ABORTION

INTRODUCTION
 When a woman is pregnant and wants it to be terminated is called
Abortion. There are two types of abortions one is induced abortion in
which pregnancy is voluntarily terminated by the woman from the
service provider and the second one is spontaneous abortion in
which the process of abortion starts on its own without intervention
and it is also known as miscarriage.
 There are emerging technologies out in the world which is affecting
abortion negatively as well as positively as one of the case is In
April, scientists achieved a major breakthrough that could one day
drastically improve the fate of babies born extremely prematurely.
Eight premature baby lambs spent their last month of development in
an external womb that resembled a high-tech ziplock bag. At the
time, the oldest lamb was nearly a year old, and still seemed to be
developing normally.
ABORTION IN INDIA
1. BEFORE1971
Before 1971 , abortion was criminalized under Section 312 of Indian Penal Code. Abortion
was an offense since then except in the cases it was done to save the life of the woman and it
was punishable for 3 years in prison and fine as well.
2. ABORTION INCIDENCES IN INDIA
As a part of Abortion Assessment Project there was a study that was conducted in India on induced abortion at a
large scale to aware the people about abortion in 2002 and according to this project there are more 6.4 million
cases of abortion in India in a year.
3. MEDICAL TERMINATION OF PREGNANCIES ACT, 1971
This act provides legal framework for legally terminating pregnancies in India. This act provides a condition
for pregnancy that termination of pregnancy can be done within 20 weeks of gestation
4. INDIAN PENAL CODE, 1860
Mainly section 312 and 316 deals with the laws relating to penal abortions .
5. NATIONAL ESTIMATE OF ABORTION IN INDIA
In India study shows that 15.6 million cases are there in a year related to abortion. This was
the case in the year 2015 when the first national study of the incidence of abortion and
unintended pregnancy in India estimated this figure
SURVEY ON ABORTION

 As of 2017, legal abortion by the support of public remains

high as it has been since 2 decades of polling. Currently more
than 50% population says that it should be legal in all or most
of the cases and less than 40% says that it should be illegal.
 According to religious affiliation in 2017, 80% of religiously
unaffiliated Americans say abortion should be legal

 According to age in 2017, 65% of adults under 30 years of
age says it should be legalized and majority of people in the
age of 30s and 40s says the same. And half of the percentage
of people in their 50s and early 60s says the same.
INTERNATIONAL CONVENTIONS AND TREATIES RELATED TO
ABORTION
 INTRODUCTION
In recent years, abortion advocates have sought to advance the idea that international human
rights law contains “right” to abortion and that sovereign nations should amend laws relating the
same. Now most of the UN treaty compliance committee not only subscribe to the fact that
abortion is an integral part of the modern human rights but also contributes in advancing it.
 UN CHARTER
The UN Charter set forth the respect for the principle of sovereignty and stated that “The
Organization is based on the principle of the sovereign equality of all members.” The United
Nations Human Rights Committee has been attempting to redefine an important international
human rights treaty by claiming that the “right to life” means that states should legalize abortion
under expansive terms.
 TREATY LAW
The word “abortion” is not contained in any of the UN treaty and “right to abortion” is not
inferred from the ordinary meaning of the words of such treaty. There are several conventions
and treaties which deals with protecting the unborn child and does not promote right to abortion.
 INTERNATIONAL LAW
The American Convention stated that ‘23 latin American countries in 2013 declares human life
as commencing with conception.abortion becomes legal in some parts of America like in Cuba
in 1965 and in Uruguay in 2012. It is also legal in Mexico City.
DEBATES ON ABORTION
 MPs of Northern Ireland spoken about their experiences of having abortion
in a parliamentary debate on liberalizing abortion laws.
 ABORTION IN DEMOCRATIC SPAIN -There were 229 bills and other
parliamentary initiatives in that period, 60% initiated and led by pro-choice
women. 143 female and 72 male parliamentarians took part in the debates
 In Latin America in 2006, after a decades-long impasse, the highly
controversial issue of abortion came to dominate the political agenda when
Colombia liberalized its abortion law and Nicaragua adopted a total ban on
abortion.
 With the objective to improve access to safe abortion services in India, the
Ministry of Health and Welfare, with approval of the Law Ministry,
published draft amendments of the MTP Act
 In Argentina, Argentina's Parliament has rejected a bill which would have
legalized abortion in the first 14 weeks of pregnancy.
LATEST NEWS ON ABORTION
I. On 21st August, 2018 in Chandigarh a local court directed the medical
board to reject a plea of a 15 year old pregnant rape survivor to abort the
foetus
II. On October 10th, 2018 Pope Francis in Vatican City compared abortion
with contract killing. “Interrupting a pregnancy is like eliminating
someone.”
III. On 18th August, 2018, “by an order of Madras High Court, the medical
termination of pregnancy of a 14 years old girl was performed on Friday
at Mahatma Gandhi Memorial Government Hospital.
IV. On 11th July, 2018, a gynaecologist was arrested in Bikaner for aborting a
foetus of a minor girl illegally in a raid conducted by a team of Health
Department.
V. On 20th September, 2018, in Madurai the district administration has said
that the activities of all scan centres will be monitored strictly after there
was a death of a woman during an abortion.
NATIONAL JUDGEMENTS
 OWN MOTION VS. STATE OF MAHARASHTRA
the case of High Court on its Own Motion v. State of Maharashtra has
explicitly held that the right of a woman to choose to be a mother or not
emerges from her human right to live with dignity which, falls within Article
21 of the Constitution. Courts have further taken steps to prevent maternal
deaths resulting from a lack of access to safe abortion.

