Right To Abortion Vis-À-Vis Right Of Unborn Foetus
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
Updated:
RIGHT TO ABORTION VIS-À-VIS RIGHT OF UNBORN
FOETUS
Dr. Omlata Raj, Guest Faculty, University of Allahabad, Lucknow
ABSTRACT
The right to life is the basic human right and the absence of this right renders all other rights useless, worthless, and meaningless. When one is deprived of the right to life is also automatically deprived of all other human rights. These rights are available to all human beings, the issue here is whether human embryos and foetuses also qualify for this right. The right to abortion is the other controversial subject involving this fundamental freedom. Therefore, the abortion debate is like two sides of the same coin. One side focuses on the independence, choice, dignity, and privacy of women. The other focuses on the unborn child's right to life and liberty. Both sides are justified in their own ways. In recent scenarios this issue is a much-debated issue whether a human foetus has a right to life, and, if so, whether the rights of the mother ever override the foetus’s right.
Hence, there is a need to resolve the conflict between the two i. e. , a pregnant woman’s personal liberty and right to destroy the foetus in her womb under any circumstances at any time. The other being the claim of the state to protect the right to life of the unborn based on the growth of scientific knowledge and recognition of the foetus as a living person within the womb. In this Chapter, we will study the legal provisions which affect the right of a woman to abort the child and the right of an unborn child to birth.
Introduction Abortion1 is an issue concerned with various matters such as morality, ethics, religious beliefs, and legal and women’s rights. 2 Today, some 50 to 60 million abortions occur every year throughout the world, up to half of them illegal and dangerous, killing about half a million women annually. However, it is scandalous that such a basic right as the right to have a child with planning or preventing the birth of a child has been denied to women. 3 Abortion or miscarriage means the spontaneous or induced termination of pregnancy before the fetus is independently viable, which is usually taken as occurring after at 28th week of conception. 4Abortion is an issue that has been discussed extensively worldwide it has become controversial all over the world.
Everyone is in dilemma whether the mother has the right to terminate her pregnancy at any time she wishes or the unborn child has the right to life. 5 Expanding the horizons of ‘personal liberty, the Court held that... a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article
21.6 In this case, Court relied on American case law, particularly, the celebrated case of Roe
v. Wade7 where BLACKMUN J. observed that: The right of personal privacy includes the abortion decision, but this right is not unqualified and must be considered against important state interests in regulation.8 Undoubtedly, the State has a compelling interest in protecting life of an unborn child9. 1 Abortion is termination of pregnancy by removal or expulsion from the uterus a fetus or embryo, resulting in or causing its death. 2 Trishna Rao & Ojas Gole, Right Of Abortion Versus Right To Birth- A Legal Perspective, 2 INT’L Journal Of Research And Analysis (2014) 3 AIR 1997 Journal Section, 129 (129) in Trishna Rao & Ojas Gole, Right Of Abortion Versus Right To Birth- A Legal Perspective, 2 INT’L Journal Of Research And Analysis (2014)
4 B.v. Sbrahmanyam, Modi’s Medical Jurisprudence and Toxicology (22 ed. 2001).
Sai Abhipsa Gochhayat, Understanding abortion right under indian constitution, manupatra. com/roundup/373/Articles/PRESENTATION. pdf. 6 Chandigarh Administration v. Nemo, In the High Court of Punjab and Haryana, CWP No. 8760 of 2009, order dated 17-7-2009. Section 3(2) of the Act except for the circumstances mentioned in Section 5(1) of the Act prohibits termination of pregnancy after 20 weeks. There are specific considerations put in the Act following which only can the pregnancy be terminated. It is generally believed that abortion after passage of 20 weeks is potentially dangerous for both the mother and the unborn child.
The High Court disregarded these caveats and directed abortion merely on the basis of the psychosocial disability of the woman, a condition which is relevant only insofar as consent is concerned which as would be discussed later is not beyond the pale of suspicion in Ajey Sangai, Promise of reproductive autonomy: does suchita srivastava walk the talk? , Nalsar Student Law Review, 2012.
7 410 U.S. 113 (1973)
8 Ibid
9 Ibid
Abortion is condemned in almost every religion, but despite that, a question arises about whether the mother has the right to terminate her pregnancy at any time she wishes or the unborn child has a right to life. Ronald Dworkin made a detailed study about the right of abortion and he did not accept the extreme view which prohibits abortion, the foetus is a complete moral person from the moment of conception, hence unborn has right to live. According to Ronald Dworkin the fetus has no interest before 3rd trimester. A foetus cannot feel pain until late in the pregnancy because its brain is not developed since then. The scientists have agreed that the foetus’s brain will sufficiently develop to feel pain from approximately the twenty-sixth weeks.
