A QUALIFIED RIGHT OF EVERY MOTHER: ABORTION

Author: Rishika Jain, B.Com LL.B (Hons) 1st Year, Amity Law School, Amity University Rajasthan. Every year millions of women around the world decide to end pregnancy through abortion which is defined as removal of a foetus; or embryo from uterus before the stage of viability. People consider abortion as “legal murder” in the countries where it has been legalized. In an advisory issued to all doctors and state health secretaries, the Indian Medical Association (IMA) said that removal of foetus in less than 20 weeks of pregnancy is abortion. Women in this society are considered to dedicate their lives towards motherhood and this is considered as their supreme mission. A woman’s morality is not degraded if she kills her own child due to economic reasons but an unwanted pregnancy due to sexual assault or failure of contraception definitely leaves a stamp on a woman’s character. Thus the claim for ‘right to abortion’ by the women’s movement was not only linked to a decline in morality but also to a barrier for other women to be liberated. Within this widespread debate which is often dominated by vocal officials, the following points will lay a strong foundation for a better understanding of the premises: • Women in order to be fully enabled to participate in the public sphere on equal terms with men and, prima facie, control of one’s own fertility is a fundamental prerequisite for such full participation. • States have an important responsibility to support and promote the health, including the reproductive health, of their citizens. • Principle of respect for patient autonomy in medical practice is necessary and should be condemned in the name of morality and degradation of character of women. • A moral person with equal ethical status to someone who has been born, a human foetus might not hold moral value and significance, it increases as it grows throughout pregnancy. In India, under the Medical Termination Pregnancy Act, 1971, abortion is a qualified right. It means that abortion simply cannot be performed on a woman’s request. An abortion is permitted only if continuing the pregnancy poses a ‘substantial risk’ to the woman’s life or to her ‘physical or mental health’. An abortion may also be allowed in those cases where the child after birth possesses the chances of being majorly handicapped or would suffer from serious mental abnormality. Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of a pregnant woman. In those cases also abortion may be allowed. In the year 2017 Supreme court dismissed a plea of abortion because a 26 week pregnancy posed danger to both the woman and the foetus. She approached the court in the 17th week of her pregnancy. The pregnancy was caused due to sexual assault. Due to the delay in the legal process she was tied with a child for her entire life. A child in such case can be a reason enough for Post-traumatic stress disorder after facing sexual assault. Payal Shah, senior counsel for Asia at the Center for Reproductive Rights said, “Absolutely no woman should be forced to go to court just to get the reproductive health services she needs. And yet, at every turn, the courts and the medical community failed this woman. Even while recognizing that previous denials of abortion services violated this woman’s dignity, the Supreme Court still refused to guarantee her proper care.” In England, Wales and Northern Ireland, abortion was a criminal offence by virtue of a statute passed at a time when our society was only on the brink of the beginnings of a modern world. The Offences Against the Person Act 1861 (OAPA) was passed in the middle of the reign of Queen Victoria, some 20 years before married women were recognized as legal persons able to own property in their own right. At a time when that matters, sexual prejudice was almost unimaginably different from ours. There came a need where OAPA was to be modernized because of the changes occurring in society and the laws becoming outdated. Then came the Abortion Act, 1967. The overwhelming majority of legal terminations are performed on the basis of section 1(1)(a) of the Abortion Act which applies in England, Wales and Scotland, which explicitly allows for a broad exercise of clinical discretion. Abortion then became frequent and was widely performed by gynecologists all around UK. It was stated that one in every 3 women from all walks of life need abortion. In America there were on statutes concerning abortion in 1800’s. It was made legal under the common law and not considered morally wrong roughly between 1821-1841. By 1850’s there was one abortion every five or six live births in United States. Due to the increasing rate of abortions, the legislation of almost every state by 1900 had some kind of anti-abortion statute dropped the tradition of the quickening rules and it revoked the common law immunity granted to the abortee. In 1973 there was a landmark case Roe v. Wade which made abortion legal in all U.S States and every state shall have one abortion clinic with some exception in states like Georgia where abortions after a heartbeat is detected are prohibited, and Columbia where abortion is completely unregulated in the district throughout the period of pregnancy. There are limits to the elasticity of legal language. Abortion should be treated as any other area of medical practice, remaining subject to the same range of criminal, civil, administrative and disciplinary regulations that apply to all clinical procedures. Specifically, this should mean that criminal sanction remains available where terminations involve serious harm to the woman concerned, most obviously, where they are non-consensual. All the claims that negative emotions will emerge over time is a myth that has persisted for decades without any evidence to substantiate these claims and hence should not be a ground to deny abortion. Judgments passed by the society and imposing its own moral, ethical or religious beliefs tend to make women traumatic. Abortion is healthcare. Every woman has bodily autonomy and we need to recognize that her bodily autonomy should always come first compared to a potential life, a foetus. DISCLAIMER: Views and opinions as expressed in the Research Articles are solely of the author and any member of the Editorial team or the Founder, Co-Founder or other members of the website shall not be liable for the same.

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