This article is written by Nandini Biswas, from Narsee Monjee Institute of Management Studies (NMIMS) School of Law, Bangalore. This article analyses the abortion-related laws in India and some countries of the USA which have recently adopted or amended its abortion laws.
The birth of a child brings joy and happiness to the family, especially to the newly born parents. But, at times when a child is born out of unwanted pregnancy, the scenario is not the same. The bearer of the child or the couple, as the case may be, often opt to terminate the pregnancy if such a pregnancy is unwanted or unplanned. Such termination of pregnancy is called an abortion.
Abortion in medical terms means the medical or the surgical procedure that is carried out to end a pregnancy before the embryo or the fetus is born. Such abortions are required to curb the birth of a baby from unwanted pregnancies.
Unwanted pregnancies can occur due to a lot of reasons like the failure of contraceptives, rape, incest, etc. Sometimes the couple is also not ready for parenthood or the parents do not want a baby due to their financial crunches. Even in these situations, the couple would want to terminate the pregnancy. In all these cases, the women or the couple should have the right to abort the child. Another most prevalent reason for abortion is female foeticide. When couples or family, through a sex determination test learns that the fetus in the womb is that of a female, they tend to abort the fetus since they do not want a female child.
There are cases where couples would like to abort the child even if it is a planned or a wanted pregnancy. Such cases generally occur when the growth of the child in the mother’s womb has been detected to be abnormal, or cases where the pregnancy or the childbirth can lead to serious health implications or even life-threatening implications on the mother. Talking about female foeticide, it has been seen that the mother or the couple seeks to abort their fetus just because it is a female. In such cases, the abortion is done due to coercion and against the will of such a mother or the couple. While in certain instances, the mother or the couple themselves want to abort the female fetus.
The concept of abortion and abortion laws have been facing a long going tussle between not being ethically, morally, or religiously acceptable and being necessary or important. While it has been argued time and again that abortion is not ethical and also not a sacred act that the almighty will approve of, on the other hand, the supporters of abortion have been head bound on making people understand the need and importance of abortion by citing health and other mental and physical implications of giving birth to a baby from unwanted pregnancy. On the legal front, other reasons stated against abortion is the right of the unborn fetus and prevention of female foeticide.
‘Abortion’ has been re-iterated as the right of the women to decide whether or not she wants the baby. In India, this right is socially and economically beneficial. Abortion of unwanted pregnancy will reduce the birth count, thus slowing down the population growth ratio. While this is needed for reducing the population surge in the country, it is economically beneficial for poor families too. The family would not be financially overburdened by raising more children than they want.
Thus, different countries have different abortion norms and the degree of its restrictiveness also differs from one nation to the other.
Sociological view on abortion
In order to understand the laws governing abortion, it is important to understand society’s perspective on abortion. Society can be broadly divided into two halves- pro-choice and pro-life.
Pro-choice supporters are of the opinion that they have the choice to decide if they want to continue with the pregnancy or not. They view this choice as their right. They believe that it is their right to decide if they want to give birth to the baby or abort the fetus. They further connect abortion to poverty. They say that poverty in a society that bans abortion increases since the family will have to take care of more children and the resources that they earn will not be able to sustain that lifestyle. They also view abortion through the point of view of the rape victims and from the perspective of incest. It will be unjust to punish a rape victim by not allowing her to abort the fetus. Incest can lead to major abnormalities within the fetus that would adversely deteriorate the quality of life that the baby will have. In such conditions, aborting the fetus is considered to be a good option for the women and the fetus. Even in normal cases, the fetus can develop abnormalities that can limit the age the fetus will survive after birth or other severe abnormalities that can compromise the quality of life of the fetus. Further, some pregnancies are complicated and its continuation can risk the life of the fetus as well as the life of the bearing women. Abortion in such situations is also crucial and life-saving.