10 Meaning of Abortion The Black’s law dictionary11 defines the term abortion as: ‘The artificial or spontaneous termination of a pregnancy before the embryo or foetus can survive on its own outside a women’s uterus, simply it means that ‘the child in the womb of a mother is not being allowed to come out in the world. Abortion or miscarriage means the spontaneous or induced termination of pregnancy before the foetus is independently viable, which is usually taken as occurring after the 28th week of conception. Medically, abortion refers to the removal of the ovum within the first three months of pregnancy, miscarriage, removal of the foetus between the fourth and seventh month, and premature births to the removal of a baby after the seventh month but before full term.
Legally, miscarriage, abortion and premature labour are now accepted as synonymous terms, indicating any termination of pregnancy at any stage before confinement. 12 Abortion may be classified into various categories depending upon the nature and circumstances under which it occurs. For instance, it may be either, (i) natural; (ii) accidental; (iii) spontaneous; or (iv) artificial or induced abortion. Abortions falling under the first three categories are not punishable, while induced abortion is criminal unless exempted under the law. 13 Natural abortion is a relatively common phenomenon that can happen for several causes, including poor health, a mother's generative organs being defective, shock, fear, or joy, among others.
Abortion that was unintentional 10 Trishna Rao & Ojas Gole, Right Of Abortion Versus Right To Birth- A Legal Perspective, 2 INT’L Journal Of Research And Analysis (2014)
11 2nd Edition.
12 K. MATHIHARAN AND AMRIT K. PATNAIK (EDS.), MODI’S MEDICAL JURISPRUDENCE & Toxicology 1013 (Lexis
Nexis Butterworth, New Delhi, 2006).
13 K. D. GAUR, CRIMINAL LAW & CRIMINOLOGY 209 (Deep & Deep Publication, New Delhi, 2002).
occurs frequently as a result of trauma from accidents. Spontaneous abortion sometimes may take place because of pathological reasons, where pregnancy cannot be completed and the uterus empties before the maturity of foetus. This could occur as a result of physiological issues or a toxic deposition that hinders embryo development and pregnancy growth. 14 Criminal abortion is destruction and expulsion of the foetus unlawfully and the wrongdoer is punishable according to criminal law. It is generally induced between second and third months of pregnancy, but occasionally between the fourth and fifth months of pregnancy when the woman is certain of her condition.
15 In India, induced abortion is defined in law as any abortion, which does not come under the rules of the Medical Termination of Pregnancy Act 1971, although performed by qualified doctors, and the doctors are liable for prosecution and punishment. 16 Methods Of Abortion The forms of abortion17 include the following: - • The Abortion Pill- Oral Mifepristone (Mifeprex) and oral misoprostol (Cytotec),18 when taken in the early stages of pregnancy, causes a miscarriage by inhibiting the hormone necessary for a fertilised egg to implant. • Vacuum Aspiration Abortion- This surgical abortion is done early in the pregnancy up until 7 weeks after the woman’s last menstrual period. A tube is inserted through the cervix up into the womb. The tube is used to suck out the contents of the womb, thereby destroying the foetus.
• Dilation and Curettage- For dilation and curettage (D and C), conscious sedation or a general anaesthetic is usually used. (With conscious sedation, people can respond to directions but do not feel pain. ) Then, a speculum is used to spread the walls of the vagina, and the cervix is widened (dilated) using thin rods of increasing size.
14 R.M. JHALA AND V.B. RAJU, MEDICAL JURISPRUDENCE 426-28 (Eastern Book Company, Lucknow,1990).
15 See Supra note 13
16 Ibid
17 JONATHAN HERRING, MEDICAL LAW AND ETHICS 286-287 (Oxford University Press, New York, 2010).
Mayo clinic, https://www.mayoclinic.org/tests-procedures/medical-abortion/about/pac-20394687?p=1 assessed on 23 feb 2022.
