A detailed analysis of abortion laws and practices all over the world with a key emphasis on Abortion Laws in India - supplemented with real life case studies and legal dilemmas faced by the indian judiciary.
Abortion laws in India - A comparative analysis of India with the world (case study method)
1. Abortion Laws in India
A STUDY OF INDIAN LAWS IN THE CONTEXT OF THE WORLD - 3 CASE STUDIES
2. “
”
Abortion is when a pregnancy is ended so
that it doesn't result in the birth of a child.
Sometimes it is called 'termination of
pregnancy'.
- BPA
ABORTION METHODS (within 24 week period with certain exceptions)
Medical or non-surgical abortion – via contraceptive pills
Surgical abortion – minor surgical procedure to terminate pregnancy
3. ABORTION CARE
Before Abortion
Confirmed pregnancy test
Talk with a counsellor
Consult a doctor on termination options
Weigh the risks and complications
Sign a consent form (parental / spousal)
Post Abortion
Check for side effects
Symptoms such as Vaginal bleeding and
cramps
Check for complications and infections
Emotional support required
Avoid sexual intercourse for a few days
4. ABORTION
Freedom of choice – Pro choice lobby
Personhood begins at birth not
conception
Right to bodily freedom
Woman must have reproductive choice
Medically Safe – less psychological trauma
Enables aborting abnormal foetus
Justified means of population control
Right to life (foetus) – Pro life lobby
Life begins at conception; Abortion is
murder
Abortion is not contraception
Adoption as an alternative to abortion
Abortion goes against gods wish
Aborting abnormal foetus is
discrimination
Mother must take responsibility for the
pregnancy
ANTI - ABORTIONV/S
5. ETHICS OF ABORTION
GOVERNMENT
• Population control
• Reducing family
size
• Standard of living
• reducing poverty
• Crime control
SOCIETY
• Unwed mothers
• Religious
perspectives – sin
in the eyes of god
MOTHER
•Health and mental
well-being
•Financial concerns
•Young mother/
teenage pregnancy
•Capacity for care
CHILD
• Genetic defects
• Physical disabilities
• Mental defects
• Result of rape,
incest or child
abuse
7. CONTEXT
The practice of abortion—the termination of a pregnancy—has been
known since ancient times. Various methods have been used to perform
an abortion, including the administration of abortifacient herbs, the use
of sharpened implements, the application of abdominal pressure, and
other techniques.
Abortion laws and their enforcement have fluctuated through various
eras. In many western countries during the 20th century various pro-
abortion groups, were successful in having abortion bans repealed. While
abortion remains legal in most of the West, this legality is regularly
challenged by anti-abortion groups.
8. PRE-MODERN ERA
The Vedic and Smrti laws of India reflected a concern with preserving the male seed of the three
upper castes; and the religious courts imposed various penances for the woman or
excommunication for a priest who provided an abortion. This is imposed only on a woman who
procures an abortion against her husband's wishes. The first recorded evidence of induced
abortion is from the Egyptian Ebers Papyrus in 1550 BC.
Many of the methods employed in early and primitive cultures were non-surgical. Physical
activities like strenuous labour, climbing, paddling, weightlifting, or diving were a common
technique. Others included the use of irritant leaves, fasting, bloodletting, pouring hot water onto
the abdomen, and lying on a heated coconut shell. Physical means of inducing abortion,
including battery, exercise, and tightening the girdle were still often used as late as the Early
Modern Period among English women.
Archaeological discoveries indicate early surgical attempts at the extraction of a foetus; however,
such methods are not believed to have been common, given the infrequency with which they are
mentioned in ancient medical texts.
9. MODERN ERA
19th-century medicine saw tremendous advances in the fields of surgery, anaesthesia,
and sanitation. Social attitudes towards abortion shifted during this period under the influence
of Victorian morality, and abortion, especially in the English-speaking world, was made illegal.
There were a number of factors that contributed to this shift in opinion about abortion in the
early 19th century. In the United States, where physicians were the leading advocates of
abortion criminalization laws, advances in medical knowledge played a significant role in
influencing anti-abortion opinion. Ideologically, the Hippocratic Oath and the medical
mentality of that age to defend the value of human life as an absolute, also played a significant
role in moulding opinions about abortion.
From 1870 there was a steady decline in fertility in England, linked not to a rise in the use of
artificial contraception but to more traditional methods such as withdrawal and abstinence. Of
course, women did find themselves with unwanted pregnancies. Abortifacients were discreetly
advertised and there was a considerable body of folklore about methods of inducing
miscarriages.
