perforator, then crushed and extracted with a
forceps-like instrument, known as a cranioclast. In 1980, researchers at Roussel Uclaf
in France developed mifepristone, a chemical compound which works as an abortifacient by
blocking hormone action. It was first marketed in France under the trade name Mifegyne in
1988.

CHAPTER 2: TYPES AND METHODS OF ABORTION

12
C. Joffe, Abortion in Historical Perspective, in A Clinician’s Guide to Medical and Surgical Abortion,  (Philadelphia:
Churchill Livingstone, 1999, ISBN 978-0443075292).

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Abortion is the forcible removal of a developing baby from the womb of his or her mother, using
surgical, mechanical, or chemical means. Medical definition holds that abortion is any
termination of pregnancy before 20 weeks. Medically defined, abortion is the "end of a
pregnancy before viability." Therapeutic abortion is the termination of pregnancy via the
intervention of a physician through surgery or the use of RU-486 or some other medications.
Conception is a synonym for fertilization or creation. An embryo is a stage of prenatal
mammalian development which extends from 2 to 8 weeks. Fertilization is the penetration of an
ovum by a single sperm. A foetus is a stage of prenatal mammalian development which extends
from 9 weeks after fertilization. Miscarriage is the interruption of pregnancy prior to the 7th
month, usually used to refer to an expulsion of the foetus which starts without being induced by
medical intervention. About a quarter of all pregnancies end in a miscarriage. An ovum is the
mature sex cell generated by females in an ovary. Trimester is a period lasting nominally 3
months. A human pregnancy is often divided into three trimesters, from fertilization from birth.

There are many methods of abortion nowadays; abortion is the processing stage in termination of
pregnancy. This is really a very private and serious decision that entirely depends on the
pregnant woman. There are 40 % statically estimated of women worldwide had undergo abortion
at some stage in their reproductive lives. This kind of operation is achieved by removing the
embryo and foetus together with the placenta from the uterus of the gravid or pregnant woman.

There are two types of abortion :

1) SPONTANEOUS ABORTION

This kind of miscarriage happens naturally without any medical involvement or other kind of
procedures. 20-25 percent of the pregnant woman estimated result in miscarriage. Among all of
that is more than 90 percent cases determine in the first three months of pregnancy. The
symptoms in this kind of abortion depend on the time on when the miscarriage started.
Spontaneous abortion is also called incomplete abortion, if the uterus remains a part in the whole
of placenta.

A pregnancy that ends earlier than 37 weeks of gestation, if it results in a live-born infant, is

known as a "premature birth." When a fetus dies in the uterus at some point late in gestation,
beginning at about 20 weeks, or during delivery, it is termed a "stillbirth." Premature births and
stillbirths are generally not considered to be miscarriages although usage of these terms can
sometimes overlap.

Most miscarriages occur very early in pregnancy. The risk of spontaneous abortion decreases
sharply after the eighth week. About 10 to 20 percent of known pregnancies end in miscarriage.
However, the number is likely to be much higher because many miscarriages occur so early in
the pregnancy that the woman is not even aware that she was pregnant.13

13
Lennart Nilsson, A Child is Born (Delta, 2004 ISBN 0385337558).

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A spontaneous abortion can also be caused by accidental trauma; intentional trauma to cause
miscarriage is considered an induced abortion. Females who are under 17 years of age and above
35 years old have its quality on having the risk of miscarriage. Biologically, a woman is ready to
have a baby in the age of between 22 to 28 years old. At that age, the risk of spontaneous
abortion decreases after the 10th week of baby’s development.

2) INDUCED ABORTION

This type of abortion is carried out under the supervision of pills and surgical procedures. This
induce abortion is for the physical health in the gravid, it is also well known as beneficial or
therapeutic abortion. Elective abortion is achieved for any other purposes. This kind of procedure
is done by the control of a licensed physician and professionals.

Performing abortion may depend on how far the pregnancy had reached, if a mother has any
medical circumstances that maybe able to affect the processing and or else a woman would like
to stay awake or asleep during the procedures. This would affect the health risk connection with
having a general anaesthetic if a woman is suffering from a bad heart condition and asthma this
may influence on what treatment a woman possibly will have. In every clinic, adjust slowly on
what treatment is available in order for them to discuss the woman options before performing
any treatment.

Various methods of abortion are:

1) MEDICAL ABORTION

This kind of medical abortion can be carried out using medications rather than undergoing
surgery. This kind of practice can be done through the first nine weeks of pregnancy. Usually, a
woman takes a pill during her first visit with the doctor and would probably prevent the chemical
substance produces in the body, which is the fundamental hormone for pregnancy. The reason of
having a lack in chemical substance in the body will make the uterus lining’s thin. In the second
consultation with the doctor, the woman needs to have another kind of medications to take in
order for the uterus to diminish and drive out the tissues. The purpose of the third and last visit to
the doctor is to refer if the medicine had succeeded and all the tissue in the uterus has deflated it
properly. Light bleeding is mutual during performing abortion.

Combined regimens include methotrexate or mifepristone (also known as RU-486), followed by

a prostaglandin (either misoprostol or gemeprost: misoprostol is used in the U.S.; gemeprost is
used in the UK and Sweden). When used within 49 days gestation, approximately 92 percent of
women undergoing medical abortion with a combined regimen completed it without surgical
intervention. Misoprostol can be used alone, but has a lower efficacy rate than combined
regimens. In cases of failure of medical abortion, vacuum or manual aspiration is used to
complete the abortion surgically.

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2) SUCTION ABORTION

This kind of abortion is most commonly used for abortion as it is regularly used only during the
first 12 weeks of pregnancy. In this procedure, this engages in giving the woman anaesthesia,
pursued by enlarging her cervix. A concave tube is slot in to the womb, in which the vacuum is
associated with a stronger vacuum than the regular household vacuum. The surrounding placenta
and foetus are extracted out of the woman and remove.

Manual vacuum aspiration, or MVA abortion, consists of removing the fetus or embryo by

suction using a manual syringe, while the electric vacuum aspiration or EVA abortion method
uses an electric pump. These techniques are comparable, differing in the mechanism used to
apply suction, how early in pregnancy they can be used, and whether cervical dilation is
necessary. MVA, also known as "mini-suction" and menstrual extraction, can be used in very
early pregnancy, and does not require cervical dilation. Surgical techniques are sometimes
referred to as STOP: "Suction (or surgical) Termination Of Pregnancy." From the fifteenth week
until approximately the twenty-sixth week, a dilation and evacuation (D and E) method is used.
D and E consists of opening the cervix of the uterus and emptying it using surgical instruments
and suction.

3) D & C (DILATION AND CURETTAGE)

Dilation and curettage (D and C) is a standard gynecological procedure performed for a variety
of reasons, including examination of the uterine lining for possible malignancy, investigation of
abnormal bleeding, and abortion. Curettage refers to cleaning the walls of the uterus with a
curette.

This type of abortion is commonly used by women who have not yet arrived the 18-week of
pregnancy. This method is generally used when the foetus is detached in some health problem
reasons, frequently after a miscarriage. A woman’s cervix needed to be stretch so the equipment
can suit into the womb. Actually, a doctor is carrying out the abortion so the lining of the uterus
will rubdown to diminish the tissue in the uterus. The tissue is then separate from the womb
through the cervix in using the small suction device.

Other techniques must be used to induce abortion in the third trimester. Premature delivery can
be induced with prostaglandin; this can be coupled with injecting the amniotic fluid with caustic
solutions containing saline or urea. Very late abortions can be induced by intact dilation and
extraction (IDX) (also called intrauterine cranial decompression), which requires surgical
decompression of the fetus's head before evacuation. IDX is sometimes termed "partial-birth
abortion." A hysterotomy abortion, similar to a caesarian section but resulting in a terminated
fetus, can also be used at late stages of pregnancy.

From the twentieth to twenty-third week of gestation, an injection to stop the fetal heart can be
used as the first phase of the surgical abortion procedure.

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Other means of abortion

Historically, a number of herbs reputed to possess abortifacient properties have been used in folk
medicine: tansy, pennyroyal, black cohosh, and the now-extinct silphium. [9] The use of herbs in
such a manner can cause serious—even lethal—side effects, such as multiple organ failure, and
is not recommended by physicians.

Abortion is sometimes attempted by causing trauma to the abdomen. The degree of force, if
severe, can cause serious internal injuries without necessarily succeeding in inducing
miscarriage. Both accidental and deliberate abortions of this kind can be subject to criminal
liability in many countries. In Myanmar, Indonesia, Malaysia, the Philippines, and Thailand,
there is an ancient tradition of attempting abortion through forceful abdominal massage.

Reported methods of unsafe, self-induced abortion include misuse of misoprostol, and insertion
of non-surgical implements such as knitting needles and clothes hangers into the uterus.

CHAPTER 3: RELIGIOUS BELIEFS ABOUT ABORTION

HINDUISM

Hindu medical ethics stem from the principle of ahimsa - of non-violence. When
considering abortion, the Hindu way is to choose the action that will do least harm to all
15
involved: the mother and father, the foetus and society. Hinduism is therefore generally opposed
to abortion except where it is necessary to save the mother's life.

Many Hindus regard the production of offspring as a 'public duty', not simply an 'individual
expression of personal choice'. According to the doctrine of reincarnation a foetus is not
developing into a person, but is a person from a very early stage. It contains a reborn soul and
should be treated appropriately. The Mahabharata refers to a child learning from its father while
in the womb.

Hinduism has traditionally taught that a soul is reincarnated and enters the embryo at the time the
embryo is conceived. According to the Caraka Samhita, a Hindu medical text, the soul is already
joined with matter in the act of conception. The soul is described as descending “…into the
union of semen and (menstrual) blood in the womb in keeping with the (karmically produced)
psychic disposition (of the embryonic matter).” In Rig Veda Samhita Visnu is called “protector
of the child-to-be”, implying that the fetus was deserving of even divine reverence.

