Legalizing abortion in India

by admin on November 28, 2010

Legalizing abortion in India

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Home Page > Law > Health and Safety > Legalizing abortion in India

Legalizing abortion in India

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Posted: Nov 27, 2010 |Comments: 0


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Legalizing abortion in India

By: Chhavi Agarwal

About the Author

Author for the above article is Chhavi Agarwal. I am a 3rd year student of Hidayatullah National Law University, Raipur (C.G).

(ArticlesBase SC #3743169)

Article Source: abortion in India


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To this entire lot of abortion controversies lie in 3 basic questions to be answered. Firstly, is this human life? The answer to this is clear and lucid and their can be no diverse belief to challenge. Secondly, should the legislature grant equal rights to every class of living being in the nation? Thirdly, Should we allow discrimination or enact a different set of laws to be implemented against an entire class of living/maturing/developing humans? The third question is all about choice and rights to women. Before we move on discussing about the above arguments their is one more concern which needs to be looked upon i.e. Abortions ARE legalized in India already by Medical Termination of Pregnancy Act, what is time demanding is more of awareness among the masses, whose repercussions create more problems, and amends to the legislation.  It is legalized already long back but what is opposed, is particular kinds of abortion, or making abortions more accessible may backfire. Not legalizing would backfire even more robustly with a result of incessantly increasing maternal mortality rates.


To understand what illegal abortions are we need to understand the act and the procedure in detail. In the past, and even now in the backward areas of the nation women uses knitting needles and coat hangers to abort which not only damages the body organs but also higher the risks of infection and other diseases and even a risk of infertility. Alternate methods used are douching with lye, ingesting chemicals, punching the abdomen hard enough and consuming several herbs like pennyroyal, black cohosh and tansy which may have serious side effects causing multiple organ failure and death. But the question is what is legalized and what dimensions it needs to absorb.  The MTP act makes the following legal:

(1)   When the pregnancy is of 12weeks and if it exceed but less than 20weeks, with the advice of 2 medical practitioners can terminate if (a) women’ life is in danger physically or mentally including pregnancy by rapes. (b) if there is a risk that t he child will be born with abnormalities or if pregnancy is unwanted due to failure of any contraceptive

(2)   Pregnancy of a girl less than 18 or 18 who is mentally ill with the consent of the guardian.

(3)   Informed consent is a must

(4)   Abortion should be performed by an authorized medical practitioner and place.

(5)   If to save the life spontaneous abortion is necessary

The above listed sections have numerous defects and loopholes. It includes mentally ill women below 18 and mentally sound women above 18. What about the girls below 18 totally sound? Non inclusion of this group leads to dangerous outcomes like suicides or any form of illegal abortions leading to deaths in many cases as a law wont change the decision of not telling their parents and resorting to illegality. According to the act women can get abortion by their wish but what about the will and wish of the spouses?  Shouldn’t provisions be inserted against specific techniques of abortion? Shouldn’t the act ban sale on contraceptives like I pills which has many side effects including loss of fertility?  In addition to this, when a defect is detected in the child there should be no time limit for abortion, it should be allowed as it is not fair either for the child or the parents to give the birth. Hence, the above changes should be made to the sections of the act to enhance its capacity to reduce illegal abortions. Moreover, Abortions by sex determination is illegal but what about the women’ mental condition if she borne a 3rd girl child!?! Shouldn’t she allow sex determination for at least the 3rd child? And what about the clause for surrogate mothers… what if she has to abort the child after 22 weeks if there is some relationship problem with the hired parents?

It’s said in the act that “Unwanted pregnancy” should be terminated if it causes anguish to the parents. Now, this is vast term to be defined. Every couple or every lady who comes for abortion is because that’s an unwanted pregnancy, it means every abortion should be made legal because it results in mental and physical distress.


The question is not when does life begin, but when does a person begin?” Dr. David Menton, from the video “Fearfully & wonderfully made.”

Going back to the basic question of determining life, we can say that when the fetus has the ability to survive outside the mothers’ womb without life support is life i.e. the concept of viability.In the case of Planned Parenthood v Caseytried to address the issue of viability by inserting language recognizing that some fetuses never attain viability (Ex: child with brain disorder) but then isn’t it better to abort a disabled child which will give mental injury to the parents later?