 STATE V. RIYAZUDDIN & OTHERS

The Court held that Riyazuddin did perform the surgery and that even if he
had no intent to harm the patient, “the knowledge that as an unqualified
person he was performing surgery which was likely to cause the death of
Sushmita is clearly attributable to Riyazuddin. Hence ingredients of Section
314 IPC are fully satisfied.” The trial court sentenced Riyazuddin to five years'
imprisonment and a fee of Rs. 1 lakh for violations of IPC Section 314 and to
an additional three years' imprisonment for violations of the MTP Act.
INTERNATIONAL JUDGEMENTS
 DOE V. BOLTON
The Supreme Court of U.S. ruled that a woman's right to an abortion could not
be limited by the state if abortion was sought for reasons of maternal health. The
Court defined health as "all factors – physical, emotional, psychological, familial,
and the woman's age – relevant to the well-being of the patient." This health
exception expanded the right to abortion for any reason through all three
trimesters of pregnancy.

 PLANNED PARENTHOOD V. DANFORTH

The Court invalidated broad portions of Missouri’s abortion law including those
which banned abortions by saline injection, required a married woman to obtain
the consent of her husband prior to an abortion, and required consent of parents
before an abortion could be performed on their minor daughter. The court
approved in principle, but without explanation, the need for informed consent.
The law governing abortions is the Medical Termination of Pregnancy Act,
1971 (“MTP Act”). The MTP Act provides that a pregnancy may be
terminated by a registered medical practitioner up to the 20th week of
pregnancy, upon confirmation that the continuation of the pregnancy will
either be a risk to the woman’s life or gravely injurious to her physical or
mental health or if there is substantial risk that the child may have serious
physical or mental abnormalities when born.

Pregnancy caused by rape or due to the failure of contraceptives would

constitute grave mental health injury. Section 5 allows the termination of
pregnancy beyond 20 weeks if it is immediately necessary to save the
woman’s life. In all cases of abortion after 20 weeks that have come before
the Court, the Court constitutes a Medical Board, an expert committee of
medical professionals that produces a Report. The Report addresses whether,
first, the continuation of pregnancy would cause grave physical or mental
injury to the woman and, second, whether the child born would suffer from
any mental or physical disabilities.
 In Mrs. X vs. Union of India, the Supreme Court allowed for the termination
of a 22-week old pregnancy. This was done after a 7 member Medical Board
opined that allowing the pregnancy to continue could gravely endanger the
woman’s physical and mental health. The Court held that “a woman’s right
to make reproductive choices is also a dimension of her ‘personal
liberty’ under Article 21 of the Constitution” and that the right to bodily
integrity allows her to terminate her pregnancy. Similar judgments were
passed by the Supreme Court in other cases where pregnancies were beyond
20 weeks and the fetuses had various medical conditions and anomalies,
resulting in a high risk to the fetus and the mother (Tapasya Umesha Pisal
vs. Union of India [24 weeks]; Meera Santosh Pal vs. Union of India [23
weeks]; Mamta Verma vs. Union of India [25 weeks]). In all these cases the
Supreme Court referred the matters to a Medical Board and gave its decision
based on the opinion of the Medical Board.


 In Murugan Nayakkar vs. Union of India & Ors. W.P. (C) No. 749/2017, the Apex Court allowed the
termination of 32-week old pregnancy of a 13-year-old rape victim holding, “Considering the age
of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is
going through at present and above all the report of the Medical Board constituted by this Court,
we think it appropriate that termination of pregnancy should be allowed.”

 However, in Savita Sachin Patil vs. Union of India the Court rejected termination of a 27-week
pregnancy. The Medical Board gave a finding that there was no physical risk to the mother but the
fetus had severe physical anomalies. The Court then did not permit termination on the ground
based on the Medical Board Report.

 In Alakh Alok Srivastava vs. Union of India W.P. (C) No. 565/2017, where the petitioner was a 10-
year-old pregnant rape victim with a 32-week pregnancy as well the Court did not allow
termination. The Medical Board opined that the continuation of the pregnancy was less
hazardous for the petitioner than termination at that stage. During the course of the proceedings,
the Court asked the Centre to direct setting up of permanent medical boards in states to
expeditiously examine requests for termination post 20 weeks of pregnancy and the Centre issued
instructions for the same.

 Thus we see that the Court’s decisions depend on the recommendations of the Medical Board. It
is the Medical Board’s findings on the continuation and termination of pregnancy, which
becomes the determining factor for the Court, rather than the woman’s reproductive rights.
Roe v. Wade, 410 U.S. 113 (1973),[1] was a landmark decision
of the U.S. Supreme Court in which the Court ruled that the
U.S. Constitution protects a pregnant woman's liberty to
choose to have an abortion without excessive government
restriction. It struck down many U.S. state and federal
abortion laws,[2][3] and prompted an ongoing national
debate in the United States about whether and to what
extent abortion should be legal, who should decide the
legality of abortion, what methods the Supreme Court
should use in constitutional adjudication,The Court
resolved this balancing test by tying state regulation of
abortion to the three trimesters of pregnancy:
The Court classified the right to choose to have an abortion as
"fundamental", which required courts to evaluate challenged
abortion laws under the "strict scrutiny" standard, the
highest level of judicial review in the United States.
In 1992, the Supreme Court revisited and modified its legal
rulings in Roe in the case of Planned Parenthood v. Casey.[11]
In Casey, the Court reaffirmed Roe's holding that a woman's
right to choose to have an abortion is constitutionally
protected, but abandoned Roe's trimester framework in favor
of a standard based on fetal viability, and overruled Roe's
requirement that government regulations on abortion be
subjected to the strict scrutiny standard