The Garbha Upanishad, however, claims that ensoulment takes place in the seventh month, but
this view is not generally part of mainstream Hindu thought.14

In the Hindu context, the purpose of life as a human being is to make progress toward liberation
from rebirth. The most important thing for each soul is the unfolding of its karmic destiny toward
this goal. Abortion can obstruct this unfolding, and therefore it is condemned.

Classical Hindu texts are strongly opposed to abortion:

● one text compares abortion to the killing of a priest

● another text considers abortion a worse sin than killing one's parents

● another text says that a woman who aborts her child will lose her caste15

Traditional Hinduism and many modern Hindus also see abortion as a breach of the duty to
produce children in order to continue the family and produce new members of society. Many
Hindus regard the production of offspring as a 'public duty', not simply an individual expression
of personal choice.16

In practice, however, abortion is practiced in Hindu culture in India, because the religious ban on
abortion is sometimes overruled by the cultural preference for sons. This can lead to abortion to
prevent the birth of girl babies, which is called 'female foeticide'.

ISLAM

14
Available at http://www.hinduhumanrights.info/hindu-religious-quotes-on-abortion/ accessed on 15 April 2017
15
http://www.bbc.co.uk/religion/religions/hinduism/hinduethics/abortion_1.shtml
16
Lipner, The classical Hindu view on abortion and the moral status of the unborn 1989

16
Muslims regard abortion as wrong and haram (forbidden), but many accept that it may be
permitted in certain cases. All schools of Muslim law accept that abortion is permitted if
continuing the pregnancy would put the mother's life in real danger. This is the only reason
accepted for abortion after 120 days of the pregnancy.

Different schools of Muslim law hold different views on whether any other reasons for abortion
are permitted, and at what stage of pregnancy if so. Some schools of Muslim law permit abortion
in the first 16 weeks of pregnancy, while others only permit it in the first 7 weeks.

However, even those scholars who would permit early abortion in certain cases still regard
abortion as wrong, but do not regard it as a punishable wrong. The more advanced the
pregnancy, the greater the wrong.

The Qur'an does not explicitly refer to abortion but offers guidance on related matters. Scholars
accept that this guidance can properly be applied to abortion.

Sanctity of life

The Islamic view is based on the very high priority the faith gives to the sanctity of life. The
Qur'an states:

“Whosoever has spared the life of a soul, it is as though he has spared the life of all people.
Whosoever has killed a soul, it is as though he has murdered all of mankind. Qur'an 5:32”

Most Muslim scholars would say that a foetus in the womb is recognised and protected by Islam
as a human life.

Protection of the mother's life

Islam allows abortion to save the life of the mother because it sees this as the 'lesser of two evils'
and there is a general principle in Sharia (Muslim law) of choosing the lesser of two evils.17

Abortion is regarded as a lesser evil in this case because:

● the mother is the 'originator' of the foetus

● the mother's life is well-established

● the mother has with duties and responsibilities

● the mother is part of a family

● allowing the mother to die would also kill the foetus in most cases

17
Available at https://www.al-islam.org/islamic-edicts-on-family-planning/abortions accessed on 15 April 2017.

17
The Qur'an makes it clear that a foetus must not be aborted because the family fear that they will
not be able to provide for it - they should trust Allah to look after things:

“Kill not your offspring for fear of poverty; it is We who provide for them and for you. Surely,
killing them is a great sin. Qur'an 17:32”

The same (and similar) texts also ban abortion on social or financial grounds relating to the
mother or the rest of the family - e.g. that the pregnancy wasn't planned and a baby will interfere
with the mother's life, education or career.

If it is confirmed in the early period of pregnancy that a foetus suffers from a defect that can't be
treated and that will cause great suffering to the child, a number of scholars would say that it is
permissible to abort, provided that the pregnancy is less than 120 days old.

Islam forbids the termination of a pregnancy after soul or 'Ruh' is given to the foetus.

There's disagreement within Islam as to when this happens. The three main opinions are:

● at 120 days

● at 40 days

● when there is voluntary movement of the foetus. This usually happens during the 12th week
of gestation but many women don't notice the movement until much later - sometimes as late
as 20 weeks.18

However, it's important to note that many scholars believe that life begins at conception, and that
all scholars believe that an embryo deserves respect and protection at all stages of the pregnancy.

CHRISTIANITY

Roman Catholicism

The Catholic Church since the eighteenth century has maintained that life begins at conception,
and therefore intentional abortion is the willful taking of a life. However, the church came to this
position only in modern times, in response to advances in the scientific understanding of life as
beginning at the cellular level, at conception. The traditional Christian position was that the fetus
becomes human only when it receives a soul, which occurs when it begins to take on the shape
of a human being and shows signs of movement—near the end of the first trimester.19 

This view continued to be Church policy into the Middle Ages. The first authoritative collection
of Canon law by John Gratian held that the moral crime of early abortion was not equivalent to

18
Available at http://www.bbc.co.uk/religion/religions/islam/islamethics/abortion_1.shtml accessed on 15 April
2017.
19
Allan D. Fitzgerald (ed.), Augustine through the Ages (Eerdmans, 2009, ISBN 978-0802864796).

18
that of homicide. Pope Innocent III wrote that when "quickening" occurred, abortion
was homicide. Before that, abortion was considered a less serious sin. St. Thomas
Aquinas lumped abortion with contraception and as crimes against nature and sins
against marriage—sins of a different category than murder.

The Roman Catholic Church today firmly holds that "the first right of the human person is his
life and that human life is assumed to begin at fertilization. The current Catholic Code of Canon
Law states "A person who procures a completed abortion incurs a latae
sententiae excommunication."20

The equality of all human life in Catholicism is fundamental and complete, any discrimination is
evil. Therefore, even when a woman's life appears jeopardized, choosing her life over her child's
is no less discrimination between two lives—and therefore morally unacceptable. The Roman
Catholic Church also considers the destruction of any embryo to be equivalent to abortion.

Protestantism

Historically, Fundamentalist Protestant denominations such as the Southern Baptist Convention

supported abortion rights. It was not until 1980 that fundamentalist Protestants began to organize
in opposition to abortion. Today most fundamentalist churches hold that abortion is a form
of infanticide. There is no consensus, however, on whether exceptions can be made if the
mother's life is in danger or when the pregnancy is the result of rape or incest.

Among mainstream Protestants, most Lutherans and Anglicans agree with the Roman Catholic
position. The Methodist Church, Presbyterian Church, United Church of Christ and Episcopal
Church in the USA all take a pro-choice stand.21

The Bible has been invoked to support all sides of the abortion controversy. A text that is
adduced to support the view that fully human life begins at conception is Jeremiah 1:5: "Before I
formed you in the womb I knew you." On the other side, Genesis 2:7 has been used to support
the notion a fetus, while alive in an animal sense, only receives its immortal soul (and thus
becomes fully human) at birth. There is no direct reference to abortion in the New Testament.

JUDAISM

The Torah or Jewish law forbids the taking of innocent life and stresses that human beings are
made in the image of God. Maimonides, a twelfth century interpreter of Jewish law declared: "A
descendent of Noah who kills any human being, even a foetus in its mother's womb, is to be put

20
Vatican, Code of Canon Law. Can. 1398, excommunication of those who procure abortions.
21
Sacred Congregation for the Doctrine of the Faith, Declaration of Procured Abortion.

19
to death." The only exception was if the mother's life was in danger. However, even though
traditional Judaism condemns abortion, there has been considerable argument within the Jewish
community since the 1960s about whether abortion is permissible.22

BUDDHISM

There is no single Buddhist view on abortion:

“...Most Western and Japanese Buddhists come away believing in the permissibility of abortion,
while many other Buddhists believe abortion to be murder.” James Hughes

Buddhists believe that life should not be destroyed, but they regard causing death as morally
wrong only if the death is caused deliberately or by negligence. Traditional Buddhism rejects
abortion because it involves the deliberate destroying of a life. Buddhists regard life as starting at
conception. Modern Buddhists, however, are more divided about the morality of abortion.

Buddhists are expected to take full personal responsibility for everything they do and for the
consequences that follow. The decision to abort is therefore a highly personal one, and one that
requires careful and compassionate exploration of the ethical issues involved, and a willingness
to carry the burden of whatever happens as a result of the decision. The ethical consequences of
the decision will also depend on the motive and intention behind the decision, and the level of
mindfulness with which it was taken.

According to the teachings of Buddha, five conditions must be present to constitute an act of
killing.

● the thing killed must be a living being

● you, the killer, must know or be aware that it is a living being

● you must have the intention to kill it

● there must be an effort to kill

● the being must be killed as the result

There are cases where not having an abortion may result in the birth of a child with medical
conditions that cause it to suffer. Traditional Buddhist thinking does not deal with these cases,
but it has been argued by some Buddhists that if the child would be so severely handicapped that
it would undergo great suffering, abortion is permissible.

The Dalai Lama has said:

22
Available at https://www.spuc.org.uk/abortion/religion accessed on 15 April 2017.

20
“Of course, abortion, from a Buddhist viewpoint, is an act of killing and is negative, generally
speaking. But it depends on the circumstances. If the unborn child will be retarded or if the birth
will create serious problems for the parent, these are cases where there can be an exception. I
think abortion should be approved or disapproved according to each circumstance.”

CHAPTER 4: RIGHT TO ABORTION WITHIN THE AMBIT OF REPRODUCTIVE

RIGHTS

21
Every day, 800 women die due to pregnancy and childbirth-related complications. Some 222
million women in developing countries want to prevent pregnancy but are not using a modern
method of contraception–resulting in 80 million unplanned pregnancies and 20 million unsafe
abortions, with life-threatening consequences. One in three girls under 18 are married without
their consent in low and middle-income countries. Every year, over 16 million adolescent girls
give birth. Meanwhile, maternal mortality is the leading cause of death for this age group in the
developing world. Every day, over 2,000 young people become infected with HIV. As many as 7
in 10 women experience physical and/or sexual violence in their lifetimes. 23 With such an
alarming data we need to go in depth meaning of reproductive rights. Thus, the right to sexual
and reproductive health implies that people are able to enjoy a mutually satisfying and safe
relationship, free from coercion or violence and without fear of infection or pregnancy, and that
they are able to regulate their fertility without adverse or dangerous consequences. Sexual and
reproductive rights provide the framework within which sexual and reproductive well-being can
be achieved.

