Abortion- a matter of Human Right and Social Justice

Throughout history, induced abortions have been a source of considerable debate and
controversy. An individual's personal stance on the complex ethical, moral, and legal issues has a
strong relationship with the given individual's value system. A person's position on abortion may
be described as a combination of their personal beliefs on the morality of induced abortion and
the ethical limit of the government's legitimate authority.

It is a woman's individual rights, right to her life, to her liberty, and to the pursuit of her
happiness, that sanctions her right to have an abortion. A women's reproductive and
sexual health and shape her reproductive choices. Reproductive rights are internationally
recognized as critical both to advancing women's human rights and to promoting development.
In recent years, governments from all over the world have acknowledged and pledged to advance
reproductive rights to an unprecedented degree. Formal laws and policies are crucial indicators
of government commitment to promoting reproductive rights. Each and every woman has an
absolute right to have control over her body, most often known as bodily rights.

A woman has a right to abortion if:

 The continuance of the pregnancy would involve risk to the life of the pregnant woman
greater than if the pregnancy were terminated.
 The termination is necessary to prevent grave permanent injury to the physical or mental
health of the pregnant woman.
 The continuance of the pregnancy would involve risk, greater than if the pregnancy were
terminated, of injury to the physical or mental health of the pregnant woman.
 The continuance of the pregnancy would involve risk, greater than if the pregnancy were
terminated, or injury to the physical or mental health of any existing child of the family
of the pregnant woman.
 There is substantial risk that if the child were born it would suffer from such physical or
mental abnormalities as to be seriously handicapped.
 Or in emergency, certified by the operating practitioner as immediately necessary:
to save the life of the pregnant woman or to prevent grave permanent injury to the
physical or mental health of the pregnant woman.
The Historic Decision of: Roe Vs. Wades (1973)

This case is one of the most politically significant Supreme Court decisions in history, reshaping
national politics, dividing the nation into "pro-choice" and "pro-life" camps, and inspiring
grassroots activism. This is a landmark United States Supreme Court decision establishing that
most laws against abortion violate a constitutional right to privacy, thus overturning all state laws
outlawing or restricting abortion that were inconsistent with the decision. Jone Roe, the plaintiff
wanted to terminate her pregnancy because she contended that it was a result of rape. Relying on
the current state of medical knowledge, the decision established a system of trimesters that
attempted to balance the state's legitimate interests with the individual's constitutional rights. The
Court ruled that the state cannot restrict a woman's right to an abortion during the first trimester,
the state can regulate the abortion procedure during the second trimester "in ways that are
reasonably related to maternal health," and in the third trimester, demarcating the viability of the
fetus, a state can choose to restrict or even to proscribe abortion as it sees fit.

In response to Roe v. Wade, several states enacted laws limiting abortion, including laws
requiring parental consent for minors to obtain abortions, parental notification laws, spousal
consent laws, spousal notification laws, laws requiring abortions to be performed in hospitals but
not clinics, laws barring state funding for abortions, laws banning most very late term abortions.
The Supreme Court struck down several state restrictions on abortions in a long series of cases
stretching from the mid-1970s to the late 1980s.

In the Supreme Court of Canada, interpreting Article 7 of the Canadian Charter which guarantees
an individual's right to life, liberty and freedom and security of a person. In the leading case
of Morgentalor Smoling and Scott vs. R (1988) 44 DLR (4th) 385, the Court focused on the
bodily security of the pregnant women. The Criminal Code of the country required a pregnant
woman who wanted an abortion to submit an application to a therapeutic committee, which
resulted in delays. The Supreme Court found that this procedure infringed the guarantee of
security of a person. This subjected the pregnant woman to psychological stress.

Also, it was also held in 1992 by the Supreme Court that a woman has the same exclusive right
to abortion as to any to any other medical treatment. The prospective fathers have no right to be
consulted for the same.
The Indian Perspective

Indian law allows abortion, if the continuance of pregnancy would involve a risk to the life of the
pregnant woman or grave injury to her physical or mental health.

Abortion is severely condemned in Vedic, Upanishadic, the later puranic(old) and smriti
literature. Paragraph 3 of the Code of Ethics of the Medical Council of India says: I will maintain
the utmost respect for human life from the time of conception.

The Supreme Court has said that the right to privacy is implicit in Article 21 of the Constitution
and a right to abortion can be read from this right.

The Medical Termination of Pregnancy Bill was passed by both the Houses of the Parliament
and received the assent of the President of India on 10th August, 1971. It came on the Statute
Book as the "The MTP Act, 1971". This law guarantees the Right of Women in India to
terminate an unintended pregnancy by a registered medical practitioner in a hospital established
or maintained by the Government or a place being approved for the purpose of this Act by the
Government. Not all pregnancies could be terminated.

Section 3 of the said Act, says that pregnancy can be terminated:

(1) As a health measure when there is danger to the life or risk to physical or mental health of
the women
(2) On humanitarian grounds - such as when pregnancy arises from a sex crime like rape or
intercourse with a lunatic woman, etc. and
(3) (3) Eugenic grounds - where there is a substantial risk that the child, if born, would suffer
from deformities and diseases.
It is submitted that a decision as to abortion may be entirely left with woman provided
she is sane and attained majority. Only in cases where an abortion may affect her life, her
freedom may be curtailed. All other restrictions on the right to abortion are unwelcome.
True, a woman's decision as to abortion may depend upon her physical and mental health
or the potential threat to the health of the child. Apart from these reasons, there are also
various important factors. She or the family may not be financially sound to welcome an
 addition. It may be a time when she wants to change her profession, which requires free
time and hard work. Her relationship with the husband may virtually be on the verge of
collapse and she may prefer not to have a child from him, for it may possibly affect a
future marriage. All these factors are quite relevant and the Indian statute on abortion
does not pay any respect to them. The law thus is unreasonable and could well be found
to be violative of the principles of equality provided under Article 14 of the Constitution.
Is it desirable to pay compensation to woman for all her physical and mental
inconveniences and liabilities, which arises in that context? Finally, it may be noted that
the M.T.P. Act does not protect the unborn child. Any indirect protection it gains under
the Act is only a by-product resulting from the protection of the woman.