While the pro-life believers oppose abortions. The main argument advocated by them is, life starts at conception of the zygote, thus, as soon as the female conceives, the zygote is considered to be a living person. Aborting the living person is considered to be a crime that is as serious as murdering a human being. Pro-life supporters believe that abortion should be punishable like the crime of murder. Apart from this, there are other arguments based on social values. Such arguments relate to teen pregnancy. Pro-life supporters believe that allowing abortion would help teenagers get away with pre-marital pregnancies and will promote pre-marital sex, which is considered against social values. If partners or couples have the option of aborting an unwanted pregnancy, this will discourage the use of contraceptives like condoms. This, in turn, will lead to an increased risk of spreading STDs.
Knowing and understanding the views of society is essential to understand the problem that surrounds issues and what are the opinions that are developed on the issue. Further, it helps the lawmakers to arrive at a middle and a just legal solution so that the law is fair for all the stakeholders of the issue. But, it has been observed that the abortion laws of some countries are majorly in support of the pro-life section, while some countries have been able to take a middle and a just stand on this issue.
Abortion laws and provisions in India
Indian Penal Code (IPC), 1860
IPC takes a punishment intensive perspective for wrongful abortions and abortions that are done without the consent of the bearing female. Further, it uses the term ‘miscarriage’ in place of ‘abortion’. The Code does not mention anything about legally aborting in cases of unwanted pregnancies or pregnancy occurring from a heinous crime like rape. Section 312, Section 313, and section 316 deals with abortion.
This Section punishes the person who voluntarily causes a miscarriage of the bearing female with imprisonment that can be extended up to 3 years, or fine, or both. If such a female is ‘quick with child’, that is, if the fetus has shown some movement, then the punishment becomes severe. A person causing a voluntary miscarriage of a female quick with the child can be imprisoned for a term extending up to 7 years, or fine or both. If the person carrying voluntary miscarriage is the mother itself, she will also be subjected to the same amount of punishment as mentioned in this section. But, if the miscarriage is conducted in good faith to save the bearing female, then such an act is not punishable under this section. Offences under this section are considered to be not cognizable, bailable, and non-compoundable.
This Section deals with punishing the persons who cause abortion of a female without the consent of that female. Irrespective of the fact whether such a female is quick with a child or not, any person found liable under this section shall be punished with life imprisonment or imprisonment that can be extended to 10 years. Such a person shall also be liable for a fine as decided by the court. Offences committed under this section are cognizable, non-bailable and non-compoundable.
If a person knows that an act can cause the death of a bearing female and he/she would be charged for culpable homicide, the person does that act and the quick unborn child dies as a result of such act, such a person shall be punishable under this Section, irrespective of whether the bearing mother dies or not. It is important to note that this section can only be attracted if the bearing mother is quick with a child and if the nature of the harm inflicted on the bearing mother would have caused her death and the person would be liable for culpable homicide. If the person would have not been liable for culpable homicide but have caused the death of a quick unborn child, the person cannot be held liable under this section. Any person held liable under this section would be punished with imprisonment term up to 10 years and will also be liable to pay a fine. The offences carried out under the purview of this section are termed as cognizable, non-bailable, and non-compoundable.
The Medical Termination of Pregnancy Act, 1971
This Act neglects the sections mentioned in the IPC regarding abortion. Unlike IPC, this act recognizes the right of females to abort the child. This act identifies the female’s physical and mental distress that she will be going through if she will have to give birth to a child from an unwanted pregnancy. This act is a small act consisting of only 8 sections.
This Section essentially lays down the number of weeks of pregnancy within which abortion has to take place. The medical practitioner can abort the child only on grounds of good faith when the pregnancy of the woman if continued, would risk her life or cause grievous injury to her physical or mental well being or if there is a substantial risk that the child is born, will have serious physical or mental injury that can result in serious handicap.
This section explains that continuing pregnancy caused due to rape will be considered to have a grave injury on the women’s mental health and pregnancy due to the failure of any protective device used by a married man or a married female can cause physical and mental injury to the women.
The section mentions that the pregnancy up to 12 weeks can be aborted by a medical practitioner if he/she is of the opinion that abortion is required under good faith as mentioned in the section and described above. Further, pregnancy up to 20 weeks can be aborted if two such medical practitioners are convinced that such an abortion is required under good faith.