Concept and meaning

The reproductive rights of women means the right of women to attain the highest standard of
sexual and reproductive health and at the same time achieving full participation in the social and
economic life. Reproductive rights also mean a state of complete physical, mental and social well
being and not merely the absence of disease or infirmity, in all matters and to its processes. It
includes various rights of women such as – right to abortion, right to make her own decision
regarding her body and her reproductive life, right to safe sex, right to procreation and to have
family etc.

The WHO defines reproductive rights as follows:

“Reproductive rights rest on the recognition of the basic right of all couples and individuals to
decide freely and responsibly the number, spacing and timing of their children and to have
information to do so, and right to attain the highest standard of sexual and reproductive health.
They also include the right of all to make decisions concerning reproduction free of
discrimination, coercion and violence.”24

Reproductive right implies that the people are able to have satisfying and safe sex and that they
have capacity to reproduce and the freedom to take decisions as to when and how often to do so.
It also impliedly provides the right to be informed and to have access to safe, effective,
affordable and acceptable methods of family planning of their choice as well as other methods of
their choice for the regulation of fertility and the right to access appropriate health facilities that
23
Available at http://www.icpdtaskforce.org/beyond-2014/policy-recommendations.html Accessed on 20 April
2017.
24
Available at http://reproductiverights.org/sites/crr.civicactions.net/files/documents/RRareHR_final.pdf Accessed
on 20 April 2017.

22
help women to have pregnancy and childbirth in a safe and hygienic condition and also help a
couple to have a healthy child.

Reproductive rights assure equality of relationship between men and women, respect for the
integrity of the person, consent and responsibility for the sexual behavior and its consequences.
Thus, reproductive right is the ability of women to control her body and to enjoy all other rights
including equality of men and women, right to free choice in matters of reproduction and
sexuality and health care.

From the mid-nineteenth century, feminist and social activists advocated for the right to
reproductive choice as a basis of women’s freedom. A reproductive right, no doubt, touches the
sensitive issues of the rights of women and their autonomy. In all the liberal societies
reproductive rights has been recognized as a part of human rights.

Recognition of reproductive rights of woman

The concept of reproductive rights comes from International endeavour. The first time when
reproductive right was clearly mentioned was in Convention on the Elimination of
Discrimination against Women (1979). At Alma Ata Conference in USSR in 1978, primary
health care was exclusively discussed and access to family planning, maternal and child health
care was accepted as basic human rights.

The Final Document of the Teran Conference on Human Rights, 1968, provides the “basic
human right to decide freely and responsibly the number and spacing of children and the right to
adequate education and information in this respect.” The Cairo Program further expanded the
concept of reproductive rights as a state of complete physical, mental and social well- being.”
The infant concept of reproductive rights matured with the Beijing Platform where it was held
that “the reproductive health to women’s rights means to have control over matters relating to
their sexuality free of coercion, discrimination and violence.”

Moreover, the Convention on the Elimination of all Forms of Discrimination against Women
(CEDAW) provides “the obligation to ensure the full development and advancement of women
for the purpose of guaranteeing them the exercise and enjoyment of human rights where men and
women have equal rights”. India is also a signatory country to the International Conference on
Population and Development, 1994, and has determined to establish standards in family planning
services including the right to reproductive autonomy and collective gender equality.

A series of human rights treaties and international conference agreements forged over several
decades by governments increasingly influenced by a growing global movement for women's
rights — provides a legal foundation for ending gender discrimination and gender-based rights
violations. These agreements affirm that women and men have equal rights, and oblige states to
take action against discriminatory practices. The Vienna Declaration and Programme of Action,
the Programme of Action of the International Conference on Population and Development

23
(ICPD) and the Platform for Action adopted at the Fourth World Conference on Women
(FWCW) are international consensus agreements that strongly support gender equality and
women's empowerment. In particular, the ICPD and FWCW documents, drawing on human
rights agreements, clearly articulate the concepts of sexual and reproductive rights. Thus the
reproductive rights were established as a subset of the human rights at the United Nations 1968
international conference on human rights.

The ability of women to control their own fertility is an essential criterion to enjoy all other
rights and lays down the foundation for the equality between men and women. Reproductive
rights include various human rights that have been recognized under different international
instruments. These are as follows-.

1. Right to health, Reproductive health and family planning.

2. Right to decide the number and spacing of children.

3. Right to marry and found a family.

4. Right to be free from gender discrimination.

5. Right to be free from sexual assault and exploitation

6. Right not to be subjected to torture or other cruel, inhuman or degrading treatment.

7. Right to life, liberty and security.

8. Right to privacy

9. Right to modify customs that discriminate against women.

10. Right to enjoy scientific progress and to consent to experimentation.

These rights have clear implications on all aspects of women’s reproductive rights which results
into freedom of choice in matters of sexuality and reproduction. There is no doubt that the
reproductive right is the basic foundation of all other rights of woman and is inalienable and
inseparable from basic human rights. The reproductive rights are directly or indirectly derived
from basic human rights and are the part of human rights.

It is true that without breaking the barriers of cultural values and religious belief the achievement
of reproductive rights as a basic right of women is impossible. The inclusion of reproductive
rights under international human rights is a major gain. But there is still a constant effort to
recognize reproductive rights in domestic scenario. The freedom and progress of women’s status
in the society is not possible without recognizing reproductive rights as basic right of women.

Reproductive Rights as Human Rights

24
Since most existing legally binding international human rights instruments do not explicitly
mention sexual and reproductive rights, a broad coalition of NGOs, civil servants, and experts
working in international organizations have been promoting a reinterpretation of those
instruments to link the realization of the already internationally recognized human rights with the
realization of reproductive rights. An example of this linkage is provided by the 1994 Cairo
Programme of Action25:

"reproductive rights embrace certain human rights that are already recognized in national laws,
international human rights documents and other relevant United Nations consensus documents.
These rights rest on the recognition of the basic right of all couples and individuals to decide
freely and responsibly the number, spacing and timing of their children and to have the
information and means to do so, and the right to attain the highest standard of sexual and
reproductive health. It also includes the right of all to make decisions concerning reproduction
free of discrimination, coercion and violence as expressed in human rights documents. In the
exercise of this right, they should take into account the needs of their living and future children
and their responsibilities towards the community."

Building upon these developments are two new instruments that explicitly recognize women’s
reproductive rights. The Convention on the Rights of Persons with Disabilities (CPRD) is the
first comprehensive international human rights instrument to specifically identify the right to
reproductive and sexual health as a human right. India has ratified CPRD on October1, 2007 and
the contents of the same are binding on our legal system. Reproductive rights have also recently
been incorporated into the international development agenda. With the adoption of the UN
Millennium Development Goals (MDGs) in 2000, governments have agreed that addressing
women’s reproductive health is key to promoting development. In the document produced at the
2005 World Summit, leaders from around the world made an explicit commitment to achieving
universal access to reproductive health by 2015.26

Similarly, Amnesty International has argued that the realisation of reproductive rights is linked
with the realisation of a series of recognised human rights, including the right to health, the right
to freedom from discrimination, the right to privacy, and the right not to be subjected to torture
or ill-treatment. However, not all states have accepted the inclusion of reproductive rights in the
body of internationally recognized human rights. At the Cairo Conference, several states like
UAE, Libya, Kuwait, Peru, Jordan, Iran etc have made formal reservations either to the concept
of reproductive rights or to its specific content.

Human Rights key to Reproductive Rights

1) Right to Life

2) Right to Liberty and security of person

25
Available at http://www.hrln.org/hrln/training-and-development/about-ccri/433.html Accessed on 20 April 2017.
26
United Nations General Assembly, 2005 World Summit Outcome, U.N. Doc A/Res/60/1 (2005)

25
 3) Right to health, including sexual and Reproductive health

4) Right to decide the number and spacing of children

5) Right to consent to marriage and to equality in marriage

6) Right to privacy

7) Right to equality and non-discrimination

8) Right to be Free from practices that harm Women and girls

9) Right to not be subjected to torture or other cruel, inhuman, or degrading treatment or

punishment

10) Right to be Free from sexual and gender-Based violence

11) Right to access sexual and Reproductive health education and Family planning
information

12) Right to enjoy the benefits of scientific progress

Reproductive rights also includes the right to abortion, in Roe v. Wade the Court created a right
to abortion based on much more than bodily concerns:

“Specific and direct harm medically diagnosable even in early pregnancy may be involved.
Maternity, or additional offspring, may force upon the woman a distressful life and future.
Psychological harm may be imminent. Mental and physical health may be taxed by child care.
There is also the distress, for all concerned, associated with the unwanted child, and there is the
problem of bringing a child into a family already unable, psychologically and otherwise, to care
for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed
motherhood may be involved.”

India’s Perspective on Reproductive Rights

The Indian perspective on reproductive rights has had to additionally take account of several
other inequalities and contradictions in society. In a situation where women have no ‘right’ to
clean drinking water, basic facilities, health care or education; where society decides where
women will live, how they will live (and often, how they will die), who they will marry, whether

26
they will study; where the State (and international development and aid agencies) believe they
have the ‘right’ to determine how many children women will bear, when they will get sterilised
and what form of contraception women must ‘opt’ for.

It is apparent that the struggle for Indian women’s reproductive rights needs to go further than
reproductive freedom, and enter the arena of social, economic and political rights. Though India
is a signatory to the CEDAW and, has committed itself to ethical and professional standards in
family planning services, including the right to personal reproductive autonomy and collective
gender equality. Indian policies and laws so far seem to reflect this understanding, at least on
paper.

The National Population Policy, 2000, affirms the right to voluntary and informed choice in
matters related to contraception. The legislations are Maternity Benefit Act, 1961 (No. 53 of
1961), Medical Termination of Pregnancy Act, 1971 (No.34 of 1971), Pre-Conception and Pre-
Natal Diagnostic Techniques (Prohibition of Sex Selection) 1994 (No. 57 of 1994), Infant Milk
Substitutes, Feeding Bottles and Infant Foods (Regulation of Production Supply and
Distribution) Act, 1992 (No.41 of 1992) etc.