10. ABORTION HISTORY IN ASIA
CHINA – In the early 1950s, the Chinese government made abortion illegal, with punishments
for those who received or performed illegal abortions written into the law. As the decade went
on, however, the laws were relaxed with the intent of reducing the number of deaths and
lifelong injuries women sustained due to illegal abortions as well as serving as a form of
population control.
JAPAN - Japan is known today worldwide for its acceptance of abortion. It is estimated that
two-thirds of Japanese women have an abortion by age forty, partially due to former
government restrictions on contraceptive pills on 'public hygiene grounds'.
THAILAND – There was intense public debate throughout the 1980s and 1990s over legal
abortion reform. These debates portrayed abortion as un-Buddhist and anti-religious; abortion
opponents ultimately labelled it as a form of Western corruption that was inherently anti-Thai
and threatened the integrity of the nation. Despite this, in 2006, abortions became legal in cases
of rape or foetal impairment. Mental health also became a factor in determining the legality of
an abortion procedure.
12. LIBERAL ABORTION LAWS
USA
Roe V/S Wade (1973)
• Legalized abortion in according
to trimester system
• Recognized privacy & liberty
interests of women
Planned Parenthood V/S
Casey (1992)
• Contested informed, spousal
consent
• 24 hr. - waiting period and
parental consent
• Undue burden – obstruction of
women's constitutional right to
abortion
UK
Abortion Act 1967
• Legalized abortion (not on
demand) – before 28 weeks
• Criterion: mother & child’s
health and mental state, socio
economic conditions
• Doctor’s ”good faith”
1990
• Viability shift from 28 to 24
weeks
CANADA
The Criminal Law Amendment Act,
1968-69
• Prior to 1969 all abortion was illegal
in Canada.
• Abortion in Canada is legal at all
stages of pregnancy and is governed
by the Canada Health Act
• In 1988, the Supreme Court of
Canada ruled that the existing laws
were unconstitutional and struck
down the 1969 law.
• Then the governing Progressive
Conservatives attempted, but failed,
to pass a new abortion law, and since
then Canada has had no criminal laws
governing abortions.
13. STRINGENT ABORTION LAWS
• El Salvador – abortion is illegal on all grounds(12 years jail) - miscarriage (40 years jail
on aggravated murder)
• Chile – illegal abortion (upto 5 years jail) – reforms in place
• Dominican republic – illegal abortion – 2-3 years jai for the mother and up to 10 years
jail for the medical professional
SOUTH
AMERICA
•Angola, Congo, Egypt – Abortion is illegal – except to save woman’s life
•Nigeria, Sudan, Malawi – abortion is legal only for health reasons
•Nicaragua – Abortion is prohibited even if life is at risk – (2- 5 years jail)
AFRICA
• Malta - Only country in EU where abortion is illegal on all grounds – even in case of rape, foetal
impairment, etc.
• Ireland - Strictest Abortion laws in Europe – Only legal on medical grounds- (up to 14 years jail)
EUROPE
14. ABORTION
LAWS IN
INDIA
As per Medical Termination of
Pregnancy Act 1971
It extends to the whole of India except the
State of Jammu and Kashmir.
Aims to improve the maternal health scenario
and legalizes abortion services.
De-criminalizes the abortion seeker and
promotes safe abortion services.
Offers protection to medical practitioners who
otherwise would be penalized under the IPC
(sections 315- 316)
15. LEGALITIES OF ABORTION IN INDIA
A Pregnancy may be terminated by a registered medical practitioner,—
A. where the length of the pregnancy does not exceed 12weeks,
B. where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, if not
less than two registered medical practitioners are, of opinion, formed in good faith, that—
i. The continuance of the pregnancy would involve a risk to the life of the pregnant woman
or of grave injury to her physical or mental health;
ii. There is a substantial risk that if the child were born, it would suffer from such physical or
mental abnormalities as to be seriously handicapped.
16. LEGALITIES OF ABORTION IN INDIA
A Pregnancy may be terminated by a registered medical practitioner,—
C. A pregnancy to have been caused by rape/ incestuous bond.
D. A result of failure of any contraceptive device or method used by any married woman or
her husband.
i. No pregnancy of a woman, who has not attained the age of 18 years, or is a mentally
ill person, shall be terminated except with the consent in writing of her guardian.
ii. No pregnancy shall be terminated except with the consent of the pregnant woman.
