Whether Abortion is Fundamental Right under Article-21 of Indian Constitution
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Shree Rastogi, B.Com LLB 3rd year, SHRI RAMSWAROOP MEMORIAL UNIVERSITY
Now-a-days Abortion has become a very controversial issue all over the world and is one of the subjects that have been discussed at both national and international level. Everybody is in dilemma whether a woman has a right to terminate her pregnancy at any time she wishes or an unborn child has a right to life. Among other rights of women, it is believed that every woman has a right to abortion, it is a universal right. But the rights of the mother are to be balanced with the rights of unborn.
In 1971, abortion was made legal in India when the Medical Termination of Pregnancy Act was passed with an aim to reduce illegal abortion and maternal and morality. In a society which considers sexuality as taboo, the MTP act was a welcome move and a validation of a women’s fundamental right. It also established bodily sovereignty wherein each woman has the sole right to make decisions about what happens to her body.
In the case of Roe v. Wade, (1973), is a landmark decision by the United States Supreme Court on the issue of abortion. It was decided simultaneously with a companion case, Doe v. Bolton. The Court ruled 7-2 that a right to privacy under the Due Process Clause of the 14th Amendment extended to a woman’s decision to have an abortion, but that this right must be balanced against the state’s interests in regulating abortions: protecting women’s health and protecting the potentiality of human life. Arguing that these state interests became stronger over the course of a pregnancy, the Court resolved this balancing test by tying state regulation of abortion to the third trimester of pregnancy and right to abortion comes under right to privacy.
Later, in the case of Planned Parenthod vs Casey (1992), the Court rejected Reo’s trimester framework while affirming its central holding that a woman has a right to abortion until fetal viability. The Roe decision defined “viable” as “potentially able to live outside the mother’s womb, albeit with artificial aid”. Justice Casey acknowledged that viability may occur at 23 or 24 weeks, or sometimes even earlier, in light of medical advances.
So, woman has right to abort until fetal viability and if there is any danger of life of mother or child or both.
Laws Related To Abortion
In Indian Constitution Right to Life has been recognized under Article 21: Protection of Life and Personal Liberty which states “No person shall be deprived of his life and personal liberty except according to procedure established by law”. Among various rights which are available to women, 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.
Section 312 to 316 of Indian Penal Code 1860; it deals with abortion a criminal offence. Section 312 of Indian Penal Code 1860 relates to unlawful termination of pregnancy and permits termination of pregnancy in order to protect the life of the mother. India made Abortion laws liberal on 1971 by enacting MTP Act which was design to create certain exceptions to strict provisions of IPC which declare that all abortions, miscarriage are criminal unless they are undertaken to save the life of a pregnant woman.
Under the Medical Termination of Pregnancy Act, termination of pregnancy can be done only in good faith by registered medical practitioners and in such places as it is required by this act and it permits the termination of pregnancy up to 12 weeks and the opinion of more than two medical practitioners is required if termination of pregnancy is done between 12 and 20 weeks because of many reasons. The word good faith is not defined under this Act. The Act does not permit termination of pregnancy after 20 weeks. It means discretion is in the hand of medical practitioners.
Here IPC and MTP ACT infringes the right to privacy, right to health and right to dignity of a women which has been guaranteed by Article 21. If abortion on demand (in case of rape or for other reasons) is not allowed under safe conditions and is restricted then women will go for unsafe abortion which leads to morality and death of women infringing rights to health and right to live with human dignity. In every way Section3 of MTP Act is violative to Article 14 and 21. Not only is it violative to women rights for abortion but also against each and every unwanted child.
In Rape cases
In rape case, a woman loses her dignity in the society. She has an interest to survive in the society as per with other human being. If abortion is not in demand then she may commit suicide or go for illegal abortion which will affect her health. Written consent of guardian is needed if women is pregnant is unmarried and below 18 years or is mentally unstable. Supreme Court decides whether termination of pregnancy should take place or not only according to law; it only allows termination of pregnancy on the reasonable grounds.
Recently the Supreme Court of India of India allows women to undergo abortion in her 24th week of pregnancy.
In May 2017, another 10-year-old girl from Haryana found herself in a similar situation. Raped by her stepfather, her pregnancy was inconclusively pegged at 18 to 22 weeks when the courts decided to leave the decision of whether it was safe to abort with the Post Graduate Institute of Medical Sciences (PGIMS), the hospital she was admitted at. Doctors at PGIMS decided to terminate the pregnancy.
In June, The Bombay High Court refused a Pune resident’s plea for his 26 week pregnant minor daughter, a rape survivor, to abort her fetus.
Recently, a 10- year-old rape survivor from Chandigarh who was raped by her uncle for months until her parents took her to a hospital after she complained of stomach pain; the case went to the Supreme Court which refused termination of pregnancy as she was 26 week pregnant—beyond the 20th week of pregnancy norm.
In the case of Ashaben VS State of Gujarat [(2015)(4)Crimes 1(Guj.)], it was a rape case where the women was denied termination as she was over 24 weeks pregnant. She was held captive before she could seek termination, the provisions of the Act did not grant her any relief and the judge expressed his inability to grant her remedy.
There are more cases related to abortion of raped victim where Supreme Court denied aborting because of some.
The right to abortion cannot be termed as an absolute right as women cannot opt for abortion until or unless her situation is covered under Section 3 of the MTP ACT. MTP Act does not permit induced abortion on demand. Article21 in itself guarantees the right to life and personal liberty but it also provides a full fleshed exception to the right i.e., procedure established by law. In case of rape pregnancies or a failure of birth control (for married women), the risk to their mental health is admissible grounds for abortion. The premise of keeping the window for abortion open only until 20 weeks; is that, generally, abnormalities can be detected by that time. However, some rare congenital diseases can be detected only after 20 weeks this can intentionally put both the lives of mother and child at risk. Supreme Court allows for abortion only when there is risk of lives (both mother and child); disease caused to child, etc. these types of exceptional cases. The law has to take care of liberty of the mother as well the unborn. As a hospitable community we should seek ways of providing support for lonely and frightened mothers, and for lonely and abandoned babies. We need to offer women with unplanned pregnancies as much love and support as they require and to assist them in finding compassionate alternatives to abortion.
India should make the abortion laws liberal and any law related to abolition of abortion is nothing but a clear violation of women’s right. It violates the women rights to health, right to dignity, right to liberty, and right to privacy. State should take steps to protect the maternal health all the time and unborn child after viability.
I am Shree Rastogi Legal News Reporter from Into Legal World.
(B.Com LLB 3rd year.)