Under the Indian Constitution the Reproductive Rights can be dealt under Article 14(Equality
before Law), Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth), Article 21 (Protection of life and personal liberty), and Article 42(Provision for
just and humane conditions of work and maternity relief).

In the case of Laxmi Mandal vs Deen Dayal Hari Nager Hospital & Ors27Justice Muralidhar
instructed the State of Haryana, to pay compensation of Rs 2.4 lakhs to the family of Shanti Devi
who passed away during child birth. The Court found the Respondents in violation of Shanti
Devi's right to life and health, reiterating that her death was preventable.

In the case of Jaitun v Maternity Home, MCD, Jangpura & Ors W.P. No. 10700/2009 High
Court directed the Municipal Corporation of Delhi and Government of National Capital Territory
of Delhi to pay Rs 50,000 compensation to Fatima for the violation of her fundamental rights by
being compelled to give birth to her daughter under a tree, on account of the denial of basic
medical services.

Justice Muralidhar said "These petitions are essentially about the protection and enforcement of
the basic, fundamental and human right to life under Article 21 of the Constitution. These
petitions focus on two inalienable survival rights that form part of the right to life: the right to
health (which would include the right to access and receive a minimum standard of treatment and
care in public health facilities) and in particular the reproductive rights of the mother.”28

27
172(2010)DLT9
28
Available at http://hrlnindia.blogspot.in/2010/06/hrln-gets-remarkable-judgement-in-case.html Accessed on 20
April 2017.

27
The famous case of Suchita Srivastava and Anr.Vs.Chandigarh Administration29 held that a
woman's right to make reproductive choices is also a dimension of 'personal liberty' as
understood under Article 21 of the Constitution of India. It is important to recognise that
reproductive choices can be exercised to procreate as well as to abstain from procreating. The
crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be
respected. This means that there should be no restriction whatsoever on the exercise of
reproductive choices such as a woman's right to refuse participation in sexual activity or
alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to
choose birth-control methods such as undergoing sterilisation procedures. Taken to their logical
conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full
term, to give birth and to subsequently raise children. However, in the case of pregnant women
there is also a 'compelling state interest' in protecting the life of the prospective child. Therefore,
the termination of a pregnancy is only permitted when the conditions specified in the applicable
statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as
reasonable restrictions that have been placed on the exercise of reproductive choices.

This case was reaffirmed in Delhi High Court in X (Assumed name of the prosecutrix) Vs.The
State (N.C.T. of Delhi) and Ors30. The reproductive right of humans should be treated as a basic
right. For instance,in B. K. Parthasarthi v. Government of Andhra Pradesh31, the High Court
upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy”
and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma,
which characterised the right to reproduce as “one of the basic civil rights of man”.

CHAPTER 5: ANALYSIS OF ABORTION LAWS IN LEADING NATIONS

AMERICAN DEBATE OF PRO-LIFE V. PRO-CHOICE

In the United States, abortion laws began to appear in the 1820s, forbidding abortion after the
fourth month of pregnancy. Through the efforts primarily of physicians, the American Medical

29
AIR2010 SC 235
30
2013(2) JCC 1068
31
1999 (5) ALT 715

28
Association, and legislators, most abortions in the US had been outlawed by 1900. Illegal
abortions were still frequent, though they became less frequent during the reign of the Comstock
Law which essentially banned birth control information and devices.

Some early feminists, like Susan B. Anthony, wrote against abortion. They opposed abortion
which at the time was an unsafe medical procedure for women, endangering their health and life.
These feminists believed that only the achievement of women's equality and freedom would end
the need for abortion. They wrote that prevention was more important than punishment, and
blamed circumstances, laws and the men they believed drove women to abortions. 32 Later
feminists defended safe and effective birth control -- when that became available -- as another
way to prevent abortion.

By 1965, all fifty states banned abortion, with some exceptions which varied by state: to save the
life of the mother, in cases of rape or incest, or if the fetus was deformed. Groups like the
National Abortion Rights Action League and the Clergy Consultation Service on Abortion
worked to liberalize anti-abortion laws.

The terms "pro-life" and "pro-choice" generally boil down to whether an individual thinks
abortion should be banned or if it's acceptable. But there's more to the debate than that. Let's
briefly explore what the central arguments are about.

The Pro-Life Issue Spectrum

Someone who is "pro-life" believes that the government has an obligation to preserve all human
life, regardless of intent, viability or quality-of-life concerns. A comprehensive pro-life ethic,
such as that proposed by the Roman Catholic Church, prohibits:

● Abortion 

● Euthanasia and assisted suicide 

● The death penalty 

● War, with very few exceptions

In cases where the pro-life ethic conflicts with personal autonomy, as in the case of abortion and
assisted suicide, it is considered conservative. In cases where the pro-life ethic conflicts with
government policy, as in the case of the death penalty and war, it's said to be liberal.

The Pro-Choice Issue Spectrum

Individuals who are "pro-choice" believe that individuals have unlimited autonomy with respect
to their own reproductive systems, as long as they don't breach the autonomy of others. A
comprehensive pro-choice position asserts that all of the following must remain legal:
32
Available at https://www.thoughtco.com/history-of-abortion-3528243 Accessed on 20 April 2017.

29
 ● Celibacy and abstinence 

● Contraception use 

● Emergency contraception use 

● Abortion

● Childbirth

Under the Federal Abortion Ban passed by passed by Congress and signed into law in 2003,
abortion becomes illegal under most circumstances in the second trimester of pregnancy, even if
the mother's health is in danger. Individual states also have their own laws, some banning
abortion after 20 weeks and most restricting late-term abortions. 

The pro-choice position is perceived as "pro-abortion" in the U.S. The purpose of the pro-choice
movement is to ensure that all choices remain legal.

Point of Conflict

The pro-life and pro-choice movements primarily come into conflict on the issue of abortion.
The pro-life movement argues that even a non-viable, undeveloped human life is sacred and
must be protected by the government. 33 Abortion must not be legal according to this model, nor
should it be practiced on an illegal basis.

The pro-choice movement argues that in pregnancies prior to the point of viability – a point at
which the fetus cannot live outside the womb –the government does not have the right to impede
a woman's decision to terminate the pregnancy. The pro-life and pro-choice movements overlap
to an extent in that they share the goal of reducing the number of abortions. They differ with
respect to degree and methodology.

What politicians on both sides of the debate generally fail to acknowledge is the religious nature
of the conflict. If one believes that an immortal soul is implanted at the moment of conception,
and if "personhood" is determined by the presence of that immortal soul, then there is effectively
no difference between terminating a week-old pregnancy or killing a living, breathing person.
Some members of the pro-life movement do acknowledge that there exists a difference in intent.
Abortion would be, at worst, involuntary manslaughter rather than murder, but the consequences
– the ultimate death of a human being – are regarded by many pro-lifers in much the same way.

The pro-life vs. pro-choice debate tends to overlook the fact that the vast majority of women who
have abortions do not do so by choice, at least not entirely. 34 Circumstances put them in a
position where abortion is the least self-destructive option available. According to a
33
Available at http://www.debate.org/opinions/pro-life-yes-vs-pro-choice-no Accessed on 2 May, 2017.
34
Available at http://www.medicaldaily.com/abortion-debate-needs-change-instead-pro-life-vs-pro-choice-lets-
be-pro-women-316136 Accessed on 2 May, 2017.

30
study conducted by the Guttmacher Institute, 73 percent of women who had abortions in
the United States in 2004 said that they could not afford to have children.35

The most effective forms of birth control – even if used correctly – were only 90 percent
effective 30 years ago. Redundant prophylactics can reduce the odds of pregnancy these days to
those of being struck by a meteor. The option of emergency contraception is available if those
safeguards fail. Numerous advancements in birth control technology can reduce unplanned
pregnancies even more going forward.

ROE V. WADE

Abortion has been performed for thousands of years, and in every society that has been studied.
It was legal in the United States from the time the earliest settlers arrived. At the time the
Constitution was adopted, abortions before “quickening” were openly advertised and commonly
performed.

In the mid-to-late 1800s states began passing laws that made abortion illegal. The motivations
for anti-abortion laws varied from state to state. One of the reasons included fears that the
population would be dominated by the children of newly arriving immigrants, whose birth rates
were higher than those of “native” Anglo-Saxon women.

Medical Practice Before Roe v. Wade

During the 1800s, all surgical procedures, including abortion, were extremely risky. Hospitals
were not common, antiseptics were unknown, and even the most respected doctors had only
primitive medical educations. Without today’s current technology, maternal and infant mortality
rates during childbirth were extraordinarily high. The dangers from abortion were similar to the
dangers from other surgeries that were not outlawed.

As scientific methods began to dominate medical practice, and technologies were developed to
prevent infection, medical care on the whole became much safer and more effective. But by this
time, the vast majority of women who needed abortions had no choice but to get them from
illegal practitioners without these medical advances at their disposal. The “back alley” abortion
remained a dangerous, often deadly procedure, while areas of legally sanctioned medicine
improved dramatically.

The strongest force behind the drive to criminalize abortion was the attempt by doctors to
establish for themselves exclusive rights to practice medicine. They wanted to prevent
“untrained” practitioners, including midwives, apothecaries, and homeopaths, from competing
with them for patients and for patient fees.

The best way to accomplish their goal was to eliminate one of the principle procedures that kept
these competitors in business. Rather than openly admitting to such motivations, the newly
35
Available at https://www.thoughtco.com/pro-life-vs-pro-choice-721108 Accessed on 2 May, 2017.

31
formed American Medical Association (AMA) argued that abortion was both immoral and
dangerous. By 1910 all but one state had criminalized abortion except where necessary, in a
doctor’s judgment, to save the woman’s life.36 In this way, legal abortion was successfully
transformed into a “physicians-only” practice.

