Even after years of evolution and development, women all around the world are still struggling to get their rights recognized, including the most basic ones like health and sanitation. The ability of a woman to produce another life through reproduction is what makes a woman so different from a man. However, do women have the right to decide if they want to reproduce? Although these choices are very personal and intimate to a woman, they undeniably have a public dimension attached along with them. The choice of having or not having a child is not dependent solely on the woman as the society that we live in today plays a large and important role in determining the outcome of these choices.
The World Health Organisation (WHO) defines reproductive rights as –
“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.”
Although the Indian nation was one of the very first countries to grant access to safe and legal abortions and contraception, women and girls are still struggling to bring these policies into practice.
ABORTION AS A FUNDAMENTAL RIGHT
The introduction of abortion-related laws and services in India can be traced back to the times of the “National Family Planning Programme” of 2000. The right to safe and legal abortion not only includes the fundamental right of the mother but also the unborn foetus. The entire process of aborting a child poses an emotional and physical turmoil to the mother not just from her family but also from the State via stringent and inflexible policies and reproductive laws. As being the one who ultimately conceives and gives birth, a woman should have full autonomy over her body, and that autonomy must be free from the influence of the family and the State. In a country where women are seen as mere birth givers to continue the family, the ability to decide whether she wants to give birth or not is just a theoretical concept rather than a practical practice.
As seen with the Medical Termination of Pregnancy Act, 1971, the ultimate decision to abort a child lies with the medical practitioners and not with the mother. The provisions under this act for single women are even more stringent as single women cannot cite “contraceptive failure” as a reason to abortion, thus narrowing the legitimacy of the sexuality of a woman to only marital sexuality.
ABORTION LAWS IN INDIA AND THEIR CONSTITUTIONALITY
- Indian Penal Code, 1860
Sections 312-316 of the Indian Penal Code, 1860 deals with abortion. It considers voluntary abortion by means of miscarriage a criminal offense liable for punishment. Section 312 says –
“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.”
- Medical Termination of Pregnancy Act, 1971
The MTP Act made abortions in India legal, keeping in mind certain restrictions. Section 3(2) of the Actallows abortion up to 12 weeks of pregnancy and abortion anywhere between 12-20 weeks of pregnancy requires the consent of not less than two medical practitioners. Abortion beyond 20 weeks of pregnancy was considered illegal.
However, as per The Medical Termination of Pregnancy (Amendment) Bill, 2020, women can abort up to 24 weeks of pregnancy on the consent of two medical practitioners, and any abortion beyond this prescribed limit is allowed only in cases of foetal abnormalitiesand has to have the consent of the State level Medical Boards.
- Article 21 of the Constitution of India
“No person shall be deprived of his right to life and personal liberty except according to procedure established by law.”
This right includes under its ambit different types of rights ranging from Right to Privacy to Right to Health. Hence, it can be well inferred that the right to health shall also include the right to safe abortions.
In the case of Suchita Srivastava & Another v. Chandigarh Administration (2009), the Hon’ble Supreme Court held that Article 21 of the Constitution allows a woman to make her own reproductive choices, and these choices come under the right of a woman to her “privacy, dignity, and bodily integrity.”
In 2012, a retired High Court Judge, K.S. Puttaswamyfiled a petition in the Supreme Court of India against the Union of India (referred to as the case of Justice K.S.Puttaswamy (Retired). vs Union of India And Ors. (2017)) where he challenged the constitutionality of the AADHAR under charges of violating the right to privacy of an individual before a nine-judge bench of the court.
On 24th August 2017, the court delivered a landmark judgement stating that the Right to Privacy was an intrinsic part of the Right to Life and Personal Liberty guaranteed under Article 21 of the Constitution. Among the various components discussed in the verdict, the Hon’ble Court held that the Right to Privacy includes the reproductive rights of a woman and hence the State shall uphold these rights, including the right to abortion, as fundamental rights of a woman.
ABORTION: PRESENT SCENARIO IN INDIA
Despite India adopting a legal approach to the reproductive rights of women, these policies have merely stayed on paper rather than put into practice. Previous laws and policies on women’s health have focused more on the interests of the State and demography by means of population control as seen under the National Family Planning Programme rather than laying emphasis on the rights and interests of the woman herself. Although the Indian Government has penalized the marriage of girls below the age of 18 years, in practice however, there is still a wide prevalence of child marriages in India, and accounts for approximately 20% of global maternal deaths.
As per data, an average of thirteen women die in India due to unsafe and illegal abortionsand constitute the third biggest cause of maternal deaths in India. The British Medical Journal states that the high prevalence of unsafe abortions in India is a major threat to public health in the long run.The United Nations Human Rights Organisation (UNHRC) has cautioned India on the issue of violation of reproductive rights, and other problems relating to forced female sterilization, child marriage, lack of contraceptive awareness, and sex education.
Thus, keeping in mind the unfulfilling policies of the Government that are driven by a motive of self-interest, the Judiciary needs to play a crucial and pivotal role in upholding the rights of women and girls enshrined under the provisions of the Constitution of India.
As much as abortion in India is a social taboo and a social issue at large, the constitutional and legal aspects of it cannot be ignored. Proper legislations, focusing primarily on women’s health and rights, need to be implemented so that women have the freedom and ability to make choices that affect them both physically and emotionally. Although India has taken steps to improve the health and uphold the rights of women, as seen by The Medical Termination of Pregnancy (Amendment) Bill, 2020 and the Puttaswamy Verdict (2017), there are still major loopholes in the system that needs to be identified and removed. Prioritizing women’s health and their reproductive rights is a step towards upholding the rights and status of the birth-givers in our society.
Author(s) Name: Tamanna Phukan (Symbiosis Law School, Hyderabad)
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Indian Penal Code, 1860, § 312, No. 45, Acts of Parliament, 1860 (India).
INDIA CONST. art. 21.
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