Case laws in this regard:

D. Rajeswari vs State of Tamil Nadu And Others

The case, is of an unmarried girl of 18 years who is praying for issue of a direction to terminate
the pregnancy of the child in her womb, on the ground that bearing the unwanted pregnancy of
the child of three months made her to become mentally ill and the continuance of pregnancy has
caused great anguish in her mind, which would result in a grave injury to her mental health, since
the pregnancy was caused by rape. The Court granted the permission to terminate the pregnancy.

Dr. Nisha Malviya and Anr. Vs. State of M.P:

The accused had committed rape on minor girl aged about 12 years and made her pregnant. The
allegations are that two other co-accused took this girl, and they terminated her pregnancy. So,
the charge on them is firstly causing miscarriage without consent of girl. The Court held all the
three accused guilty of termination of pregnancy which was not consented by the mother or the
girl.

Murari Mohan Koley vs The State 2003

In this case, a woman wanted to have abortion on the ground that she has a 6 months old
daughter. She approached the petitioner for an abortion. And the petitioner agreed to it for a
consideration. But somehow the condition of the woman worsened in the hospital and she was
shifted to another hospital. But it resulted in her death. The abortion was not done.

Shri Bhagwan Katariya And Others vs State of M.P:

Abortion without mother’s consent 2000.The woman was married to Navneet. Applicants are
younger brothers of said Navneet while Bhagwan Katariya was the father of said Navneet. After
the complainant conceived pregnancy, the husband and the other family members took an
exception to it, took her for abortion and without her consent got the abortion done.
The Court opined that if we refer Section 3 of the Medical Termination of Pregnancy Act, 1971,
a doctor is entitled to terminate the pregnancy under particular circumstances and if the
pregnancy was terminated in accordance with the provisions of law, it must be presumed that
without the consent of the woman it could not be done. Present is a case where a permanent scar
has been carved on the heart and soul of the woman by depriving her of her child. And the
Doctor will be liable.

Right to Abortion of The Mother Vs Right to Life of The Unborn

Many countries in which abortion is legal require that certain criteria be met in order for an
abortion to be obtained, often, but not always, using a trimester-based system to regulate the
window in which abortion is still legal to perform. In this debate, arguments presented in favor of
or against abortion focus on either the moral permissibility of an induced abortion, or
justification of laws permitting or restricting abortion. Arguments on morality and legality tend
to collide and combine, complicating the issue at hand. Abortion debates, especially pertaining to
abortion laws, are often spearheaded by advocacy groups belonging to one of two camps. Most
often those in favor of legal prohibition of abortion describe themselves as pro-life while those
against legal restrictions on abortion describe themselves as pro-choice. Both are used to indicate
the central principles in arguments for and against abortion: "Is the fetus a human being with a
fundamental right to life" for pro-life advocates, and, for those who are pro-choice, "Does a
woman have the right to choose whether or not to have an abortion"
Arguments Against Abortion

Following are the arguments which favor prohibition of abortion by the pro-life activists

The issue of the fetus' life, which raises the question of whether one person's desire for autonomy
can extend to ending another's existence.

 The killing of innocent is a crime and the fetus is also an innocent life.
 Many women suffer significant emotional trauma after having an abortion.
 There is also some evidence that having an abortion may increase a woman's risk of
breast cancer in later life. Some other complications include damage and/or infection to
the uterus and the Fallopian tubes making a woman infertile. Menstrual disturbances can
also occur.
 Aborting fetuses because they may be disabled sends an implicit message of rejection to
people with disabilities.
 Another argument is that an embryo (or, in later stages of development, a fetus) is a
human being, entitled to protection, from the moment of conception and therefore has a
right to life that must be respected. According to this argument, abortion is homicide.

Arguments in Favor

Following are the arguments in favor of legalizing abortion:

 The first argument is of Bodily Sovereignty. Each woman has the sole right to make
decisions about what happens to her body - no one should force her either to carry or
terminate a pregnancy against her will.
 Most abortions are carried out on the grounds of safeguarding the woman's mental health.
 Other are situations where abortions are done to safeguard the life of a fetus, as it would
involve risk if pregnancy is carried, it might damage the fetus resulting in danger to the
life of the mother.
 If abortion is banned, or just more restricted, we would return to the days of 'back-street
abortions'. In the past this has been accompanied by wild claims of the risk to women's
health from these procedures. The women resort to some unhygienic measures to abort
the fetus.
  Act of performing an abortion to save the mother's life when occurs, however, the
rationale is not that the fetus is seen to have less value than the mother, but that if no
action is taken both will die. Aborting the fetus at least saves the mother's life.
 If suppose abortion is banned, a woman does not want to carry her pregnancy, she would
carry it and then abandon the new born child. This would be more dangerous to the life of
the baby. Thus, it is better to terminate the pregnancy at an earlier stage.

Although in ancient and primitive times there were widespread practices of abortion and
infanticide among savage, semi-civilized and even sophisticated races, the later period provided
a better status to the unborn children. This is evident from the punishment and compensation
provided in Old Testament for hurting a pregnant woman. The unborn was treated as equal to
human being at least for the purposes of its protection. But as times have brought about
revolutionary changes, each person has a right to bodily sovereignty and Human rights
instruments protect such rights internationally. Thus, it becomes important to secure the right to
abortion to every woman.