The prohibition of legal abortion from the 1880s until 1973 came under the same anti-obscenity
or Comstock laws that prohibited the dissemination of birth control information and services.
Criminalization of abortion did not reduce the numbers of women who sought abortions. In the
years before Roe v. Wade, the estimates of illegal abortions ranged as high as 1.2 million per
year.37 Although accurate records could not be kept, it is known that between the 1880s and
1973, many thousands of women were harmed as a result of illegal abortion.

Many women died or suffered serious medical problems after attempting to self-induce their
abortions or going to untrained practitioners who performed abortions with primitive methods or
in unsanitary conditions. During this time, hospital emergency room staff treated thousands of
women who either died or were suffering terrible effects of abortions provided without adequate
skill and care.

Some women were able to obtain relatively safer, although still illegal, abortions from private
doctors. This practice remained prevalent for the first half of the twentieth century. The rate of
reported abortions then began to decline, partly because doctors faced increased scrutiny from
their peers and hospital administrators concerned about the legality of their operations.

Between 1967 and 1973 one-third of the states liberalized or repealed their criminal abortion
laws. However, the right to have an abortion in all states was only made available to American
women in 1973 when the Supreme Court struck down the remaining restrictive state laws with
its ruling in Roe v. Wade.

Case Summary

Roe v. Wade38, legal case in which the U.S. Supreme Court on January 22, 1973, ruled (7–2) that
unduly restrictive state regulation of abortion is unconstitutional. In a majority opinion written
by Justice Harry A. Blackmun, the court held that a set of Texas statutes criminalizing abortion
in most instances violated a woman’s constitutional right of privacy, which it found to
be implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment (“…
nor shall any state deprive any person of life, liberty, or property, without due process of law”).

The case began in 1970 when “Jane Roe”—a fictional name used to protect the identity of the
plaintiff, Norma McCorvey—instituted federal action against Henry Wade, the district attorney
36
Available at https://prochoice.org/education-and-advocacy/about-abortion/history-of-abortion/ Accessed on 2
May, 2017.
37
Tietze C, Henshaw SK. Induced Abortion: A World Review, 1986. New York: The Guttmacher Institute, 1986

38
410 U.S. 113 (1973)

32
of Dallas county, Texas, where Roe resided. The Supreme Court disagreed with Roe’s assertion
of an absolute right to terminate pregnancy in any way and at any time and attempted to balance
a woman’s right of privacy with a state’s interest in regulating abortion.

In his opinion, Blackmun noted that only a “compelling state interest” justifies regulations
limiting “fundamental rights” such as privacy and that legislators must therefore draw statutes
narrowly “to express only the legitimate state interests at stake.”39 The court then attempted to
balance the state’s distinct compelling interests in the health of pregnant women and in the
potential life of fetuses. It placed the point after which a state’s compelling interest in the
pregnant woman’s health would allow it to regulate abortion “at approximately the end of the
first trimester” of pregnancy. With regard to the fetus, the court located that point at “capability
of meaningful life outside the mother’s womb,” or viability.

In his dissent in Roe, Justice Rehnquist differed with the majority on a number of points. For one
thing, McCorvey had given birth in 1970 and had given her child up for adoption. He argued that
because McCorvey was no longer in the first term of her pregnancy, indeed was no longer
pregnant, when her case came before the Supreme Court, the case had become hypothetical
rather than actual and therefore outside the jurisdiction of the Court. Rehnquist also argued that
the regulation of abortion should be left to the states and that the right of privacy had nothing to
do with the case. 

Repeated challenges since 1973 narrowed the scope of Roe v. Wade but did not overturn it.
In Planned Parenthood of Southeastern Pennsylvania v. Casey40, the Supreme Court established
that restrictions on abortion are unconstitutional if they place an “undue burden” on a woman
seeking an abortion before the fetus is viable.

The Roe decision has largely been perceived as a victory for the abortion reform and women's
rights movements and a defeat for antiabortion forces, but in many ways it was a compromise
between the two sides. While antiabortion forces were unhappy with the establishment of a right
to abortion for women in the first trimester of pregnancy, pro-abortion groups were displeased
with the limits on abortion allowed in the last two trimesters of pregnancy.

The Court also compromised in its decision as to when life begins and who is to be defined as a
person with full rights under the Constitution. It did not agree with the pro-abortion movement,
which declared that life does not begin until birth, or with the antiabortion movement, which
maintained that life begins at conception.41 Instead, it chose to define the rights of the fetus as
emerging when it reaches the stage of viability, when it can survive independently outside the

39
Available at https://www.britannica.com/event/Roe-v-Wade Accessed on 2 May, 2017.
40
505 U.S. 833 (1992)
41
http://www.encyclopedia.com/social-sciences-and-law/law/court-cases/roe-v-wade

33
womb. In making this decision, some have argued, the Court made personhood subject to
change, particularly as science has moved the time of viability further back.

Feminists and women's rights advocates saw Roe as a vindication of women's reproductive rights
and a step toward greater equality between the sexes. Such equality, they argued, can happen
only when women have the ability to control reproduction. Others, opposed to the decision
in Roe, believed that the Supreme Court had overstepped its bounds by effectively making new
social policy, a task they felt was better left to elected members of state legislatures. Still others
felt that the Court had violated the sanctity of human life by permitting abortion. In any
case, Roe has been a far-reaching decision, affecting many spheres of U.S. life, including
medicine, religion, and the family.

The reaction to Roe was swift. Supporters of legal abortion rejoiced and generally felt their battle
was won. However, others faulted the Court for the decision. Those opposed to legal abortion
immediately began working to prevent any federal or state funding for abortion and to undermine
or limit the effect of the decision.

Some turned to measures directly aimed at disrupting clinics where abortions were being
provided. Their tactics have included demonstrating in front of abortion clinics, harassing people
trying to enter, vandalizing clinic property, and blocking access to clinics. As time passed,
the level of anti-abortion violence escalated. Increasingly, clinic bombings, physical attacks, and
even murders endanger abortion providers and create a hostile environment for women seeking
abortions.

Initially, the framework of Roe v. Wade was the basis by which the constitutionality of state
abortion laws was determined. In recent years, however, the Supreme Court has begun to allow
more restrictions on abortion. Many states now have restrictions in place such as parental
involvement, mandatory waiting periods, and biased counseling.

Abortion Laws in UK

Abortion is legal in Britain up to 24 weeks under the Abortion Act 1967. After that, it is illegal
unless there is a substantial risk to the woman’s life or foetal abnormalities. Before the act was
introduced, abortion was a crime under the Offences Against the Person Act (OAPA) 1861. This
made it a crime for a woman to ‘procure a miscarriage’, or for another person to help her do so.
But when the Abortion Act was introduced, abortion was made legal if it is performed by a
doctor, is authorised by two doctors and one (or more) of the following grounds are met:

1) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the
pregnancy would involve a greater risk than if the pregnancy were terminated, of injury to the
physical or mental health of the pregnant woman or any existing children of her family

34
2) that the termination is necessary to prevent permanent injury to the physical or mental health
of the pregnant woman

3) that there is a substantial risk that if the child were born it would suffer from such physical or
mental abnormalities as to be seriously handicapped.

The laws are different in Northern Ireland, where abortions are limited. Section 1 (2) of the
Abortion Act states that doctors may take the pregnant woman’s social and financial
circumstances into consideration when deciding whether to permit the termination of a
pregnancy. Within that, they have some degree of discretion in deciding who may have an
abortion. The law doesn’t state they have to take the woman’s environment into account but that
they ‘may’ do so. For example in some cases, the woman’s financial and social circumstances
could have an impact on the woman’s health if she continued with the pregnancy so it must be
considered.

Abortion laws in Asian countries

China
Abortion is virtually freely available in China, and there are no defined time limits for access to
the procedure. Although sex-selective abortion is prohibited, critics say that China’s one-child-
per-family policy encourages the widespread abortion of female fetuses by couples intent on
having a son. Today in China there are an estimated 120 boys born for every 100 girls. Human-
rights groups have long accused the Chinese government of condoning mandatory abortions as a
means of controlling population growth. The practice is believed to be less common today than it
was in the 1980s and early 1990s, when the one-child policy was more strictly enforced.

Japan
Japan’s Eugenic Protection Law, passed in 1948, promoted liberal policies on abortion and
sterilization with the intent of fostering a genetically healthy population. In 1996, new legislation
omitted all references to eugenics and established regulations making abortion legal within the
first 24 weeks of pregnancy to save the mother’s life or to protect her physical health. Abortion is
also allowed in cases of rape and for economic or social reasons.

Philippines
Abortion has been illegal in the Philippines since 1930, when it was first criminalized. The only
acceptable reason for an abortion is when the mother’s life is in danger, in which case permission
for the abortion must be obtained from a board of medical professionals. The 1975 Child and
Youth Welfare Code established that a person has inherent dignity from the moment of
conception. The Constitution of 1987 reinforces this ruling, requiring that the state “equally
protect the life of the mother and the life of the unborn from conception.”

35
36
 CHAPTER 6: ABORTION LAWS IN INDIA

Induced abortion is legally defined as an untimely delivery voluntarily procured with intent to
destory the foetus. It may be procured at any time before the natural birth of the child. However,
in medical terminology abortion means untimely delivery of a child before it is viable. A child is
considered as viable from the twenty eighth week of pregnancy.42

Right to Abortion as a Fundamental Right Under the Constitution

The right to life is a very broad concept and is the most fundamental of all. In India, right to life
has been recognized under Article 21 of the Constitution which says that “No person shall be
deprived of his life and personal liberty except according to procedure established by law.”
Person here includes both man and woman. Among various rights which are available to a
woman, the right to abortion is also believed to be one of the most essential and fundamental
right.

Right to abortion has been recognized under right to privacy which is a part of right to personal
liberty and which emanates from right to life. But the question always arises whether an unborn
child should be considered as a human being and be given the protection of right to life. The
medical termination of pregnancy act tries to balance these two conflicting rights of the mother
and the unborn.

Provisions Under The Indian Penal Code, 1860

The Indian Penal Code 1860 (hereinafter referred to as the Code) which is the basic criminal law
of the country, keeping in view the religious moral social and ethical background of the Indian
community, made induced abortion a criminal offence, under Sections 312 to 316 of the Code.43

Section 312 reads: Causing miscarriage — Whoever voluntarily causes a woman with child to
miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life
of the woman, be punished with imprisonment of either description for a term which may extend
to three years, or with fine, or with both and if the woman be 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.

