Legality of Abortion: – A Tussle between Right of Mother and of an Unborn Child

This article was submitted by Unnati Vijay from Raffles University, Rajasthan for National Legal Writing Competition,2016.

The term Abortion has derived from a Latin word ‘Abortus’ that means an object has been detached from its proper site. This refers to expulsion of foetus from the uterus before his attainting the stage of viability.  Abortion raises very moral, legal, and medical questions as when a pregnant woman wants to terminate her pregnancy so till what extent she can do so and upon what circumstances, this termination leads to a tussle of rights of the mother and of the unborn child either mother has a right upon her body and right to terminate pregnancy or the unborn child has the right to life. The legislation providing guidelines to govern the abortion in India is the Medical Termination of Pregnancy Act, 1971 (MTP). This act provides wit the various situations where termination of pregnancy is permitted, here it can be said that right of mother prevails over that of the unborn child as to save her life and health precautions she is allowed to do so as it seems to be less evil in nature.

There are many provisions in Indian Penal Code, 1860 (IPC) which would otherwise dealt as a crime in different cases where the accused could show that he did it in a good faith in order to save the mother form a panel of death row. According to sec 81 of IPC make it an offence in order to avoid consequences that could have operated and to protect inevitable from the evil, relying on the self defense doctrine is not new concept to the law and even goes to the extent of cause to the death of other. The Law undoubtedly authorizes the person to use a reasonable force to apprehend from the further consequences in a reasonable manner, now taking up the case for abortion where the mother’s life is at risk for bearing that child and if abortion is processed then chances that  mother can be saved, if the foetus appears to be dangerous for the mother’s life then in such a situation it could be understood that while balancing there arises certain ingrained complexities and to balance the health measures and on the other hand the another’s life.

Abortion with all the reference can be said that it exists from time immemorial and further changes have been seen largely in respect of decoding the legislation over it. The code has designed keeping in mind the designation of abortion as a serious offence making both miscarriage with or without the consent of women making it an offence punishable under IPC with provision of sec 312 and 313 respectively. Basically for attracting this section there is criteria of 2 essential elements to be fulfilled as

  1. That miscarriage should have been caused voluntarily
  2. That it should not have been performed in good faith in order to save the life of the woman.

Accordingly sec 312 of IPC stood before the MTP which punish to cause voluntarily a miscarriage will be punished with imprisonment upto 3 years, if  woman is quick with child then it may lead to a punishment upto 7 years, otherwise provided that it was done in good faith in order to save the life of mother. Sec 312 relates to unlawful termination of pregnancy, the framers does not use the word abortion as because to ascertain that tradition and culture of the society is not harmed. The section deals with miscarriage only unfortunately that has not been defined in the act, however we take miscarriage and abortion in a synonymously that consist of expulsion of foetus before it is viable.

It took the period of 3 decades for many countries to have a liberalized abortion law as it is against the moral and ethical issues. Recent study states that today’s 8% of world population lives in such a country where law prevents abortion. Talking of Indian scenario a committee named Shantilal Shah Committee recommend to liberalize the abortion law in1966 as to avoid the maternal morbidity rate and mortality associated with the health related problems faced while pregnancy and illegal abortion was also a criteria to keep in mind, these grounds were taken into consideration while framing the Medical Termination of Pregnancy bill and executed by parliament in August 1971 as Medical Termination of Pregnancy Act, 1971 which provide for rules and regulation for abortion. The act provides for termination of certain pregnancy by a registered medical practitioner. This registered medical practitioner is defined under sec 2(d) of this Act. Other matter connected is also taken into consideration as to the consent for termination of pregnancy, the place to be commenced the termination and rules and regulation regarding this.

Right to life is an inalienable right which cannot be taken away from a living person so how to determine that the right to life of an unborn child, unborn child seems as an unborn human, constitution recommend to consider as capable of being born, as this term is not defined anywhere in a legal sense or so far done by courts. The right to life is difficult to explain that it could not restrict to guarantee against taking of another’s life, as the broader meaning could be that it is much more than mere animal existence. These inhabitations deprive limbs its extension to the faculties by which life is enjoyed.

Abortion and right to life under Indian Constitution as Art 21 provides that “No person shall be deprived of his life except the procedure established by law” so no one can deprive his right to life without due, fiar and just process. Now the main tussle that whether an unborn child has right to life, when does life begins? Does that child has a right to life while he still is in mother’s womb, regarding this issue there are anonymous and unanimous issues to be raised that when it commence as there are different opinion and concept of life. One of the view accepted by Catholic Churches[1] that life begins from the movement of the fertilization.

Unlike the Abortion Act, 1967 of England, India permits abortion upon the ground for rape, as the act of rape could affluence the doctor to invoke some health grounds in sense to continue the pregnancy may poses a substantial risk to health and life expectation of mother. Similarly failure of any method used by married couple in restricting pregnancy is no valid ground in Indian law to invoke termination of pregnancy.

The major amendment made to this act was brought by a couple from Mumbai as they plead to abort their 26 week old foetus as when diagnosed has a congenital heart disease. After six years passed rejection of their plea, health department brought up an amendment as a bill in 2014 which now allows terminating the pregnancy after 20 provided with special circumstances.

Here the SC has proved to be a judicial activism and goes beyond what act is providing as a case appeared before the Hon’ble Court regarding the termination of pregnancy of a rape victim which has extended to 24 weeks as the minor was suffering from mental as well as physical pain and the pregnancy would lead to a danger for her life affecting her health. SC verdict that as there is endanger to minor’s life and according to the doctor’s panel advice those are expert of it, the court allowed to terminate pregnancy even after 24 weeks of pregnancy as there was a danger to the life of the minor. The latest amendment allows terminating pregnancy before 20 weeks of pregnancy by providing with such flexible verdict by SC in interest of the girl as the pregnancy will result in various complication as her trauma was increasing day by day. SC refrain itself to just stick to the law but has emerged as a source of law and pronounced a judgment which in real is justice for the minor girl. The court further approved for termination as it would be shadowed under sec 5 of the act grants for exception for allowing abortion.

Although MTP is an example of landmark legislation in India as it has made abortion a legal phenomenon and was accepted fairly in wide circumstances, more awareness and judiciary active roles has been seen and it results in squeezing out the back street abortions so that precaution relating to regulation and safety, as the function of abortion to be performed with qualified personnel in well equipped hospital, doctor well versed with the same, this act plays a vital role in emancipating women to overcome their long last fear to consider abortion as an sinful act, and provides with the safety measures for women.


[1] Callahan, D.: Abortion: Law Choice and Morality (1970) p. 409

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