Intact Dilation and Extraction (‘partial birth abortion’)19 – The foetus is extracted into the vagina and the contents of the skull are sucked out. This kills the foetus. The body is then removed. • The ‘Morning after Pill’ and Intra Uterine Device- They are sometimes listed in medical writings as forms of abortion, but under the law they would be contraception rather than abortion. Ethical issues involved in unborn and the right of abortion The term abortion in law is used to denote purposeful and deliberate expulsion of the foetus i. e. induced abortion. 114Since inspection of United Nations reproductive freedom is basic human right. The moral debate regarding abortion focuses on two distinct issues: (1) whether a human foetus has a right to life, and, if so, (2) whether the rights of the mother ever override the fetus’s right.
Foetus Right to Life The majority of Roman Catholic Church20 supports the right to life of foetus i. e. pro-life. The pro-life supporters believe that as human being the right to life, so should the foetus. They believe that the foetus can be called a human being immediately after the conception itself and they also believe that as a foetus has been given the same status as the human being, therefore if abortion would be allowed that they would be forfeiting their right to life. 21But the foetus’s right to life usually draw on the concept of moral personhood. What is the criterion of moral personhood? Over the centuries philosophers and theologians have suggested many possible criteria for personhood. Perhaps it is simply life: if you’re alive, you have moral personhood.
Members of the Jain religion from India believe that all living animals’ even insects qualify as persons and thus have a right to life. Consciousness, sentience, selfawareness, rationality and the ability to experience pleasure and pain are the criteria of 19 Frances E. Casey , MD, MPH, Abortion an interruption of pregnancy, Virginia Commonwealth University Medical Center Last full review/revision (Feb 2022), https://www. msdmanuals. com/home/women-s-healthissues/family-planning/abortion (assessed on 15 June 2022). 20 All human life from the moment of conception and thought all subsequent stages is sacred because human life is created in the images and likenesses of god. Nothing surpasses the greatness or dignityof a human person....
if the person’s right to life is violated at the moment in which he is first conceived in his mother’s womb, an indirect blow is struck also at the whole moral order. - pope john Paul II in Washington, D. C. , Oct, 21Trisha, Supra note
personhood. The precise criterion of moral personhood is an on-going dispute. But regardless of which criterion we adopt, if a being exhibits the appropriate feature whether its life, consciousness, self- awareness, or human-like rationality then it is a moral person and, consequently, a rights holder. When we now ask does a fetus exhibit any of these qualities during any stages of development from zygote onwards? Even human zygotes are alive, and early stage embryos exhibit animal life. But in our part of the world, mere “animal life” isn’t a criterion of personhood that we adopt. As to consciousness and sentience, during the last trimester of pregnancy foetuses do demonstrate these features. But self-awareness and human-like rationality, fetuses do not have these features at any stage of development.
Thus, when considering the features that fetuses actually exhibit at various stages of development, they don’t have the ones that most of us would associate with personhood. 22 Right of Abortion Pro-choice advocates believe that abortion should be the choice of the women carrying the baby. They are of the opinion that the control over her body and the freedom to decide the course of her is critical to women’s civil rights. They believe that abortion is the private right and the government should not interfere with the life of citizen of its country. 23 The people advocating choice of women to be given importance argue that the foetus inside the body is her property and also does not begin until birth. Right to choose to have abortion is so essential to women’s lives that without this right, the women cannot exercise other fundamental rights guaranteed to them by constitution.
Right to abortion is been recognised under right to privacy which is the part of personal liberty. After the pronouncement in Roe v. Wade24 and the adoption of United Nations Convention on Elimination of all forms of Discrimination against Women, reproductive autonomy has been recognised as a right of every woman. 25 When we extend the contours of Article 21 of the Constitution, the Court situated ‘reproductive autonomy’ within the corpus of right to life and
22 James Fieser, Abortion From Moral Issues that Divide Us and Applied Ethics: A Sourcebook (2008)
https://www.utm.edu/staff/jfieser/class/160/5-abortion.htm.
23 Ibid
24 410 U.S. 113 (1973)
25 United Nations Convention on Elimination of all forms of Discrimination Against Women, 1981
personal liberty. When the woman has the liberty to conceive, it implies the liberty to terminate the pregnancy if she dislikes continuing with it which in turn breeds a new right to kill the fetus. But the right to kill in any manner cannot be inferred from the Statue, or when right to birth is recognized, it implies the absence of right to abortion which in turn imposes a duty on a woman to carry an unwilling child. If the women cannot choose to terminate unwanted pregnancy, she is denied the right to “control and possession” of her own body. There are so many illegal abortions done every day but many of them is to abort female child i. e. , for female foeticide and that too in family or any other pressure that is not her own choice. If the women can’t exercise the right to choose then her most sacred right and important possession is taken away.