Explanation — A woman who causes herself to miscarry, is within the meaning of this section.

It is important to note that the framers of the Code have carefully avoided use of the word
'abortion' in Section 312, which relates to an unlawful termination of pregnancy. This was
perhaps done with a view to avoiding injury to sentiments of the tradition bound Indian
community. The section speaks of 'miscarriage' only, which term has no where been defined in

42
Paul and Schopp, Abortion and the Law in 1980, 25 Nyl. Sch. L. Rev. 497 at pp. 500-502 1980
43
Indian Penal Code 1860, Ss. 312 to 316.

37
the Code. However, miscarriage, in its popular sense, is synonym with abortion, and means
expulsion of the immature foetus at any time before it reaches full growth.44

Miscarriage technically refers to spontaneous abortion, whereas voluntarily causing miscarriage,

which constitutes an offence under the Code, stands for criminal abortion. Section 312 makes
voluntarily causing miscarriage an offence in two situation, namely, when a woman is with child
and quick with child. As per judicial interpretation, a woman is considered to be in the former
situation as soon as gestation begins, and is in the latter situation when the motion is felt by the
mother.

In other words, quickening is a perception by the mother that movement of the foetus has started.
It obviously refers to an advanced stage of pregnancy. Taking into account the nature and gravity
of the offence in the latter case, the section has prescribed punishment in the form of
imprisonment of either description which may extend to seven years and fine, whereas in the
former punishment may go up to three years of imprisonment or fine or with both depending
upon the nature of the offence in question.

The explanation clause appended to Section 312 makes it clear that the offender could be a
woman herself or any other person. As early as 1886 a woman was charged for causing herself to
miscarry, though she had been pregnant for only one month, and there was nothing which could
be called as a 'foetus' or 'child'. The lower court acquitted the woman taking a lenient view of the
matter. But the High Court held the acquittal bad in law emphasising that it was the absolute duty
of a prospective mother to protect her infant from the very moment of conception.

A person who aids and facilitates a miscarriage is liable for the abetment of the offence of
miscarriage under Section 312, read with Section 109 of the Code, even though the abortion did
not take place.45 A person is also liable for attempt to commit a criminal abortion under Section
312 read with Section 511, even if he fails in his endeavour.

For instance, in Queen Empress v. Arunia Bewa46, where the term of pregnancy was almost
complete, and an attempted abortion resulted in the birth of the child a conviction under Section
312 was set aside and one under Section 511 for attempt to bring about miscarriage was
maintained.

Section 312 permits abortion only on therapeutic (medical) grounds in order to protect the life of
the mother. That is to say, the unborn child, must not be destroyed except for the purpose of
preserving the yet more precious life of the mother. The provision by implication recognises the
foetus' right of life.47 The threat to life, however, need not be imminent or certain. If the act is

44
In Re Malayara Secthus, A.I.R. 1955 Mys. 27
45
Indian Penal Code 1860, S. 108, explanation 2.
46
(1873) 19 W.R. (Cr.) 230.
47
Bonda, The impact of Contitutional Law on the Protection of Unborn Human Life. Some Comparative Remarks, 6
Human Rights 223 at pp. 234, 235 (1977 ) .

38
done in good faith48, the person is entitled to the protection of law. But good faith is deceptive
and ambiguous enough to protect most therapeutic abortions so long as they are conducted
ostensibly to preserve the mother's life. In fact, what constitutes good faith is not a question of
law, but of fact to be decided in each and every case according to the facts and circumstances.

Inadequacy of Law to Protect Illegal Abortions

A careful perusal of the legal provisions would reveal that the law of abortion in India, till
passing of the Medical Termination of Pregnancy Act 1971, was very strict. It had been
honoured more in breach than in observance,49 It was estimated that before its enactment, as
many as five million induced abortions were carried out in India every year, of which more than
three million were illegal,50 but perhaps not even one per cent prosecutions and successful
convictions had been taken.

It is said that approximately one seventh of women who become pregnant in India every year
resort to back street abortions at the hands of inexperienced and unqualified persons, such as
quacks, and paramedical personnel, like nurses, midwives, in strict secrecy to avoid the horror of
law, through a variety of crude and unhygienic methods for paltry sums of money ranging from
rupees 5 to 300, with all the risks of morbidity and mortality. 51 At times greedy doctors exploit
helpless victims of pregnancy by extorting a huge amount of money for procuring abortions. The
rigidity of the legal provisions in seeking abortions was also responsible to a great extent for a
number of crimes, such as suicide by pregnant mothers, infanticides abandonment of and cruelty
to children." A study concluded by some eminent scholars revealed that 3.5 to 4 per cent of total
deaths of women are due to complications arising out of abortions.52

One of the difficulties, rather factors, that has resulted in lack of prosecutions and successful
convictions of abortion offences, has been the obtaining of adequate evidence to prove the fact of
pregnancy and its termination in a court of law. It is only a medical examination soon after the
termination of pregnancy that can reveal the fact of pregnancy and its termination. As per the
Criminal Procedure Code of 1898 which was in vogue till 1973, an accused could not be
compelled to submit to a medical examination. And a woman who happened to be an accused
would never submit to it. However, under the Code of 1973, the prosecuting agency can compel
a woman suspected of an -offence to undergo medical examination.

48
Section 52, I.P.C. defines good faith as, "nothing is said to be done or believed in good faith which is done or
believed without the due care and attention".
49
K. P. Bahadur, Population Crisis in India (1977), pp. 165-169.
50
N. R. Madhava Menon, Population Policy, Law Enforcement and the Liberalisation of Abortion : A Socio Legal
Inquiry into the Implementation of the Abortion Law in India, 16 J.I.L.I. 626 at 632- 33 (1974)
51
Asit K. Bose, Abortion in India : A Legal Study, 16 J.I.L.1. 535 (1974).
52
K. N. Rao, Abortion and Family Planning, International Conference on Family Planning, 12-16 March 1972, New
Delhi.

39
Another important factor responsible for lack of adequate and proper appreciation of the law
enforcement authorities in such cases is the non-cognisable nature of offences relating to illegal
abortions. A police officer can neither arrest an accused without a warrant, nor investigate the
alleged offence of miscarriage without the order of an authorised magistrate. Such a complicated
procedure involves a lot of exercise on the part of the police which generally they would avoid
due to obvious reasons.

Since the police according to law are under no obligation to investigate a non cognisable offence,
they would prefer not to investigate such cases and invite work for themselves. Again the illegal
abortions generally do take place in strict secrecy in connivance with the interested parties and
the doctors, who would never divulge such information. At times it is practically impossible for
the police even to know of such offences. The law was merely a dead horse.

Steps to Liberalise Abortion Laws

It may be noted that though the provisions relating to abortions contained in Sections 312 to 316
of the Code had been in existence in the statute book for more than a century but were hardly
implemented, and though there had been enlightened public men, doctors, social workers and
social scientists who advocated reforms now and then, the changed attitude towards a liberalised
law of abortion really came about only during the sixties when the idea was mooted by the
Central Planning Board of the Government of India in 1964 as a family planning Measure The
Government of India, in 1964 constituted a committee under the chairmanship of Shanti Lai
Shah to study the question of liberalisation of the then existing law of abortion, and to suggest
measures for reform in the strict provisions of the Codes which makes all abortions or
miscarriage punishable under Section 312, unless undertaken to save the life of the woman.

The committee submitted a comprehensive report suggesting various situations justifying

terminatton of pregnancy under law. It was of the view that this should be allowed not for saving
the life of the pregnant woman, but also to avoid grave injury to her physical or mental health.
The government of India accepted the recommendations of the committee and brought forth in
1970 in Parliament the Medical Termination of Pregnancy Bill setting forth various situations
under which pregnancy might be lawfully terminated.

The Bill was eventually passed in August 1971 as the Medical Termination of Pregnancy Act
1971 (M.T.P.A.), which came into operation on 1 April 1972 after the government framed rules
for its implementation as required under Section 7 of the Act. Though the bill could be passed in
Parliament without any strong opposition, since the then Congress Party in power enjoyed a two-
third majority in both Houses of Parliament, yet out of eleven different political parties and
groups in Parliament only four i.e. (i) Government officials (ii) All India Women's Conference,
(iii) Congress Party, and (iv) Communist Party of India, had a positive attitude towards the Act.
On the other hand, four groups, viz, (a) Muslim sections, (b) Jan Sangh, (c) Communist Party-
Marxist (C.P.M.) and (d) Kerala Congress had a negative attitude and opposed the bill. National

40
Federation of Indian Women and Swatantra Party did not take any stand. The medical profession
was divided, 75 per cent supporting the bill and 25 per cent opposing it.53

Medical Termination of Pregnancy Act, 1971

The Medical Termination of Pregnancy Act 1971, consists of only eight sections and is a
landmark in the history of social legislation in India. It will go a long way towards encouraging
women to play a role outside home, in achieving the goal of economic independence and in
emancipating them from the age old economic exploitation by men folk. Autonomy and
independence of a woman is directly as well as closely related to her ability to decide for herself
whether she wishes to bear and rear the child or not.

The inability to decide freely and responsibly on the spacing of children has, in turn, deprived
many women of the advantages of health, education and employment and their roles in family,
public and cultural lives on equal footing with men. This right and opportunity to fully
participate is an element of human dignity and respect recognised in a number of international
human rights agreements and covenants.

The object of the Act, besides the elimination of the high incidence of illegal abortions, is
perhaps to confer on the woman the right to privacy, which includes the right to space and limit
pregnancies, and the right to decide about her own body. 54 Another important feature of the Act
is to encourage a reduction in the rate of population growth by permitting termination of an
unwanted pregnancy of a married woman on the ground that a contraceptive device failed.55

Grounds for Termination of Pregnancy:

Section 3 of the Act, which is the operative part, lays down the conditions under which a
pregnancy may be terminated by registered medical practitioners. A careful perusal of this
section reveals that it has modified the strict provisions of the law of abortion as contained under
Section 312 of the Code by permitting abortion in a number of situations.

