“More than anything, a person’s right to abortion is a person’s right to their own body.” - Andrea Bian
This article is written by Anushka Kishwar, content writer at Legaleagle Law Forum on the topic "abortion laws in India."
INTRODUCTION
The word abortion is derived from the Latin word abortio (n-), from aboriri ‘miscarry’ in the mid-16th century. In layman's language, abortion is a process to end or terminate a pregnancy. Abortion is one of the most controversial topics in the medical world as most the people regard it as culpable homicide amounting to murder for the killing of the unborn child whereas according to the feminist, women have the right to opt for abortion as they have the right to get pregnant and give birth. The main issue that most countries in the world face is the legality of the abortion process and in this article, we will discover the laws related to abortion in India.
According to obstetricians, it means “that the fetus or embryo is removed from the uterus. Early abortion means that the fetus or embryo is removed before it reaches the age of viability. The heart rate in an embryo or fetus comes around 6 weeks. Removal of the fetus i.e., termination of pregnancy or abortion before 6 weeks is a simpler procedure.” The main issue which most of the countries in the world faces is the legality of the abortion process and in this academic article, we will discover the laws related to abortion in India.
METHODS TO PERFORM ABORTION IN INDIA:
Abortion is generally not a painful process. There can be trivial discomfort for which medications are available. There are two methods to perform the termination of pregnancy are as follows:
1. ORAL METHOD
If the pregnancy period is less than 6 weeks, one can easily opt for oral medical abortion. The procedure is as follows:
Ultrasound confirmation for the duration of pregnancy and to exclude tubal pregnancy.
Blood tests are done.
2. SURGICAL METHOD
There are numerous names of this method. Such as
Vacuum Aspiration.
Dilation and Evacuation.
Dilation and Curettage.
Suction evacuation.
LAWS RELATED TO TERMINATION OF PREGNANCY IN INDIA
Indian Penal Code, 1860
Under the IPC act, 1860 some provisions deal with the cause of miscarriage and injuries to the unborn child, from sections 312 to 316. The main ingredients of the offense of causing miscarriage under section 312 are as follows:
1. Voluntarily causing a woman with a child to miscarriage.
2. Such miscarriage should not have been caused in good faith for saving the life of the pregnant woman.
Miscarriage means premature expulsion of the child or fetus from the mother’s womb before the completion of the natural gestation period. It is always artificial while delivery is natural, though in the case of delivery also sometimes operation or other means are employed. Because of a rising incident of illegal abortions, the Criminal Law (Amendment) Act, 2006, has enhanced the punishment for the offense under section 312 to 7 years and a fine which may exceed to ₹1,00,000.
Under section 313, miscarriages are caused without obtaining the consent of the woman, and hence only the person who causes the abortion is punished and the woman is not punished, while in section 312 the woman who causes herself to miscarry is also punished.
Under section 314, where death is caused by the act done to cause miscarriage. In the case of Surendra Chouhan vs. State of M.P., 2000[1], the accused had illicit relations with the deceased and when she became pregnant, he took her to a clinic with intent to cause abortion. The woman died during the process as the doctor was not competent to terminate pregnancy nor was his clinic approved by the government as acquired under Section 4 of the Medical Termination of Pregnancy Act, 1971. The High Court held that the accused as well as the doctor is liable under section 314/34 of IPC.
Section 315 of IPC, 1860 covers the acts which destroy a child’s life whether before or after its birth, and section 316 deals with the offense of causing the death of unborn children when they are in an advanced stage of pregnancy beyond the stage of quickening which is when death is caused after the ‘quickening’ but before the birth of the child. the principle laid down in section 301 is applied here. The offense of culpable homicide applicable to a living person (victim) would be applied in this case where the sufferer is a quick unborn child whose death is caused by any act or omission of the nature which would have caused the death of a living person as mentioned above.
Illustration- A, knowing, that he is likely to cause the death of a pregnant woman, does an act which, if it is caused the death of a woman, would amount to culpable homicide. The woman is injured but does not die, but the death of an unborn quick child with which she is pregnant is thereby caused. A guilty of the offense is defined in this section.[2]
‘Quick with child’ means having conceived but it connotes the peculiar perception felt by a pregnant woman when the fetus in the warm begins to move which generally occurs after the 4th or 5th month of the pregnancy.
In Murugan vs. State[3], the accused physically assaulted his 20 weeks pregnant wife thereby causing the death of the fetus. The medical evidence showed the fetus start taking shape after about 12 weeks of conception. The accused was, therefore, convicted for the offense of causing the death of a quick unborn child under section 316 of IPC.
Medical Termination of Pregnancy Act in India, 1971
It is an exception to the provisions related to miscarriage (Section 312-318) of IPC. According to Section 3 of the Medical Termination of Pregnancy Act in India, 1971, India under the law provides a right for abortion up to 12 weeks and if the length exceeds 12 weeks but does not exceed 20 weeks then the opinion of the 2 registered medical practitioner, in the good faith that the continuance of the pregnancy would involve risk to the life of a pregnant woman or of grave injury to her physical or mental health; or there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped.
According to the act, where any pregnancy is alleged by the pregnant woman to have been caused by rape, or any pregnancy occurs because of failure of any device or method used by any married woman or her husband to limit the number of children, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Under the Medical Termination of Pregnancy Act, no pregnancy shall be terminated except with the consent of the pregnant woman.
THE CONSTITUTION OF INDIA
Though enigmatic and obscure, the Constitution of India also addresses the matter related to the idea of abortion. Under article 21 of the constitution, the right of abortion is subjected to elucidation. Article 21 of the constitution is about the Right to life and personal liberty. And under this article, a woman has a right to enjoy her personal liberty and modify her body in any way she can.
CONCLUSION
The debate regarding whether abortion is a crime to kill a fetus or ‘quick with child ‘or right opted by the woman to enjoy her right personal liberty and to modify her body will be a very long discussion. The main issue which India faces regarding abortion is that the laws related to the scope of termination of the pregnancy are very limited and there is a need for the proper implementation of laws related to the termination of pregnancy. And there is a need to keep a check and balance in this society, make sure that there is no illegal abortion taking place nor misuse of these rights. The abortion should take place only if there is a risk or endanger to the life of either the pregnant woman or the unborn child.
REFERENCE [1] 2000 Cri. L.J., 1789 (M.P.) [2] Refer section 316, IPC 1860 [3] 1991 Cri. L.J., 1680 (Mad.) see also Jabbar vs State, AIR 1966 All. 590