Abortion is not only a women’s right, it’s a woman’s choice. 26 Killing of Foetus is a Sin In Davis v. Davis27, where a divorced wife and husband disputed on claiming the right on the Frozen Pre- embryos for implantation to have a child, the Judge decided that as a matter of law, human life begins at conception and the legal provisions governing a human being existing as embryo in vitro to be those of child custody law, dominated by the obligation to seek, protect and advance the best interest of the child. Since time immemorial the Indian law too treated the termination of pregnancy as an offence. According to Hinduism abortion or killing of fetus was considered a sin. According to Islam after a fetus is completely formed and given soul, abortion is considered to be ‘haram’ (forbidden). The same was expressed in terms of law in Section 312 of the Indian Penal Code (IPC).
28Abortion is permissible under IPC only in exceptional circumstances to save the life of the pregnant woman when the continuation of such pregnancy possesses danger to her life. It is allowed through surgical removal of child from the mother’s womb. Similarly, Section 3 of the M. T. P Act permits abortion in exceptional circumstances only when in the opinion of a doctor continuation of such pregnancy causes any mental or physical injury to the woman 26 JAMES QUINN, RIGHT OF AN UNBORN , 31 law and gender A quest for justice 612 ( Alfa publications, Delhi 2012).
27 FLR, 15 2097
28 Trisha, Supra note.
Thus the right to abortion is only a conditional one. There can be no abortion beyond 20 weeks of pregnancy. The Sate never sanctioned a blanket license to any woman or other person to kill the child in the mother’s womb. On the other hand it has imposed many restrictions on termination of pregnancy and thus protected the right of the unborn child to live. Protection of Foetus The American Supreme Court for the first time in Roe v Wade29recognized the woman’s right to terminate pregnancy. The Court found this right to be rooted in the constitutional right to privacy. In brief, the Supreme Court of America held that a woman’s right to terminate her pregnancy is such that the State may not prohibit abortion until the fetus reaches viability. But in a later case in William L. Webster et al v.
Reproductive Health Services et al30, the Supreme Court of America reversed its earlier judgment and upheld a Missouri Statue which declared that ‘the life of each human being begins at conception’, and that ‘unborn children have protectable interest in life, health and well-being. ’ The Court maintained that the State can pass any regulation of abortion on the grounds – one is to preserve and protect the health of pregnant woman, and the other is to protect the potential life embodied in the foetus. Prior to Webster the foetus had no ‘protectable interest’ until it had reached viability. Thus, the American Supreme Court recognized the right of the foetus ‘to grow and to be born’. A critical question is ‘does the abortion of a foetus amount to taking life of a human being’?
There is no satisfactory answer to the question ‘when does life come into being’. The recent judgments in the West which deals with legal protection of human life before birth disclosed that abortion of foetus is illegal and criminal because it amounts to taking life of an unborn child. Thus, it restrains the woman’s right to an abortion. Viability of Foetus One of the relevant questions is that when exactly life is commencing. To answer this question the term viable must understand. Viability means in general is “capacity for survival” under favorable conditions. The Life before birth in the mother’s womb is a psychological phenomenon. The American Supreme Court in Jane Roe v. Henry Wade31, has no doubt
29 Supra note 24
30 (1989)492 US 490
31 Jane Roe v. Henry Wade ,(1973)410 US 113.
denied a foetus to have a natural personality; but the Court did not, as it could not, deny the existence of life in it. Even though the Court ruled that the State’s interest in the foetus becomes compelling only when it becomes viable, it was not ruled that life in a foetus begins only from the stage of its viability. 32 It was unanimously held that the foetus having reached that period of parental maturity where it’s capable of independent life apart from its mother is a person. 33 It is said that at period between 25 to 28 weeks, a foetus actually is viable, that it begin to have life of its own or that it now has chance to survive. It has now been accepted by the Medical and the Psychological scientists that the foetus starts to have spontaneous growth and development from the very beginning which are the surest and universally accepted criteria of life.