The section inter alia, envisages that the termination of a pregnancy by a registered medical
practitioner is not an offence, if the pregnancy involves:

● a risk to life of a pregnant woman, or

● a risk of grave injury to her physical or mental health, or
● if the pregnancy is caused by rape, or
● there exists a substantial risk that, if the child were born, it would suffer from some physical
or mental abnormalities so as to be seriously handicapped, or

53
Savithri Chattopadhyay, 'Medical Termination of Pregnancy Act, 1971: A Study of the Legislative Process', 16 549
at 563- 64 (1974).
54
H. L. v. Matheson, 450 U.S. 398 (1980).
55
Gazette of India, 17 Nov. 1969 pt. 11 s. 2 p. 880, for statement of objects and reasons of the M.T.P. Bill 1969,

41
● failure of any device or method used by the married couple for the purpose of limiting the
number of children, or
● risk to the health of the pregnant woman by reason of her actual or reasonably forseeable
environment.

Section 4 prescribes that the termination of pregnancy must take place according to the
provisions of the Act and, that it must be performed in (i) a hospital established or maintained by
the government, or (ii) a place for the time being approved for the purpose of the Act by the
government.

But in case of an emergency where the termination of pregnancy is, according to medical
opinion, immediately necessary to save the life of the pregnant woman the literal compliance of
the provisions of Sub-section (2) of Section 3 and Section 4 would not apply.56

Section 6 of the Act empowers the Central Government to make rules to carry out the provisions
of the Act for its implementation, and Section 8 gives legal protection to doctors with regard to
action taken in good faith for the purposes of termination of pregnancy. Section 7(3) of the Act
makes wilful contravention of any regulations made by the government in respect of
implementation of the Act punishable with fine which may extend to one thousand rupees.

Qualification of Doctors:

According to the Act, 'a medical practitioner who possess any recognized medical qualification
as defined in cl. (h) of Sec.2 of the Indian Medical Council Act, 1956 whose name has been
entered in a state medical register and who has such experience or training in gynecology or
obstetrics as may be prescribed by rules made under this Act is permitted to conduct the
termination of pregnancy'. Allopathic doctors who are duly registered with the State Medical
Council are authorized to do abortion. Other like homeopathic, ayurvedic, unani doctors and
unqualified doctors like RMP, Quacks, et al are not entitled to perform abortion.

Even among allopathic doctors, only those who satisfy one or the other of the following
qualifications are eligible to do MTP. Once a doctor satisfies the require qualifications, he
automatically becomes eligible to do abortions. He need not apply for eligibility to any authority.
A doctor cannot refuse to do abortions on religious grounds. If he does so, his name is liable to
be erased from the Medical Council. If he is a Govt. doctor, he is liable for departmental action.

Consent for Abortion:

Section 3(4) of MTPA clarifies as to whose consent would be necessary for termination of
pregnancy.

56
M.T.P. Act 1971, S. 5.

42
(a) No pregnancy of a woman, who has not attained the age of 18 years, or who having attained
the age of 18 years, is a lunatic, shall be terminated except with the consent in writing of her
guardian.

(b) Save as otherwise provided in cl (a), no pregnancy shall be terminated except with the
consent of the pregnant woman.

It is important to note, in this section, that the consent of the woman is the essential factor for
termination of her pregnancy. The husband's consent is irrelevant. Therefore, if the woman wants
an abortion but her husband's objects to it, the abortion can still be done. However, if the woman
does not wants an abortion but her husband wants, it cannot be done. However, the consent of
the guardians is needed in the case of minors or lunatics.

Where the pregnancy can be terminated:

Section 4 specifies the place where, under MTP, a pregnancy can be terminated. It stipulates that
an operation must take place in either "a hospital established or maintained by the government"
or in "a place which has been approved for the purpose of this Act by the government." However
exceptions are made for emergencies. Under section 5(1), a doctor may terminate a pregnancy if
it is "immediately necessary to save the life of the pregnant woman".

In such situations, the requisites relating to the length of pregnancy, the need for two medical
opinions and the venue for operation do not apply. However, it needs to be pointed out that one
aspect of this emergency clause tends to restricts rather than liberalize the old law. Section 312
of the IPC permitted abortions by anyone with the object of saving the life of the mother, but
under MTPA only a doctor can terminate the pregnancy.

Approval of a Place:

No place shall be approved under Cl (b) of sec.4

(1) Unless the Government is satisfied that termination of pregnancy may be done therein under
safe and hygienic conditions.

(2) Unless the following facilities are provided therein namely:

i. An operation table and instruments for performing abdominal gynecological surgery

ii. Anesthetic equipment, resuscitation equipment and sterilization equipment

iii. Drugs and parental fluids for emergency use.

43
Sex Selective Abortion and PreNatal Diagnostic Techniques (Regulation and Prevention of
Misuse) (PNDT) Act, 1994

Sex selective abortion is of grave social concern. It is unethical and illegal too. Social and family
pressures are such that inspite of legislation pregnant woman does opt for prenatal sex
determination for selective female feticide. We must realize that selective feticide challenges
equality of sex and status of women. Failure to recognize equality of sex is the sign of ageing
and decaying society.

The results of the 2001 census set alarm bells ringing amongst policy planners and leaders alike.
Punjab, with a child sex ratio of 793, was forced to acknowledge the situation and take corrective
steps. Responding to the declining sex ratio as a social problem, the Akal Takht the highest seat
of spiritual and temporal authority amongst Sikhs issued a hukumnama (diktat) on April 6, 2001,
prohibiting prenatal sex determination and threatening violators with social boycott and
excommunication. On its part, the Punjab health department set in motion various awareness
campaigns to counter the menace.

Unimpressed, the Supreme Court in May directed all states, particularly Punjab, to show their
commitment to the issue by implementing the PreNatal Diagnostic Techniques (Regulation and
Prevention of Misuse) (PNDT) Act, 1994. In their writ petition, activist Sabu George, CEHAT
(Center for Enquiry into Health and Allied Themes) and MASUM (Mahila Sarvangeen Utkarsh
Mandal) had asked for the implementation of existing legislation banning prenatal sex selection
and also an amendment of the law to include newer sex selection techniques. With states still
dragging their feet, the Supreme Court issued another order in December demanding proof that
state governments were serious about implementation of the PNDT Act. In a flurry of activity,
the Punjab government registered 14 cases over the next few months.

Ironically, it is women themselves who are being further victimized in the zeal to implement the
Act. Says Veena Sharma, Chandigarh based lawyer with the Human Rights Law Network
(HRLN), "A woman who aborted a five months foetus following a sex determination test was
picked up by the police, even as she was bleeding profusely, and imprisoned along with her sister
in law."

In this case, the doctor who performed the ultrasound is absconding. In fact, he has been granted
anticipatory bail while the hapless woman has no recourse to justice since the Public Prosecutor
takes no interest in her case. It is the HRLN that is now supporting the woman while the case
drags on. The involvement of the police only contributes to corruption, since the persons running
the ultrasound centers get prior information and either wind up operations or run away from the
scene. In fact, the police need not enter the picture at all, since the PNDT Act provides for an
'Appropriate Authority' to implement the law.

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Other misguided measures taken by the government include putting the onus on pregnant women
rather than focusing on medical practitioners, the major culprits. For instance, an April news
report titled "Pregnant women beware, Big Brother's watching", quotes Director (Health) Dr
DPS Sandhu saying that all pregnant women in Punjab who already have two daughters will be
placed under observation. If such a woman undergoes an abortion, she will have to satisfy the
health authorities about the reasons for this. Women's health activists are up in arms about this,
terming it a violation of fundamental reproductive rights and access to abortion.

That it is possible to stem the problem at the level of the medical practitioners, who provide the
tests, has been amply demonstrated in Haryana, which also has a low child sex ratio of 820. The
focus here has rightly been on unscrupulous and commercial minded doctors and not on the
women who are themselves victims of family pressures, says Manmohan Sharma of the
Voluntary Health Association of Punjab, pointing out that Punjab could learn from the Haryana
experience.

Dr BS Dahiya who, in his capacity as Civil Surgeon in Faridabad, functioned as the Appropriate
Authority under the PNDT Act, notes: "Doctors have forgotten their ethics, and are organized in
a gangster like mafia, making about Rs 20,000 (1 US$=Rs49) per day in commissions from
ultrasonographers." Dahiya, with his rapid action teams of decoy women patients and
audiovisual documenting of evidence, has been at the forefront of nabbing doctors caught
violating the PNDT Act. He managed to confiscate equipment, delicense several prominent
doctors in Faridabad, Ballabgarh and Palwal and shut down their lucrative businesses. For his
pains, Dahiya has been shunted out as the Director of Health Services, Haryana ostensibly on a
promotion, but in effect getting him out of the direct implementation of the Act.

Private doctors seem to be the main culprits in Punjab as well. Unless they are stopped, sex
determination will continue. Experts also blame the population control policy with its undue
emphasis on the two child norm. Says Dr Mira Shiva, Head of Public Policy Division of the
Voluntary Health Association of India: "The proposed disincentives such as denying the third
child a ration card or enrolment in a government school, and denying the parents government
jobs would further encourage the practice of sex determination."

Researcher Dr Sabu George, one of the petitioners in the Supreme Court case quotes the China
example to bolster the point. "Demographers have found that small families work against girls.
In China, where sex selection was encouraged for 20 years as a measure of population control,
the scarcity of girls is so acute now that in 2000, China had to pass a law to tackle the growing
problem of abduction of young women!"

With demographic projections estimating that there will be 40 per cent 'missing girls' in Punjab
in the forthcoming generation, officials are getting panicky. Harjeet Taneja, the District Program
Officer claims that the government is doing its best to raise awareness about the evil of sex
determination and female foeticide.

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As for the Akal Takht's hukumnama, one year down the line, the diktat seems to have had little
impact. Religious diktats cannot make a difference when girls have a secondary status in society,
say the village leaders. And as with the other steps to tackle the problem, the hukumnama is
aimed more at the Sikh public than at the Sikh doctors who carry out sex determination tests.