The requirement of the length of the pregnancy and the opinion of not less than two registered medical practitioners shall not apply to the termination of a pregnancy by the registered medical practitioner in the case where he is of opinion that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
Further, the section mentions that a minor girl’s pregnancy cannot be terminated without the consent of her guardian. If a girl is legally an adult, that is, more than 18 years of age, but a lunatic, her pregnancy can also not be terminated without the consent of her guardian.
This Section mentions the place where the termination of pregnancy can be legally done. Such places as mentioned in this section are the hospitals that are established or maintained by the government. Further, for fulfilling the purpose of this act, clause b of this section states that abortion can be done at any other place that has been approved by the government or a District Level Committee constituted by that Government with the Chief Medical Officer or District Health Officer as the Chairperson of the said Committee. The District Level Committee shall consist of at least three members not exceeding five members including the Chairperson, as the Government may specify from time to time.
This Section mentions the exceptions to Section 3 and Section 4 of this act and certain punishments for disobeying Section 3 and Section 4. This section also amends the IPC to some extent.
This section lays down that when one medical practitioner is of the opinion that immediate termination of a woman’s pregnancy is required for saving her life, the provisions of Section 4 and the provision of Section 3 that states the requirement of two medical practitioners shall not apply.
This section further punishes the termination of pregnancy by a person who is not a registered medical practitioner by rigorous imprisonment for 2 years which can be extended up to 7 years under the IPC. The IPC gets amended accordingly.
Any person who defies the provisions of Section 4 shall be punished with rigorous imprisonment for 2 years which can be extended up to 7 years.
The owner of a place that is not approved under clause (b) of section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.
The Medical Termination of Pregnancy (Amendment) Bill, 2020
In January 2020, the cabinet approved of the Medical Termination of Pregnancy (Amendment) Bill, 2020 to amend the act. The amendment bill proposes to increase the gestation period within which abortions can be done from 20 weeks to 24 weeks. This is done according to various research and studies carried out which proves that abortion carried out in the 20th week of pregnancy has the same impact when the abortion is carried out on the 24th week. The termination of pregnancies up to 24 weeks will only apply to specific categories of women, as may be prescribed by the central government. Further, the central government will notify the norms for the medical practitioner whose opinion is required for termination of the pregnancy.
Further, the bill seeks to widen the scope for abortion due to the failure of protective devices. The current provision mentions that married couples using protective devices that failed can be allowed to abort. The amendment will allow all women and partners to abort in case of failure of contraceptive devices.
The sought amendment also focuses on women’s privacy by punishing a medical practitioner who reveals the name and particulars of the women seeking an abortion.
The bill further makes provisions for setting up a Medical Board in every state and union territory consisting of Gynecologist, paediatricians, Radiologists, or any other members as declared by the government. The upper gestation period of 24 weeks need not be complied with if the medical board observes any abnormal fetal developments which necessitate medical termination of the fetus.
Pre-Conception and Pre-Natal Diagnostic Techniques (Regulations and Prevention of Misuse) Act, 1994
It is widely prevalent in the nation to carry out sex determination tests so that the female fetus can be aborted. This practice has screwed the sex ratio towards the males and thus made the nation to have an unfavourable sex ratio.
This Act aims at curbing female foeticide by checking and preventing the misuse of pre-natal diagnostic techniques in order to determine the sex of the fetus. The act prohibits disclosure of the sex of the fetus and any advertisements promoting pre-natal sex determination and punishes the ones who contravenes with the provisions of the act with imprisonment and fine.
This act thus curbs the freedom of aborting the fetus based on its gender. The objective of the act is therefore twofold. First, to regulate pre-natal diagnostic techniques and limit it to the detection of genetic/ metabolic disorders, chromosomal abnormalities, congenital malformations, or sex-linked disorders. Secondly, to prevent the use or rather misuse of such technology for the purpose of pre-natal sex selection which in turn would lead to sex-selective abortions.
Protection of Children from Sexual Offences Act (POSCO), 2012
This Act establishes an age bar on consensual sexual activities at 18. Under this act, all pregnant females below the age of 18 are considered to be rape survivors even of the sexual act was consensual. Generally, pregnancy of minor rape victims is allowed to be terminated by the court. But, if a rape survivor’s pregnancy has extended beyond the 20- week limit established under the MTP Act, courts traditionally split. However, in 2015 the Supreme Court allowed termination of post-20 weeks pregnancy where a team of doctors determined that the pregnancy would harm the girl’s mental and physical health. It is an important precedent paving the way for increased access to safe abortion services for minor rape survivors. Thus, though not explicitly specified in the act, termination of a rape victim’s can take place even after the 20-week limit has been surpassed.
