Relevance: GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

Key Phrases: Roe v Wade ruling, Medical Termination of Pregnancy Act, 1971, Medical Termination of Pregnancy Amendment Act, 2021, Indian Penal Code, 1860, Maternal deaths, Woman's Right to Abortion, Right of the unborn child.

Why in News?

• The United States Supreme Court recently overturned ‘Roe v. Wade’, the court’s landmark 1973 judgment that made abortion a constitutional right.
• The court’s decision in Dobbs v. Jackson Women’s Health Organisation upheld a law from Mississippi that bans abortion after 15 weeks of pregnancy, roughly two months earlier than what has been allowed under Supreme Court precedent dating back to Roe.

Abortion in India:

• Under the Indian Penal Code, 1860, voluntarily terminating a pregnancy is a criminal offense.
• The Medical Termination of Pregnancy Act, 1971 allows for aborting the pregnancy by medical doctors (with specified specialisation) on certain grounds.
• A pregnancy may be terminated up to 12 weeks based on the opinion of one doctor, and up to 20 weeks based on the opinion of two doctors.
• Termination is also allowed at any point during the pregnancy if there is an immediate necessity to save the woman’s life.
• Through an amendment in 2021, the ceiling for abortions was raised to 24 weeks.

Medical Termination of Pregnancy (Amendment) Act, 2021

• Through this amendment in 2021, the ceiling for abortions was raised to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors, that too, with the approval of two registered doctors.
• A pregnancy may be terminated up to 20 weeks by a married woman in the case of failure of a contraceptive method or device. It allows unmarried women to also terminate a pregnancy for this reason.
• Women can now terminate unwanted pregnancies caused by contraceptive failure.
• There is also no upper gestation limit for abortion in case of foetal disability if so, decided by a medical board of specialist doctors, which State Governments and Union territories’ administrations would set up.

The right of the woman vis-à-vis the right of the unborn child:

• Article 1 and 3 of the Universal Declaration of Human Rights state that all humans are born free and are equals in rights and dignity. All have the right to life, liberty, and security.
• Article 21 of the Indian Constitution states that no person shall be deprived of his right to life and personal liberty except according to procedure established by law.
  • The Supreme Court has given wide amplitude to the expression Right to Life.
  • This right covers the right to sleep, right to live with dignity, right to privacy, right to move freely, right to health, etc. However, the predicament that arises is whether the Right to life includes the right to abortion.
  • Another dilemma in the arena of abortion laws is the right of the mother to abort vis-à-vis the right of the unborn child to live.
• Woman's Right to Abortion:
  • The Supreme Court in the landmark case of Suchita Srivastava held that Article 21 of the Indian Constitution which guarantees the right to life and personal liberty has a broader dimension that extends to the liberty of a woman to make reproductive choices.
  • These rights are the components of the woman’s right to privacy, personal liberty, dignity, and bodily integrity as enshrined by Article 21.
  • In the recent judgment of the Supreme Court by a nine-judge bench in Justice K. S. Puttaswamy’s case, which unanimously affirmed the right to privacy as a fundamental right under the Constitution, reiterated Suchita Srivastava’s case and held that the woman’s right to abortion falls within the purview of right to privacy and hence all her reproductive rights should be ensured by the state.
  • Thus, it has been established by the courts that the woman’s right to abortion is a fundamental right.
• Right of the unborn child
  • Article 21 of the Indian Constitution guarantees the Right to life only to a person. The main question which arises is whether the unborn child is considered a person or not.
  • Presently, the child’s status in the mother’s womb is of the foetus until birth.
  • The status of the life of the foetus is still considered to be questionable as the law of our country has not come on to a conclusion regarding the status of the unborn child.

Arguments Against Abortion:

• The right of the woman vis-à-vis the right of the unborn child.
• The killing of an innocent is a crime and the foetus is also an innocent life.
• Many women suffer significant emotional trauma after having an abortion.
• There is also some evidence that having an abortion may increase other medical complications such as cancer.
• Abortion reduces fertility.
• Unsafe abortions lead to maternal mortality.
• Religious beliefs of some sections do not allow abortion.
• It may lead to forceful abortion by the husband or family of the husband in want of dowry or son.
• It may lead to female foeticide.

Arguments In Favour of abortion:

• Bodily Sovereignty: No one should force a woman either to carry or terminate a pregnancy against her will.
• Abortion represents a woman’s right to choose and reproductive rights.
• It expands the access of women to safe and legal abortion services and prevents illegal abortions.
• Foetal viability occurs post-birth
• Many defend abortion as a way to curb overpopulation.
• Reproductive choice protects women from financial disadvantage
• Abortion gives pregnant women the option to choose not to bring foetuses with profound abnormalities to full term.

Conclusion:

• Reproductive injustice anywhere is a threat to the lives of people everywhere.
• Despite positive developments in abortion legislation, especially when compared to the US, India still has a long way to go.
• Even though India's abortion policy and laws are progressive, its effective translation into improved access to safe abortion care is just as critical.
• A search for the middle path perhaps the right of a woman to choose what to do with the foetus has to be balanced with the right of the foetus to survive.
• Perhaps, it is time to take a new look at this issue from the prism of a woman's reproductive and human rights.

Source: Live-Mint

Mains Question:

Q. Despite positive developments in abortion legislation in India still it has a long way to go. Discuss.