Punjab is the most obvious example that economic development does not necessarily lead to
betterment in women's status. The state with one of the highest per capita incomes in the country
at Rs 18,862, has a much lower sex ratio as compared with less 'developed' Bihar which has a per
capita income of only Rs 5531, but a sex ratio of 921.Unless there are material changes in
women's status, it is unlikely that slogans and diktats will change the situation for girls, the fast
disappearing species in Punjab.

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 CHAPTER 7: ISSUE OF ABORTION IN RAPE CASES AND PREMARITAL
PREGNANCIES

Recently, the Supreme Court permitted a rape survivor to terminate her pregnancy at 24 weeks,
which is beyond the permissible 20 weeks limit prescribed under the Medical Termination of
Pregnancy Act, 1971.57 Their grounds were that continuing the pregnancy could greatly endanger
her physical and mental health. In this instance, the Supreme Court directed the members of the
appointed medical board to examine the petitioner and the viability of the pregnancy. The board
found that the foetus had multiple congenital anomalies and the severity of these anomalies
posed a grave risk to the physical and mental health of the petitioner. Therefore, the medical
board recommended that the petitioner be allowed to not continue the pregnancy. Based on these
recommendations, the Supreme Court granted the petitioner permission to terminate her
pregnancy.

This is not the first time that the Supreme Court has permitted a woman to abort a foetus older
than 20 weeks. In 2015, the apex court overturned a decision by the Gujarat high court in a
similar case. The Gujarat high court had denied permission to a 14 year old rape survivor to abort
her 25week old foetus. Interestingly, while delivering its verdict, the high court acknowledged
the adverse physical, emotional and psychological implications of the decision on the petitioner’s
life, but ultimately chose to subscribe to the law. The girl then approached the Supreme Court,
which recommended that a medical panel examine the girl and decide whether the termination of
pregnancy was in her best interests; if the panel was in favour of the abortion, then the girl could
go ahead with the termination.

In 2008, the Bombay high court denied a woman, whose foetus had been diagnosed with a
congenital heart defect, permission to abort her 26 week foetus. The petitioners argued against
the constitutionality of section 5 of the MTP Act – which permits abortion beyond 20 weeks only
if it is necessary to save the life of the pregnant woman. The petitioners argued that since the
20week law includes a provision to terminate a pregnancy if a foetus has severe abnormalities,
the same provision should apply if the foetus is over 20 weeks old. However, the high court
rejected this argument and held that it was not empowered to read down section 5 as it would
virtually amount to usurping the power of the legislature. Therefore, on a plain and strict reading
of the MTP Act, the court held that abortion on the ground of severe abnormalities of the foetus
was only permissible within 20 weeks. As there was no risk to the life of the pregnant woman,
the court denied the petitioners the right to abort the foetus.

Similarly, in 2015, the Punjab and Haryana high court denied a 13 year old rape survivor
permission to terminate her 25-26 week old foetus. More recently in R v Haryana, the Punjab
and Haryana high court did not grant the petitioner, also a rape survivor, permission to terminate
her pregnancy as the commissioned medical report did not agree to an abortion. However, by
57
Availableathttp://indianexpress.com/article/india/indianewsindia/scallowsallegedrapevictimtoterminatepregnan
cypostmandated20weeks2934646/ Accessed on 2 May, 2017

47
way of abundant caution, the court requested doctors from AIIMS, the premier medical
institution in the country, to reassess the possibility of terminating the pregnancy. The doctors
were instructed to take the decision in good faith and in the best interest of the petitioner.
However, the petitioner delivered a healthy baby over the course of these lengthy proceedings.
Interestingly, the court also directed the Centre to make necessary amendments to the MTP Act –
to clearly stipulate that doctors will not be unnecessarily prosecuted if they

The Medical Termination of Pregnancy Act does not mention anything about a woman’s right to
terminate a pregnancy beyond 20 weeks if there are foetal abnormalities. Additionally, the MTP
Act as it currently stands also does not permit abortion solely on the request of a woman. One
important reason for this is to prevent and reduce the instances of female foeticide in the country.
However, it is important to analyse and study whether the law has had the desired impact on
female foeticide, especially in light of the PreNatal Diagnostic Techniques (Regulation and
Misuse) Act, 1994 which prohibits sex selection and prescribes strict punishment for both – the
party seeking prenatal sex determination as well as the medical practitioner conducting the test.

If the pregnant woman has not attained the age of 18, or if she is a lunatic, the statute allows a
surrogate decision to be taken by the guardian. This was found to be not inviolable by the
Madras High Court in V. Krishnan v. G. Rajan alias Madipu Rajan and The Inspector of Police
when a Division Bench of the Madras High Court considered the case of a minor girl who
married an adult man without her family’s consent and got pregnant. Her father approached the
High Court for permission to abort, and the High Court ruled after eliciting the desire of the
pregnant girl that she was capable of understanding the world as well as the consequences of the
pregnancy. The court said that if termination of pregnancy was to be ordered against the girl’s
will, it would harm her mental health and might also affect her physical health. The court
asserted that it was her fundamental right to have a child having become pregnant.

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 CHAPTER 8: CONCLUSION: REFORMS NEEDED IN ABORTION LAWS OF INDIA

Evidently, there are divergent and conflicting case laws when it comes to the issue aborting a
foetus beyond the stipulated 20 week period. There is also the important issue of a woman’s right
to her body, as it is limited under the current laws. The Ministry of Health and Family Welfare
proposed some amendments to the MTP in October 2014 which addressed these issues to a
limited extent. One of the draft amendments proposed to increase the time period within which
abortion may be carried out from 20 weeks to 24 weeks. Recognising a woman’s agency over
her body, the draft amendments have proposed that within the first 12 weeks, an abortion may be
carried out by a registered doctor at the request of a pregnant woman, without the opinion of a
registered doctor.

Another amendment stated that aborting a foetus between 12 and 24 weeks, if a medical
practitioner deems it necessary, should be conducted on the same grounds as provided under the
current MTP Act. The draft amendment also permitted abortion beyond the stipulated 24 weeks,
in case the foetus suffers from substantial foetal abnormalities. Notably, the amendment also
recognises the growing reality of sexually active single unmarried women and provides that
single woman can seek an abortion within the stipulated time period if it can be established that
the pregnancy was unplanned and a result of contraceptive failure. The current MTP Act only
accounts for sexually active married women.

If the draft amendments had been incorporated into the Act, then the petitioner in the recent
Supreme Court case as well as many other women could have been saved the mental and
physical anguish of knocking on different courts’ doors. The decision to terminate a pregnancy is
never an easy or mechanical decision and it takes a severe toll on the affected parties, especially
the woman. There is a need to strike a balance between the rights of women to control their
bodies and the legitimate interests of the state to prevent selective sex determination as well as
protect the interests of the woman and the unborn foetus. The draft amendments offer a definitive
step in the right direction.

In 2014, six years after the famous Niketa Mehta case, the Union Health Ministry drafted the
Medical Termination of Pregnancy (Amendment) Bill, 2014, which aimed at allowing abortions
after 20 weeks under special circumstances.

According to the draft law, the decision to allow abortion between 20 and 24 weeks can be taken
“in good faith” by a healthcare provider if, among other conditions, the pregnancy involves
substantial risks to the mother or child, or if it is “alleged by the pregnant woman to have been
caused by rape”. 

The revision of a law set more than 45 years back was long overdue but the state of healthcare in
India is such that like all other health Bills, this has been sitting in the Parliament from over two
years now. There are no hopes of it being tabled for a discussion anytime soon, either.

49
Again, why should a child born with disability be eliminated without devising an inclusive
approach of dignity to even a child with disabilities? In Germany, the law permits abortion after
mandatory counselling and a three-day waiting period. Rather than criminalizing abortion,
German law focusses on counselling, employment security, social welfare, and financial support
to persuade pregnant women to give birth to their children. In this way, German law successfully
achieves some degree of protection for the unborn by obtaining voluntary recognition of personal
responsibility and respect for the personhood of the unborn. Shall we give greater emphasis to
counselling instead of rushing through a law liberalising abortion?

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 BIBLIOGRAPHY

BOOKS REFERRED

Tulsi Patel (ed) Sex Selective Abotion in India ( Sage Publication New Delhi 1st Edition (2007)

Shruti Pandey (ed) Coercion vs. Empowerment (CombatLaw Publication Pvt. Ltd New Delhi 1st
Publication (2006).

Johanna Schoane, Abortion After Roe, (University of North Carolina Press, 2015)

Patricia Miller, Good Catholics: The Battle over Abortion in the Catholic Church, (University of
Carolina Press, 2014)

Jeanne Flavin, Our Bodies, Our Crimes: The Policing of Women's Reproduction in America,
(New York University Press, 2009)

WEBSITES REFERRED

● http://nhrc.nic.in/documents/LibDoc/Reproductive_Rights_A.pdf
● http://nhrc.nic.in/documents/LibDoc/Reproductive_Rights_C.pdf
● http://cogprints.org/7794/1/2011-1-9.pdf
● http://www.icw.org/files/SRH%20rights.pdf
● http://www.hrln.org/hrln/training-and-development/about-ccri/433.html
● http://reproductiverights.org/sites/crr.civicactions.net/files/documents/RRareHR_final.pdf
● http://www.amnestyusa.org/our-work/issues/women-s-rights/women-s-health-sexual-and-
reproductive-rights
● http://www.hrln.org/hrln/training-and-development/about-ccri/435.html
● http://lawcommissionofindia.nic.in/reports/report228.pdf
● https://sites.google.com/site/saheliorgsite/health/reproductive-rights-in-the-indian-context
● http://www.legalserviceindia.com/articles/gen_j.htm
● http://lawprofessors.typepad.com/reproductive_rights/
● http://www.icpdtaskforce.org/beyond-2014/policy-recommendations.html
● http://truth-out.org/news/item/11349-the-widespread-war-on-reproductive-rights
● www.manupatra.com
● The Human Rights: Conventions and Indian Law- By U.N. Gupta

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