By Ms. Nirupama V Shankar
1.Introduction
The pro-choice argument supports a woman’s judgement in whether she chooses to keep her foetus. Rather than being regulated by legislators, a woman should be able to determine the need to abort, especially if it is an outcome of a traumatic event such as rape or incest, or when it puts the life of the mother or the foetus itself at risk.[i]The ability of a woman to have control of her body is critical to civil rights. A woman should be treated as human, and not merely as a carrier of children.
2.Abortion Laws Around The World
A. India
India has a ‘conditional right’[ii] to abortion, and is regulated by the MTP Act, 1971. A pregnancy maybe terminated up to 20 weeks, beyond which a court order is necessary. In 2017, the Supreme Court allowed a 13 year old, who was a rape victim to abort her child whilst she was nearing the 32 week mark.[iii] Yet,the same court did not grant permission to a 10 year old rape victim to abort.[iv]A milestone decision was taken in Suchita Srivastava &Anr. v. Chandigarh Administration[v].
The Apex Court ruled that women have autonomy to take informed decisions regarding their own bodies, fertility, and reproduction.[vi] This was reiterated when the right to privacy was held as an integral part of the Indian Constitution.[vii]In 2014, the Government sought to increase the gestational limit for seeking abortions on grounds of foetal abnormality beyond 20 weeks. This would result in making abortion available at any time during the pregnancy, if the foetus is diagnosed with severe foetal abnormalities. It is also proposed to include increasing the gestation limit for safe abortion services for vulnerable categories of women expected to include survivors of rape and incest, single women (unmarried/ divorced/ widowed) and other vulnerable women (women with disabilities) to 24 weeks.[viii]
B. USA
Estimates of the number of illegal abortions in the 1950s and 1960s in the United States, ranged from 200,000 to 1.2 million per year, with nearly 18% maternal deaths.[ix] In the landmark case of Roe v. Wade[x], the court held that statutes criminalizing abortion in most instances violated a woman’s right of privacy. It protects a pregnant woman's liberty to choose to have an abortion without excessive government restriction.[xi] However, this right is not absolute, and must be balanced against the government's interests in protecting women's health and prenatal life.[xii]
Later, this was partially overturned in Planned Parenthood v. Casey[xiii], which stated restrictions on abortion are unconstitutional if they place an “undue burden” on women seeking abortions.[xiv] Now, many US states are looking to overturn this in favour of restrictive abortion bills known as heartbeat bills.[xv] These bills were introduced in conservative states like Georgia, Alabama, and Ohio to put a ban on abortions beyond a period of 6 weeks. It’s considered to be an extremely brutal bill because many women don’t even realise they’re pregnant until after 6 weeks.[xvi]
Federal courts have blocked these bills from taking effect, but if the Supreme Court decides to overturn Roe v. Wade[xvii], it could be a potentially dangerous time for women.
C. United Kingdom
In England, “If the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are entitled to take the view that the doctor is operating for the purpose of preserving the life of the mother”[xviii]
The court suggested that there might be a duty in certain circumstances to abort an unborn child to save the life of the mother.[xix] This was an instance wherein the woman’s life was given precedence over that of the foetus. Currently, abortion is permitted in the UK up till 24 weeks, and is also conditional, subject to statutory provisions.[xx]
In Ireland, abortion is illegal with the exception of cases where a woman’s life is endangered by the continuation of her pregnancy.
Savita Halappanavar died from infection after miscarrying her first child in October 2012 in an Irish hospital. She pleaded her doctors for a termination, but medical staff refused, because a fetal heartbeat could be detected. This resulted in international controversy and sparked a campaign to have Ireland's abortion law liberalized.[xxi] Now, voters have agreed to remove the constitutional ban on abortion and even have voted to call it Savita’s law.[xxii]
In Mellet v. Ireland[xxiii], the committee found that she was subjected to discrimination and cruel, inhuman or degrading treatment as a result of Ireland's legal prohibition of abortion. The committee said that, in addition to the shame and stigma associated with the criminalization of abortion of a fatally ill foetus, Mellet's suffering was aggravated by the obstacles she faced in getting information about the appropriate medical options.[xxiv] The government paid her €30,000 for the suffering caused.
Unfortunately, in Northern Ireland, abortions are banned under all circumstances except if doctors believe the life of the mother or her mental health are at risk.[xxv] Even rape and fatal foetal abnormality not considered legal grounds for a termination. The penalty for undergoing an unlawful abortion is life imprisonment.[xxvi]
3.Conclusion
The criminalisation of abortion in countries is based on religious and moral arguments, and has resulted in an increase of maternal mortality rates. It is a flagrant violation of a woman’s basic rights as she is punished for taking a decision about her own reproductive health. Only the mother’s consent is paramount and her decision should not be controlled by her doctor, husband or any authority. Existing legislation should be more lenient and should allow a woman to abort her foetus if the situation is dire, and not allow her to go through the cumbersome procedure of obtaining a court order.