E. No termination of pregnancy shall be made in accordance with this Act at any place
other than— a hospital established or maintained by Government.
17. PUNISHMENT FOR ILLEGAL ABORTION
An offence punishable with rigorous
imprisonment for 2-7 years for –
The termination of pregnancy by a
person who is not a registered medical
practitioner
Whoever terminates any pregnancy in a
Government recognized place.
19. CASE STUDY - 1
Chandigarh, India, Year - 2017 - 10 year old denied abortion
A 10-year-old Indian girl rape victim, denied an abortion, gave birth to a baby girl.
As is the case with the vast majority of reported rapes in India, the rapist was relative of the
victim. In this particular case, it was the girl’s uncle, who had allegedly raped her over a period
of six to seven months. (Pregnancy arising from Rape and incest)
The Indian Supreme Court heard the family’s plea for an abortion, but a medical panel
deemed the procedure to be life-threatening to the girl, forcing the court to deny the abortion.
This was because she was 35 weeks pregnant, according to the Hindustan Times.
20. In light of such a high risk delivery, she was admitted in the hospital one week prior to
delivery and was under large team of specialists, including three gynecologists, two
pediatricians, two psychologists, a dietitian, and a cardiologist.
The baby was deemed premature and only weighed 2.2 kg, BBC reported. She was delivered
in a hospital in Chandigarh, in northern India, at 9:22.
Neither the girl nor the family saw the newborn baby; Dr. Dasari Harish, head of the delivery
team added that the family doesn’t want anything to do with the baby.
The baby was kept in the hospital’s neo-natal Intensive Care Unit for a few days before the
hospital put her up for adoption.
21. CASE STUDY - 2
The Nikita Mehta case – Mumbai, Year - 2008
An educated, middle-class woman with a supportive husband.
She wanted to terminate a pregnancy, which had a high probability of resulting in a
miscarriage, or the birth of a child with a serious heart defect.
Niketa’s pregnancy had advanced beyond the 20 weeks.
Rather than resort to an illegal abortion, Niketa and her husband filed a petition in the
Mumbai High Court, asking for permission for an abortion, in the 23rd week.
Niketa failed to obtain a favourable judgement from the court.
22.
23. PERSPECTIVES TO BE CONSIDERED
MOTHER FATHER CHILD COURT
Mental health
Can they
financially
support this
child?
Mental health
Wife’s life at risk
Can they
financially
support this
child?
Might not survive
the extensive
surgery
Even if the
surgery works,
what kind of life
will the child
have?
The law does not
permit abortions
at this stage
Are disability
rights being
threatened or
ignored?
24. CASE STUDY - 3
Chhattisgarh, India, Year - 2016
A 23 year old tribal woman from Jashpur district in Chhattisgarh raped by her
boyfriend.
She was denied an abortion by various Chhattisgarh health authorities. Travelling from
hospital to hospital she missed the legal deadline for abortion.
She was denied a speedy abortion even though her case should have fit the bill for
abortion.
She was tied in bureaucratic knot for the same.
Jashpur is a remote tribal district with few facilities.
For a second trimester abortion doctor needs to perform a minor surgery to remove the
foetus.
25. She was denied abortion on the platform on not having expert doctors to perform the surgery.
She was sent from one medical center to another for abortion.
By this time, the woman had crossed 20 week limit which later forced her to get in touch with
activist in Bilasaspur
Justice Mahindra Mohan Srivastava, in his order, noted that the girl was financially dependent
on her brothers and not very educated
Taking into the account the interest our of the survivor alone the court directed the doctors to
terminate the pregnancy
27. ABORTION MALPRACTICES
The definition of female feticide is abortion of a female fetus. An ultra-sonography
help determine abnormalities in the fetus but sadly its misused to find out the sex of
the fetus and abort it if it is a girl.
Prenatal sex determination was banned in India in 1994( under the Pre-conception
and Prenatal Diagnostic Techniques(Prohibition of Sex Selective) Act).
The killing of female fetus has left the Indian sex ratio in a skew. 940 females per
1000 males according to Population Census of 2011.
Home Abortion – the misuse of medical termination of pregnancy
28. CAUSES OF FEMALE FOETICIDE
Dowry
Pressure from family
Illiteracy & poverty
Culture
29. Occasions
when the
law has
been tough
In July 2012, 12 doctors were
suspended for conducting sex tests in
Jaipur.
In August 2012 three in-laws were
arrested for torturing a pregnant
woman to undergo a Sex
Determination procedure in Kolkata.
REAL LIFE INSTANCES
