This article is written by Abhishek Yadav, Maharaja Agrasen Institute of Management Studies, Rohini
Meaning of abortion– According to the medical terms, abortion is the process of complete or partial separation of the products of conception from the uterine wall complete or partial expulsion from the uterine cavity before the age of viability. The meaning of abortion is the termination of pregnancy by any way or any method ( induced or spontaneous) before the fetus is sufficiently developed to survive independently (fetus which is less than 20 days of pregnancy).1
One more definition is when the delivery of the fetus/baby that is less than 500 grams. This is a technique to remove a developing Embryo or Foetus from the maternal uterus. Abortion is a term of pre mature termination of pregnancy prior to birth. It is a technique of removing a developing foetus or embryo from the maternal uterus.
Reproductive rights are the legal rights of a women which gives them the freedom to control their own reproduction system or pregnancy. And this right also includes the rights to make their own decision regarding her reproduction free from any discrimination and violence.
In India, the age of viability is maximum of 28 weeks, and the cause of sudden abortion in most of the cases are not known. In most of the village areas of Madhya Pradesh and Rajasthan sex determination is a common practice which ends up in the form of abortion if the child to be born is female. It is a criminal offence but even after that this act still in practice.
Few common reasons behind that are:
The practice of dowry system
Sex with a minor girl
Prime preference is given to a male child
The financial burden on the family of the girl child
Types of Abortion
Abortion generally evokes an image of “induced abortion”. There are mainly two types of abortion and those are:
Spontaneous – (according to medical author William c. Shield Jr., MD, FACP, FACR) A miscarriage, that is, any pregnancy that is not viable (the fetus cannot survive) or in which the fetus is born before the 20th week of pregnancy. Spontaneous abortion occurs in at least 15-20% of all recognized pregnancies and usually takes place before the 13th week of pregnancy.
Induced – as we discussed spontaneous abortion is purely accidental but induced abortion is opposed to spontaneous abortion and it happens because of some form of external interference or intervention ( physical, medical or surgical) starts and complete the process of extraction/expulsion of the product of conception.
Types of spontaneous abortion are: Threatened, inevitable, missed abortion, complete abortion, incomplete abortion, septic.
Now types of induced abortion are: Therapeutic and non Therapeutic
Abortion laws in India.
This would be incorrect to say that abortion was illegal in India until the regulations through the MTP act came into force. Therapeutic abortions to save the mother’s life were always illegal. In India Medical Terminology of Pregnancy or induced abortion is permitted under sec. 312 of Indian Penal Code and Medical Termination of Pregnancy Act. Even after that 4 to 5 million abortions takes place annually in India, more than 2/3 (two-thirds) of them are illegal and performed outside the statutory provisions of the Medical Terminology of Pregnancy act by unskilled, untrained persons and are performed under highly unhygienic conditions. Under section 45 of Indian Penal Code, 1860, including abortion or causing “a women with a child to miscarry” is a criminal offence and punishable under IPC for both physician who does it or the women who procure it, there is only exception that when it is done in ‘good faith to save the life of a women’.
Women’s are also the prime part of the society for today and for the coming generations. They should be safe. The ICPD has mentioned in their report that women’s right to sexual health and reproduction as being the key to the women’s health. Every year thousands of women’s die due to unsafe abortion.
For insuring the safety of the women’s in the society Government has introduced various scheme’s for girls like national nutrition mission i.e. Poshan Abhiyan and Beti Bachao, Beti Padhao where its aim to save the girl child and educate her.
If we go through with the Constitution we will find that the framers of the Constitution had already enlisted Right to Health in the DPSP (Directive Principal of State Policy) which dictates that This is duty of the state of provide nutrition, rehabilitation, health services and general awareness and after that the judiciary plays a very vital role and it has been enforced as a Fundamental Right under Article 21 of the Constitution ( Right to Live with Human Dignity). The right to health also includes right to clean environment, right to food, reproductive rights, right to liberty, health and safety emergency health care etc. If any of these fundamental rights gets violate it can easily be taken to the court by filling a writ petition Supreme Court and High Court.
Medical Termination of Pregnancy Act, 1971
This medical termination of pregnancy act passed by the parliament in 1971 and this act came into force on April 1972. This act was amended in the year of 2002. In the act basically the conditions mentioned under which a pregnancy can be monitored, terminated and supervised by the Chief Medical Officer of the district. The medical termination of pregnancy act has enlarged the scope of legal abortion and this act also made safe abortion available to women up to 20 weeks of pregnancy under strict rules and regulations to ensure safety and prevent it’s misuse.
In the country, unwanted pregnancies also the main reason which set forth problems and which ultimately amount to fatal consequences to the women. In the country like India if the pregnancy is out of wedlock so considered disgraceful. After the MTP act,1971 passed it is legal now to have abortion in the country. Any women if she wants to or seeking an abortion is permissible under this law to do so. Despite several policies and laws, thousands of women dies every year due to this unsafe abortion process. This MTP act, 1971 consists of 8 sections dealing with various aspects like place, time and circumstances under which a pregnancy can be terminated or it may be terminated by a registered medical practitioner. The Medical termination of pregnancy act, 1971 has liberalized the availability of abortion by extending it when the pregnancy is going to cause grave physical or mental injury to the mother and by including rape- contraceptive and induced failure caused pregnancies.
Penal provisions Under sec 312 and 316 of Indian Penal Code, 1860 deal with penal provisions related to illegal abortion. These sections deal with offences related with unborn child and human body.
Sec 312 deal with if a person who knowingly causes a miscarriage to women with a child will be punished with imprisonment and fine for 3 years or both. It is a non cognizable and bailable offence.
Sec 316 is a cognizable, and non bailable under this section the offender does not necessarily cause abortion or does any thing which can kill the unborn baby, but according to this section even if there is no intention or desire by the offender still he/she liable or guilty for the offence.
Sec 316 deals with causing the death of an unborn baby by this act amounting to culpable homicide.
In the case of Suchita srivastava vs V krishnan 2, SC held that the state has the obligation or duty to ensure reproductive rights as component of her Fundamental Right article 21 that is personal liberty, dignity and privacy.
In the recent time the abortion method have become much safer. According to the several reports every year women suffer due to unwanted pregnancy specially in the rape victims cases. The Right to health if it does not promise better health to all the women it defeats its purpose and the government should understand and take the action’s for the same and launch the schemes related to health care. A women should have the proper right on her own body. Because of unsafe abortion it results in internal injury and infections which is because of the lack of proper awareness and knowledge. It is the duty of the society to make our women strong instead of making our women week so that they can fight back and do not lose hope.
- CIVIL APPEAL NO. 5845 of 2009 (arising out of S.L.P. © No. 17985 of 2009)