By legislating the terms and conditions at which a woman can undergo an abortion, her right to dignity[xxvii]is violated. It is argued that aborting a foetus is ‘silent murder’. It should be understood that there is no life for the foetus without its mother. Termination doesn’t takes place casually. If the foetus is severely disabled or is to be born in a harmful situation, it deprives the child of any real quality of life. Abortion is not murder. This is an insensitive notion that is derived from our patriarchal society, which values women as nothing more than a baby-making machine.
A woman’s body is only hers, and not the property of the state, or anyone else. The foetus rests within her own body, and the woman should have a final say in her pregnancy. Banning a woman’s right to abortion seeks to destroy the concept of gender equality, whereby placing an unwanted restriction on their bodies, that men don’t face. At the end of the day, the concept of abortion will always remain an ethical grey area, but there must exist a clear understanding that a woman must possess the control to make decisions over her own body.
[i]Vijayan K. Pillai, Guang-Zhen Wang, "Women's Reproductive Rights, Modernization, and Family Planning Programs in Developing Countries: A Causal Model" in International Journal of Comparative Sociology, Vol. 40, 1999. [ii] Section 3, The Medical Termination of Pregnancy Act, 1971. [iii] Indian Supreme Court allows rape victim, 13, to terminate pregnancy, BBC, (06/09/2017) available at: https://www.bbc.com/news/world-asia-india-41172796.. [iv]Indian rape victim, 10, gives birth by Caesarean section, BBC, (17/08/2017), available at: https://www.bbc.com/news/world-asia-india-40961137. [v] Suchita Srivastava &Anr. v. Chandigarh Administration ,(2009) 9 S.C.C. 1 : (2009) 3 S.C. (Civ) 570 (India), “reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth, and to subsequently raise children; and that these rights form part of a woman’s right to privacy, dignity, and bodily integrity.” [vi]Ibid [vii] Justice K S Puttaswamy v. Union of India, (2017) 10 S.C.C. 1(India). [viii] Draft Medical Termination of Pregnancy (Amendment) Bill, 2014. [ix]Rachel Benson Gold, Lessons from Before Roe: Will Past be Prologue?, Guttmacher Institute, available at https://www.guttmacher.org/gpr/2003/03/lessons-roe-will-past-be-prologue. [x] Roe v. Wade ,410 U.S. 113 (1973). [xi]William Mears & Bob Franken, 30 years after ruling, ambiguity, anxiety surround abortion debate?, available at http://edition.cnn.com/2003/LA W/01/21/roevwade.overview. [xii] Nowak, John E.; Rotunda, Ronald D. (2012). Treatise on Constitutional Law: Substance and Procedure (5th ed.). Eagan, Minnesota: West Thomson/Reuters. [xiii] Planned Parenthood v. Casey, 505 U.S. 833 (1992). [xiv]Ibid. [xv] Eric Levenson, Abortion Laws In The US: Here Are The States Pushing To Restrict Access, CNN Politics, (30/05/2019), available at https://edition.cnn.com/2019/05/16/politics/states-abortion-laws/index.html. [xvi]What's going on in the fight over US abortion rights, BBC News, available at:https://www.bbc.com/news/world-us-canada-47940659. [xvii]Roe v. Wade, 410 U.S. 113 (1973). [xviii]R v Bourne, [1938] 3 All ER 615. [xix]Ibid. [xx] Section 1, Abortion Act, 1967 (United Kingdom). [xxi]SavitaHalappanavar's parents hail Irish abortion vote, available at: https://www.bbc.com/news/world-europe-44274313. [xxii]Ibid. [xxiii] CCPR/C/116/D/2324/2013. [xxiv] Fiona de Londras, Mellet v. Ireland (H.R. Comm.), 56 International Legal Materials , 217–244 (2017). [xxv]Siobhán O'Grady, Alabama’s new plan to ban abortion could jail doctors. In some countries, laws already do, The Washington Post, (15/05/2019), available at: https://www.washingtonpost.com/world/2019/05/15/alabamas-new-abortion-ban-could-jail-doctors-some-countries-laws-already-do/?noredirect=on. [xxvi] Andrew MacAskill, Britain's May refuses to relax Northern Ireland abortion rules, Reuters, (27/05/2018), available at: https://www.reuters.com/article/us-ireland-abortion-may/britains-may-refuses-to-relax-northern-ireland-abortion-rules-idUSKCN1IS09E, last seen on: 10/08/2019. [xxvii]UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html.