34 It was unanimously held that a foetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person. 35 Balancing the Foetus’s Right to Life and Mother’s Right to Abortion It is agreed that a foetus has a right to life, but the abortion debate would not be over. Questions then arise about whether the mother's right of self-determination overrides the rights of the foetus. It is the mother's body which is affected by the pregnancy, and it is her life, health, and emotional state that may be drastically impacted. These factors carry at least some weight. For women reproductive rights are of utmost importance, because she is empowered to exercise such right freely it could be said that she is treated equally in the society.
36The most accepted alleviating circumstances concern pregnancies that result from rape and incest, and those in which the woman’s life is at risk. Occasionally, though, some abortion critics take the hard-line position that no extenuating circumstance overrides the foetus’s right to life, and thus all abortions are wrong. 37 Supreme Court in S. Said-ud-Din v. Commissioner Bhopal Das38awarded compensation to a child, who is adversely affected due to gas leakage, which was inhaled by her mother during her pregnancy. Child after its birth found symptoms including eruption of body and smarting of eye as well as breathlessness. Therefore, Supreme Court held that as an infant too was the
32 Ibid.
33 Ibid.
34 Roe, Supra note.
35 DAVIS , supra note.
36 Ibid
37 Ibid
38 S. Said-ud-Din v. Commissioner Bhopal Das, (97)11 SCC 460.
victim of the I Methyl Iso Cyanide poison, she is entitled to compensation. Various human right commissions also held that the stillborn child is entitled compensation. Even TPA recognises the right of stillborn and several provisions of IPC. Also provide for punishment by reason of hurt or birth or abortion with regard to stillborn child. 39 But giving compensation to unborn child does not mean that foetus is equated with the child. American philosopher Judith Jarvis Thomson argued that, even if we grant that foetuses have a fundamental right to life, in three specific situations the rights of the mother override the rights of a foetus. She makes her case drawing on three provocative thought experiments. • The first pertains to pregnancies that result from rape. 40 • The second thought experiment pertains to pregnancies in which the woman’s life is at risk.
• The third thought experiment involves pregnancies that result from contraception failure. Nevertheless, the larger point behind them is that there are many extenuating circumstances surrounding pregnancies in which the rights and interests of the woman may outweigh the rights of the foetus, even if we grant that the foetus has personhood. Arguments against Abortion Here are some following arguments by the pro-life supporters which favour the prohibition of abortion: • An Unborn human being is a person with a certain natural inherent capacity, who will function as a person momentarily, unborn are not potential persons but persons with much potential. 41 • According to some communities, abortion is not morally and ethically permissible. A
39 James, supra note
40 Judith Jarvis Thomson: A Defense of Abortion, 1 Philosophy & Public Affairs ( 1971).
41 Kriti Dwivedi, Medical Termination of Pregnancy Act, 1971: An Overview, available at:
www.legalservicesindia.com/articles/pregact.htm (visited on feb 6, 2018).
crime is committed when foetus is killed, and abortion causes great suffering to the unborn child in the mother womb. • After an abortion, many women experience severe emotional and mental distress. • There is some indication that having an abortion could make a woman more likely to get breast cancer in the future. In addition, a woman may become infertile if her uterus or Fallopian tubes are damaged or infected. Menstrual irregularities might also happen. • Aborting foetuses because they may be disabled sends an implicit message of rejection to people with disabilities. • Another argument is that an embryo at later stages of development is a human being from the time of conception and is thus entitled to protection and must have its right to life respected. This argument claims that abortion is homicide.
Arguments in Favour of Abortion Many people regard the right to control one's own body as a key moral right. If women are not allowed to abort an unwanted foetus they are deprived of this right. Here are some following women's rights arguments in favour of abortion are- • Each woman has the right to control her own body; no one should be forced to bear or end a pregnancy against their desire. Without the ability for women to manage their reproduction, there can be no equality. • Without unnecessary government intrusion we have the freedom to marry, start families, and make personal decisions about whether to have children or not. Therefore, Abortion is a personal privacy issue.
• If a woman is restricted from lawful aborting of the child, then she will have to resort to illegal abortion, thereby, causing many deaths as they are frequently performed by those who are not competent to do so. Compared to a married woman, an unmarried girl, in order to get rid of the product of conception from illicit intercourse, is even more
exposed to this kind of risk as there is a compelling factor to abort the child even by a non-qualified person. 42 • Illegal services cause the illegal organization of all those who are concerned with illegal abortions. It also promotes police corruption. • When an abortion is performed to save the life of the mother, the reasoning is not that the foetus is viewed as being of less importance than the mother, but rather that both will perish if nothing is done. At least the mother's life is preserved by aborting the foetus. When a woman is forced to give birth because she is not authorised to abort the foetus and under pressure, she does so and then abandon the new-born. So, what is the point of these laws that forbid abortion because they pose a greater risk to the unborn child's life? Therefore, it is preferable to stop early.
