This article on ‘Abortion Laws in India: Comparative Analysis with other countries’ is written by an Intern at Legal Upanishad.
Birth of a living being is one of the most beautiful and fascinating process that has been provided by the nature. A new born brings with them lot of joys to the people they are born to, whether that be in humans or animals. Humans are considered to be the smartest of all living beings and they have found solutions to tackle problems they have to face. But sometimes these solutions are used for immoral purposes.
Abortion can be considered to be one such process where the pregnancy is ended before a child is born out of it. It is a medical procedure which is carried out through surgeries and there are laws around the world related to it. This article will be discussing about the right of abortion in India and all over the world.
Concept of Abortion and its History:
In medical terms, abortion can be defined as the termination of pregnancy by removing the embryo or foetus that is developing inside the mother. The practice of abortion is prevalent since the ancient times. It was used to be done with the help of herbs, primitive methods of surgeries and such other process. It was a social stigma since its inception and its proof can be found in ancient manuscripts where the practice of abortion has been said to be immoral and thus has been forbidden by many ancient leaders and philosophers. Abortion is of mainly two different types, namely, induced and spontaneous.
Induced abortion is something where the abortion is carried out voluntarily to end the pregnancy and spontaneous abortion is also known as miscarriage where, generally, the pregnancy ends due to unfortunate and unforeseen circumstances. It is unintentional in nature. Abortion is done due to unwanted pregnancies which can occur from rape, incest, poverty and such other reasons.
Abortion in India:
The concept of abortion has been legalized in many countries of the world but it is topic of controversy in India. The concept of abortion is prevalent in India from the Vedic times. But it has been misused from the ancient times only. One of the most heinous acts that is carried on with the help of abortion is the evil practice of female foeticide. It is done to prevent a girl child from being born. The abortion for causing female foeticide can be both induced and spontaneous It can be spontaneous as in the mother is given something to consume which causes the miscarriage. So the laws relating to abortion in India is very strict and rigid.
An adoption is done to prevent unwanted pregnancies which are the result of rape, incest, failure of contraception, etc. Sometimes the parents are also not ready for parenthood and so they want to abort the child. For this they must have the right to abort. The Indian Government have implemented laws to restrict immoral abortion and give the right of abortion to people only in legible cases.
First and foremost, the Indian Penal Code has some provisions which declare abortion to be illegal in some circumstances and so punishable by law. Sections 312, 313 and 316 of the Act deal with illegal abortion.
It lays down that if a person cause voluntary miscarriage of the child bearer then he or she is punishable under the law. Furthermore, if the foetus is a developed one when the miscarriage has been caused then the punishment is more severe in nature.
It lays down the provision where a person is punishable by law if he or she causes abortion of a woman without her consent, or the abortion is caused forcibly.
It lays down that if a person, who knows that the act he is causing can lead to the death of the female bearing the child and that death would amount to culpable homicide and the person does that act which causes the death of the unborn child dies as a result of that act shall be punishable under this section.
Secondly, the Medical Termination of Pregnancy Act, 1971, provides for the right that a female has in respect of abortion. This Act is very small containing only 8 Sections and it basically deals with why and in which cases should a woman be able to exercise the right of abortion.
Section 3 of this Act lays down the time limit within which an abortion can be considered to be legal, that is, up to which period of pregnancy can an abortion be carried out. The section states that the medical practitioner can carry out the abortion only in good faith, that is, for instance, if the woman is a rape victim or the child developing inside has chances of attaining some kind of disability on birth, in these type of circumstances the abortion can be carried out.
The general time period is 12 weeks but if the pregnancy is between after 12 weeks and before 20 weeks then two practitioners shall have to be convinced about the abortion. Furthermore the section states that if a girl is pregnant is a minor or of unsound mind, then her abortion can be done only after attaining the permission of her guardian.
It states the place where an abortion can be carried out and it should be a hospital maintained by government or any other place which has been approved by the government or the District Level Committee constituted by the government. Section 5 of this Act is a punishment section which provides the exceptions to section 3 and 4 and the outcome if these two sections are violated.
Recently in January of 2020 the Medical Termination of Pregnancy (Amendment) Bill, 2020 was approved by the Cabinet which brought about some changes. The first change is that the maximum limit up to which abortion can be carried out is increased from 20 weeks to 24 weeks. Secondly, if married couples, due to failure of contraception become pregnant, are allowed to abort. This Bill also respects the privacy of women by making it punishable for the medical practitioner to reveal the details of the woman seeking abortion.
Further the Pre-Conception and Pre-Natal Diagnostic Techniques (Regulations and Prevention of Misuse) Act, 1994 makes sex determination test to be illegal because female foeticide was a rising problem and determination of the gender made it more severe.
These Legislations relating to abortion provides for the rights and liabilities of abortion in India.
Comparison of Indian Abortion laws with Other Countries:
Abortion has been made legal in mostly all over the world from the nineteenth century. Many countries today have made abortion legal, the only difference prevails in the rigidity and scope of the right to abortion. For instance, in USA, the abortion laws were very strict and it was only legible when the pregnancy posed threat to the life of the woman but after the historic judgment of Roe V. Wade, the scope of abortion was widened. But still in USA abortion due to rape or incest has not been legalised and for this various protests and movements are being carried on opposing the abortion laws there. Mexico has stated that an absolute ban on abortion to be unconstitutional.
The Polish Government made their abortion laws to be more rigid than ever making it virtually banned. Countries like Thailand and Benin, on the other hand, loosened the restrictions and made their abortion laws to be more flexible and widened its scope.
Abortion has been prevailing in the society from a very long time but it has been considered to be an immoral act. With the development of the countries, they made laws related to abortion and provided provisions vide which what kind of abortions are legitimate and what are punishable has been stated. India abortion laws have become very progressive in respect of USA.
Abortion laws are much needed to curb illegal activities like female foeticide but that does not mean to ban abortion as a whole because it is needed in serious circumstances like in case of rape victims, in case the mental and physical health of child bearer is endangered due to the pregnancy, etc. It can only be hoped that with development the laws also evolve properly and on top of that human beings become more compassionate to tackle these situations.
Nandini Biswas, 2020, Comparative Study of Abortion Laws in India and the USA, iPleaders, https://blog.ipleaders.in/comparative-study-of-abortion-laws-in-india-and-the-usa/
Ines Eisele, 2021, 2021: Changes in Abortion Laws Worldwide, https://www.dw.com/en/2021-changes-in-abortion-laws-worldwide/a-60280568
Vinod Parmar, 2020, Abortion Rights: A Comparative Study of India, USA and South Africa, Vol. III, https://www.ijlmh.com/abortion-rights-a-comparative-study-india-usa-south-africa/
Chitra Subramanium, 2020, India’s new abortion law is progressive and has a human face, https://www.orfonline.org/expert-speak/india-new-abortion-law-progressive-human-face-62023/