The landmark illustration is of Nikita Mehta. The court rejected her plea for abortion of her 24 week old fetus when the doctors said the child suffers from a congenital heart blockage and misplacement of arteries. But how fair it is to born a child needs a pacemaker to survive right from the time of birth. Isn’t this contrary to the clause which allows abortion when it sure the fetus suffers from some disability? The surgery of the child would take a more than a lack and Nikita Mehta is a middle class lady. Did the court think how she pays..Or the Govt. will pay for her or the judge who gave such a senseless decision will pay? Looking into abortions laws of different countries like Canada, Korea, china, Germany, France and several European countries, we can conclude that Indian law is a bit stringent. Canada does not interfere into this matter leaving everything upon the women and her physician. Korea permits it till 24 weeks and The Abortion Act of UK permits abortion till 24 weeks but there is no upper limit if pregnancy poses a threat to a woman’s life of it the fetus is likely to be born with severe physical or mental deformity. But India has chosen a middle path and a balanced law as usual copying certain provisions from different abortion legislation of the world! There is no reason as to why India is not ready to increase the time frame to 28th weeks or removing the time frame or the legislatures the Government think that the UK law is senseless!? I think more then UK needs this section, India needs it!

Why India has kept 20 weeks as the upper limit? The answer to this is viability as mentioned above furnished by Indian case laws. In the case of Mr. Vijay Sharma and Mrs. Kirti vs. UOI which laid down that life exists in the fetus while in the womb and article 21 is applicable here making the whole MTP unconstitutional. Even in the case of William L Webster v. Reproductive health services at el it laid down that life of each human being begins at his conception. The same judgment was given by madras HC in Queens Empress vs. Ademmia. The flaw in the judgment is that it ignores the right to life and freedom of the women who has conceived. Isn’t the child still a part of her body? Isn’t this violating her fundamental rights to compel her to carry on with an unwanted pregnancy?  The concept of life at the conception is totally flawed. Women have a right to do anything with her body. In the landmark case of Jane vs. Henry Wade laid down that only after the stage of viability does life comes into being in the womb making abortions legalized.


Right to abortion is a species of right to privacy.In the case of Kharak Singh vs. State of UP, Sc had recognized that a person has complete rights over his/her body parts under article 21. Even the women have complete right over her reproductive organs. Planned parenthood of central Missouri v Danthforth also supported the right to privacy. William Brennan, J said in Eisenstadt v. Baird’: ‘ if right of privacy means anything, it is the right of the individual, married or single, to be free from unwanted governmental intrusion into the matters so fundamentally affecting a person as the decision to bear or beget a child”


In India about 6million abortions takes place every year out which 4million are induced out if which around 5-6lakhs are legal rest all are illegal.Induced abortions are deliberately carried out and it can be either legal or illegal. Unsafe abortions results in around 200000 maternal deaths in developing countries annually. 90% abortions in India are unsafe. A variety of factors including reproductive behavior, accessibility the use of effective contraception, socio-economic conditions and cultural mores, influence the behavior of women seeking illegal abortions. Usually women seeking resort to illegal means are teenage girls, unmarried and widow women of lower socio-economic status and illiterate and of rural origin. This demands for awareness and accessibility of standard abortion facilities. Moreover, in backward areas people unaware about abortions often resort to the crime of infanticide.

The intent of the legislature was population control by legalizing abortions through MTP act but as we can see it wasn’t a success. The reason to it is non inclusion of stringent clause relation to 3rd or 2nd child in India. Let’s take an example of china, by following its family planning policy it got the population under control. It officially restricts the number of children married urban couples can have to one, although it allows exemptions for several cases, including rural couples, ethnic minorities, and parents without any siblings themselves. The Chinese government introduced the policy in 1979 to alleviate social, economic, and environmental problems in China, and authorities claim that the policy has prevented more than 250 million births from its implementation to 2000. The policy is controversial both within and outside China because of the manner in which the policy has been implemented, and because of concerns about negative economic and social consequences. The policy has been implicated in an increase in forced abortions and infanticide, and has been suggested as a possible cause behind China’s significant gender imbalance. Nonetheless, a 2008 survey undertaken by the Pew Research Center showed that over 76% of the Chinese population supports the policy. What do India need is such a strict law which can control population disasters. India should include some stringent clauses relation this in the act, for fulfilling the intent of the legislature. The Govt. knows the society knows or rather it’s a mindset now, which according to me is very rationale and logical. If govt. makes abortion illegal, their will be more of problem like increase maternal deaths, increased child deaths etc i.e. still illegal abortions continues, then why not to make it legal to stop the unethical practices and to control the population as well. A need of proper statistics.


