Medical Termination of Pregnancy: A View From the Lens of Humanitarianism
Author: Gopalakrishnan R R, SASTRA School of Law
Abstract
Feminism has gained a global momentum. Various movements and legislations are helping place women and men in the same societal footing. Thanks to social media and the increasing open mindedness of the society, social taboos against women are being shed and the problems faced by them are brought to light more often than not. Termination of pregnancy is one such practice which is gaining a slow, yet gradual global recognition.
ABORTION: A PERSPECTIVE
As the scope of human rights widened worldwide, the prominence of developing this legal domain heightened. Right to life has evolved to include a right to privacy, a right to live a dignified life and right to make choices etc. It also includes the right to make ‘reproductive choices’ and a right to medical care. The right to make reproductive choices has its root in the Indian Supreme Court decision of Suchita Srivastava v. Chandigarh Administration[1], while the right to medical care was propounded in Parmananda Katara v. Union of India.[2]
Abortion is one of the most indispensible, yet the most disregarded human right. Abortion is the ending of pregnancy by medically removing the embryo or the fetus before it can survive outside the uterus. It is resorted to if either the mother or the fetus cannot survive the pregnancy, or in case the pregnancy is unplanned. Unplanned pregnancies are the result of either failure of contraception or unprotected intercourse. It is avoid unintended childbirth from unplanned pregnancy that a strong and woman-centric abortion law is the need of the hour. Unintended pregnancy can result in mental and physical stress for the woman, and hence they resort to medical termination of pregnancy. Due to the void and restraint in legally carrying out abortion, they resort to abort the fetus unsafely. Unsafe abortion is when abortion is carried out by unqualified persons in unqualified environment. Since most of the countries do not have a liberal abortion law, or the law is absent altogether, ‘unsafe abortion’ is widely in practice. Another area of concern is the practice of sex-selective abortion, which is widespread in countries like Bangladesh and India.
Reproductive health is broadly defined to include all matters relating to the well being of the reproductive system and its functions and processes.[3] It is envisioned that every sexual intercourse should be free of coercion and infection, every pregnancy should be intended, every childbirth should be healthy.[4] Freedom to exercise reproductive rights also include right to make a choice regarding sterilisation on the basis of informed consent, free from any coercion.[5]
The Centre for Reproductive rights has categorised countries into five heads based on the stringency of abortion law. We shall look at the same for a global perspective on the where abortion law stands with regard to liberalism. The Centre for Reproductive rights categorized countries into heads where:
Abortion is prohibited altogether:
Egypt, Iran and another twenty six countries fall under this head. Ninety million women (approx.), who live in these countries, have zero access to legal abortion. This is the case in most countries with a significant prevalence of terrorism.
Abortion is allowed only to save the woman’s life from danger.
Thirty nine countries including the likes of Afghanistan, Brazil and Mexico, permit abortion in the only circumstance that the woman’s life can be saved only by terminating the pregnancy.
Abortion is allowed to preserve the health of the woman.
Majority of the African continent, Pakistan and Thailand have a system in which not only when the woman’s life is in danger, but also when significant harm can be caused to her health if she carries on with the pregnancy, permits abortion.
Abortion is legal based on social and economic fronts.
In these countries, including Japan and India, abortion is more of a social issue than a legal one. Whether or not abortion is allowed solely depends on the social standing of the woman in question, and her personal and social capacity to carry on with the childbirth.
Abortion on request
Around 67 countries worldwide, comprising 570 million women of reproductive age, permit abortion on request. This is so in most of the European countries. The law in these countries has recognised the importance of the right to make reproductive choices, and also the mental aspects of going through an unplanned pregnancy.
The landmark American decision of Roe v. Wade[6] held that regulation of abortion by the state was unconstitutional. It violates a number of rights of the woman including the right to life, right to privacy, right to health, and right to reproductive choices. This forms the basis of what is known as ‘pro-choice’ argument related to abortion.
Soon after Roe v. Wade, a new ‘heartbeat’ bill was proposed. The bill proposed that abortion should be made illegal as soon as the embryonic heartbeat can be diagnosed. This forms the base of what is called the ‘pro-life’ argument. Let us take a look at it in some detail.
THE PRO-CHOICE AND PRO-LIFE DEBATE
The point of debate between the pro-choice and pro-life is; who is entitled to right to life? Is it the woman who wants to terminate pregnancy, or is it the fetus?
As far as supporters of ‘pro-choice’ are concerned, the pregnant woman should be calling the shots regarding abortion. The choice between carrying on the pregnancy and terminating it is within her right to life and right to reproductive choice. The argument made here is that the fetus, whether formed unexpectedly or not, is a part of the woman’s body, and hence she has the absolute to decide over the pregnancy. Most unplanned pregnancies, which rarely happen, are a result of either failure of contraceptives or ignorant unprotected intercourse. As a result, the family may undergo psychological and financial strain. For a fetus to develop both mentally and physically, the mother’s mental state as well as physical environment matter. Given the parent’s state of mind, the fetus will not have a healthy development.
So legalising abortion will have a direct positive effect on the woman, and an indirect effect on the wellness of the fetus.
When it comes to ‘pro-life’ argument, they prioritise the right to life of the fetus over that of the woman’s. Pro-life supporters consider abortion to be synonyms with murder. Across the world, there are certain rights for a child while still inside the mother’s womb. This is the reason why many countries have a gestational period, subject to which abortion is allowed. The pro-lifers opine that what one’s autonomy leads to is another’s death. Abortion should be permitted only if either of the mother’s life or the fetus’ life is in imminent danger. Otherwise, abortion is unethical, cruel and inhuman. It is exciting to note that there is a whole new body of law under development in sync with the ‘pro-life’ stance; fetal rights!
CONCLUSION
It is true that there is an increasing positive global response to the problem. But the response has been only with regard to the physical and societal aspects of terminating pregnancy. The mental aspect, which is not much talked about, also has a very important place when it comes to legislating on abortion. In Roe v. Wade[7], it has been held that statutes which criminalises abortion, is most likely to violate a woman’s constitutional right to privacy.
We reach a crossroad where there needs to be a balance between the pro-choice argument, as well as the pro-life argument. As much as the life of the woman is important, so is the life of the unborn fetus. There is a need for a global legislation which aims at a rational balance between the physical, mental and social aspects of medical termination of pregnancies.
The need of the hour is widespread propagation regarding what are the effects and outcomes of abortion to the society as a whole. The challenge is to remove the social taboo about abortion prevalent in many societies. As soon as the society sheds its taboos, significant developments can be made, which ultimately benefit the society at large. Some changes that can be made are:
- Legalising abortion irrespective of gestational period, subject to the health of the woman.
- The public must be educated on how to prevent unwanted pregnancy and on the pros and cons of abortion.
- Harsh consequences must follow if unsafe abortion is carried out.
- Legal and responsible abortion clinics should be established.
- Latest technological advancements should be made available to the clinics, together with financial aid.
- Abortion help line must be initiated for woman who are pressurised by their families to carry on with a pregnancy against their personal will.
- High school curriculum must be modified to include the reality about abortion, and also to avoid teenage pregnancies.
[1] A.I.R. 2010 S.C. 235.
[2] A.I.R. 1989 S.C. 2039.
[3] United Nations (1995), Report of the International Conference on Population and Development, Cairo, 5-13 September 1994.
[4] Tsui, Amy O., Judith N. Wasserkit and John G. Haaga, edition, (1997).
[5] Devika Biswas v. Union of India.
[6] 410 U.S. 113.
[7] Ibid at 6.
La Senatus Scriptors 