Landmark judgements on abortion in India
Apart from the various acts and legislations, the judiciary has also been active in pronouncing progressive judgments on this sensitive issue of abortion. Some of the landmark cases have been mentioned:
Suchita Srivastava and V. Krishnanan
In this landmark judgment, the Supreme court ruled that the decision of continuing the pregnancy as well as qualified consent of aborting the fetus was connected to a women’s right to life and personal liberty guaranteed under Article 21 of the Constitution. A woman’s reproductive choices are safeguarded by Article 21. This is in line with trying to respect a female’s privacy, dignity, and bodily integrity.
Ms.X V. State of Kerala
In this case, the woman was a victim of rape. The man with whom she had a sexual relationship with had promised to marry her, but then deferred from his promise. She got pregnant with his child and thus wanted to seek an abortion. But, the hospital authorities informed her that she was 24 weeks pregnant and that abortion can take place within 20 weeks of pregnancy according to the MTP Act. She then filed a writ petition under Article 226 of the Indian Constitution. The high court ruled that since she was not mentally prepared for being abandoned by the man with the pretext of marrying her entered into a sexual relationship with her, delivering the child would lead to mental and emotional stress on the woman which may change the entire course of her life. Thus, the court ruled that such a situation should be considered as an exception under Section 5 of the MTP Act, subsequently allowing the woman to medically terminate her pregnancy.
Mrs.X V. Union of India and Ors.
In this case, the petitioner was 22 weeks pregnant. In the 22nd week, her fetus was diagnosed with a disease called bilateral renal agenesis and hydramnios. Bilateral renal agenesis means the fetus has no kidneys and hydramnios means that there is an absence of amniotic fluid in the womb. The team of doctors observed that if the pregnancy is continued, there is a possibility of the fetus dying inside the mother’s womb. Such death in medical terms is called intrauterine fetal death. Further, the doctors claimed that even if the pregnancy is continued and the child is born, the chances of the child surviving for a long time are also negligible. The problem stated by the doctors is that at present, there is no curative treatment available for bilateral renal agenesis. Due to the prolonged absence of amniotic fluid, the fetus will suffer from pulmonary hypoplasia leading to severe respiratory insufficiency at birth which makes the fetus incompatible with extra-uterine life, i.e. outside the womb. There is also a risk to the mother since the continuation of pregnancy can endanger her physical and mental health and the delivery of the child can also risk her life. The court ruled that in these circumstances, in accordance with the bodily integrity of the woman, she should be allowed to medically terminate her pregnancy.
Abortion laws and provisions in the USA
All the states of the USA have their own laws on every aspect, abortion is no different. Given below are few states who have enacted or amended abortion laws recently.
Alabama- The Alabama Human Life Protection Act
This Act was enacted on 15th May 2019.
Who can be punished
This act criminalizes such abortion carried out by the physicians that are in contravention of the act. The act describes performing such abortions as a Class A felony, that is, a penalty of 10 years up o 99 years in prison. An attempt to carry out such abortions by the physicians is classified as a Class C felony, that is, a penalty of 1 year to 10 years in prison. This is not mentioned explicitly in the act, but since it is expressly mentioned that the women undergoing abortion will no be punished, coupled with a deeper reading of Section 4(a) gives out that the physicians performing an abortion that is in contravention with the act will be punished.
What is abortion under this act
The Act is centred upon the legal definition of what is a prohibited abortion. The Act requires that in order for it to be an abortion, the woman must have the knowledge of her pregnancy, and she must have an intention to terminate that pregnancy. The definition of ‘abortion’ used in the Act provides that, abortion is the use or prescription of any instrument, medicine, drug, or other substance or device with the intent to terminate the pregnancy of a woman known to be pregnant with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child.