There are various arguments in the debate of legalizing abortions, some people are pro-choice i.e. Letting the women abort the child if she wishes to and second is pro-life ie. The fetus has a right to life and he aborting the child is a crime. Various arguments in favor of the abortion is the fetus has right to life, article 14 and 21 applies to him, he cannot be deprived from a future and life, some people equalizes abortions with manslaughter, some has religious arguments making abortions immoral act while defense to all this is only one according to that’s rationality: the need of the country and its future. Law is not based on religion or emotions, but the need of the time, and the need if the time is legalizing it! Women have right to privacy, right over her body, and right to freedom of decision. This debate is and a never ending one, a vicious circle because if we ague that abortion is deprivation of article 14 and 21 from the child then forcing the lady to carry the child is also violation her fundamental rights. So the Govt. should take a firm stand and decide instead of delaying such an important aspect of the women rights.


Every year 6.7 million abortions take place in India but the sad part is that 5.7 millions are illegal.Now we look at reasons of why women or a couple resorts to abortion, it may be because they want to postpone the bearing of child or they don’t want more child, relationship problem, Spouse doesn’t want a child (remember Salaam Namaste!), too young, child will disrupt education or job etc. now why do women resort to abortions late can be because she couldn’t arrange money for it, misconception of pregnancy, took time to decide, couldn’t tell parents, waited for a change in relationship. Someone pressurized not to abort, relationship changed after pregnancy, unaware about abortion facts etc. Now the list above for resorting for abortion should be legal and for handling the later (if Govt decides not to increase the time frame) should be totally made legal because such a child will be more of a burden and mental anguish to the women. Govt. should look upon the fact that in urban areas and even in rural, illegal abortions takes place when the pregnancy goes beyond 20 weeks. There is another controversial concept of abortion and crime effect which lays down that unwanted and unprotected kid makes criminals. Hence, the women should be allowed to abort as she wishes. The authors argue that states that had abortion legalized earlier and more widespread should have the earliest reductions in crime. Donohue and Levitt’s study indicates that this indeed has happened: Alaska, CA, Hawaii, NY and washington experienced steeper drops in crime, and had legalized abortion before Roe v wade . Further, states with a high abortion rate have experienced a greater reduction in crime, when corrected for factors like average income.Finally, studies in Canada and Australia have purported to establish a correlation between legalized abortion and crime reduction.Moreover, when India had much of critical problems like poverty and unemployment and illiteracy, legalizing abortion would definitely be helpful in reducing all this to certain extent.


A defense to the ongoing debate is immorality! But what’s the definition of “moral”. According to me what is moral for one may be immoral for other, as people vary in views and opinion. Basically what is moral or immoral depends on ones perception that why there are always a bunch of people for or against some issue, i.e. no consensus.  People adopt perceptions and think in a direction in what they lived in, according to their exposure and this perception helps In deciding them morality and hence it can be said morality is more about individual perception and it varies and therefore become principles rather than morals. Hence, such a moral doesn’t exist!


Last but not the least, abortions legal or illegal will always form a part of the society. Deciding factor of whether to abort or not depends on differently people differently. To one abortion can be traumatic, to other forced child birth can be traumatic as in discussed above, it’s all about perception. It’s impossible to decide particular set of rules for all.  It all depends on multifaceted approach of people, her psychological strength; supportive circumstances in helping her decide and help her being convinced about her decisions. Hence it is suggested in all the circumstances decision to abort should be left on the couples/women will. In case 1 of the partner decides against the wish of the spouse the court should interfere and decide the matter.



About the Author:
Author for the above article is Chhavi Agarwal. I am a 3rd year student of Hidayatullah National Law University, Raipur (C.G).
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