• If abortion is legalized, then would be helpful in controlling population which is one of the problems which India is facing today. The permissible limit of Abortion Abortion continues to be completely illegal or severely restricted by law in almost every country. Whether and to what extent it should be permitted, encouraged, restricted or severely repressed, is a social issue that has divided philosophers, legislators, and general public. Today in most countries abortions are permitted for reasons that fall into four categories, namely: To preserve the life or the physical or mental well-being of the mother; To prevent the completion of pregnancy that has resulted from rape; To prevent the birth of a child with serious deformity, mental deficiency, or genetic abnormality; or To exercise birth control, that is to help from having a child for social or economic reasons.
42 Ahmad Siddique, Criminology Problems & Perspectives 468-469 (Eastern Book Co. Lucknow, 2007).
The MTP Act, 1971 ensures a woman's right to abort an unplanned pregnancy in India and gives women the power to choose whether to carry their pregnancy to term or not, rescuing many women from "forced motherhood" and "inflicted pregnancy." Medical Termination of Pregnancy (MTP) Act, 1971 act allowed pregnancy termination by a medical practitioner43 in two stages: i. A single doctor's opinion was necessary for abortions up to 12 weeks after conception.
ii. For pregnancies between 12 and 20 weeks old, two medical practitioners were required to decide whether continuing the pregnancy would put the mother's life at risk or seriously harm her physical or mental health, or whether there was a significant chance that the child would be born with severe physical or mental abnormalities that would make it "handicapped. " In 2021, Parliament amended the law to allow for abortions based on the advice of one doctor for pregnancies up to 20 weeks. The modified law needs the opinion of two doctors for pregnancies between 20 and 24 weeks. Further, for pregnancies between 20 and 24 weeks, rules specified seven categories of women who would be eligible for seeking termination under section 3B of rules prescribed under the MTP Act, i. Survivors of sexual assault or rape or incest, ii. Minors, iii.
Change of marital status during the ongoing pregnancy (widowhood and divorce), iv. Women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 v. Mentally ill women including mental retardation, vi. The foetal malformation that has a substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously
43 Ramiya Kannan, How will the Supreme Court ruling on abortion impact women, THE HINDU( JULY 24,
2022 05:04 IST) Https://Www.Thehindu.Com/Sci-Tech/Health/Explained-How-Will-The-Supreme-
Court-Ruling-On-Abortion-Impact-Women/Article65674173.Ece
handicapped, and vii. Women with pregnancy in humanitarian settings or disasters or emergencies may be declared by the Government. However, some countries in the world have adopted more liberal laws that allowed abortion when requested by the concerned woman. 44Those who advocate abortion on demand, are implicitly valuing the claim to life of a foetus as less important than the claim of woman to choose the size of her family, pursue an uninterrupted educational service and career, or avoid bringing up an unwanted child. 45 Conclusion After making a careful study of the pros and cons of the entire issue and taking a pragmatic view of the socio-economic and legal problems involved in the case, it may be argued that a pregnant woman should have “personal liberty” to destroy her foetus on her own if she finds it intolerable.
A woman's sense of self-respect and dignity would be violated if she were forced to carry on an unintended pregnancy, which would amount to slavery. The right to life may exist for the foetus, but the right to be kept in a woman's body does not be against her will. When does the life begins has not been recognized under any Statute? So by analyzing and comparing the Constitutional provisions of USA and India, researchers found that a woman has a right to choose to have abortion and her right prevails over the right of an unborn. India should make the abortion laws liberal and any law relating to abolition of abortion is nothing but a clear violation of a woman’s right. It violates women’s rights to health, right to dignity, right to liberty, and right to privacy. Abortion must be legally permitted in order to protect the most basic rights of women.
State should take steps to protect maternal health all the time and unborn children after viability. 44 Austria, Canada, China, Cuba, Denmark and most recently South Africa are among such countries that have laws which permit abortion on demand. Abortion on demand can usually be performed without the approval of authorities if asked within a given duration, usually 12 weeks.
45 AIR Journal 1997 Section, 129(129)
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