What is not abortion under the act
If it is not an abortion, it is not prohibited. Activities which are specifically excluded from the definition of abortion are the ones that are done with intent to save the life or preserve the health of an unborn child, remove a dead unborn child, to deliver the unborn child prematurely to avoid a serious health risk to the unborn child’s mother, or to preserve the health of her unborn child. These activities are not an abortion, and therefore not illegal. Abortion does not include a procedure or act to terminate the pregnancy of a woman where the pregnancy is a result of a fertilized egg getting implanted outside the female’s uterus or pregnancy where there the child has can die shortly after birth or can be stillborn. These are called an ectopic pregnancy and lethal anomaly. Both pregnancies resulting from an ectopic pregnancy and pregnancies in which the unborn child has a lethal anomaly are not included in the definition of abortion, and therefore, procedures involving either are not prohibited under the Act.
Conditions considered to be a serious health risk to the mother of the unborn child
A mother of the unborn child can be thought to be having a serious health condition if she is physically or mentally unwell. The mother can be thought to be physically unwell if her medical complications are such that it might risk her life or adversely affect any major body function during her pregnancy or delivery. The mother is considered to be mentally unwell only if there is a mental condition that has been testified by a registered psychiatrist who has a minimum of 3 years of experience at the clinic. Such a psychiatrist should be of the opinion that the mental condition of the mother can lead to such conduct that can lead to the death of the mother or the unborn child. If the psychiatrist deems fit that the termination of the pregnancy can avoid such conduct, a physician licensed in Alabama can perform the abortion.
Louisiana- 1061.1.3. Abortion prohibited; detectable fetal heartbeat; ultrasound required
This Act makes it a punishable crime to perform abortions after the fetal heartbeat of the unborn child has been diagnosed. There are some exceptions to this:
- If the physician is of the opinion that non-termination of the pregnancy can risk the life of the woman, or the women will suffer from a substantial and irreversible impairment of a major bodily function.
- If standard medical devices used to detect the heartbeat of the fetus could not detect any fetal heartbeat.
- If the pregnancy is diagnosed to be medically futile. ‘Medically futile’ means the unborn child has a profound and irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth.
A doctor who violates the ban could face up to two years in prison and the revocation of his or her medical license.
Georgia- Living Infants Fairness and Equality (LIFE) Act
What is abortion?
Under this act, ‘Abortion’ means the act of using, prescribing, or administering any instrument substance, device, or other means with the purpose to terminate a pregnancy with knowledge that termination will, with reasonable likelihood, cause the death of an unborn child. But, any such act shall not be considered abortion if the act is performed with the purpose of:
- Removing a dead unborn child caused by spontaneous abortion; or
- Removing an ectopic pregnancy. ‘Ectopic pregnancy’ means a pregnancy in which the fertilized egg gets implanted outside the uterus. Such a fertilized egg will not be able to grow. If it is not aborted but left to be grown, it may damage the nearby organs and cause life-threatening loss of blood.
When can abortion be performed
No abortion can be performed if the heartbeats of the unborn child have been detected except under the following circumstances:
- When a physician is convinced that a medical emergency exists that can lead to the death of pregnant women or can cause an irreversible impairment of a major bodily function. It is important to note that such a medical emergency cannot be considered to exist if it is based out of reports claiming the woman to be so mentally unwell that she can engage in activities that can endanger her life or cause an irreversible impairment of a major bodily function. No psychological conditions will be considered to check if the women have any medical emergency for which abortion is required.
- The probable gestational age of the unborn child is 20 weeks or less and the pregnancy is the result of rape or incest in which an official police report has been filed alleging the offence of rape or incest.
- If the pregnancy has been diagnosed to be medically futile, that is, the unborn child has a profound and irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth.
Defences under this act
It shall be an affirmative defence to prosecution under this act if:
- A licensed physician provides medical treatment to a pregnant woman which results in the accidental or unintentional injury to or death of an unborn child.
- An advanced practice registered nurse or registered professional nurse, or a licensed practical nurse engages in the practice of nursing to provide care for a pregnant woman which results in the accidental or unintentional injury to or death of an unborn child.
- A licensed pharmacist engages in the practice of pharmacy, to provide care for a pregnant woman which results in the accidental or unintentional injury or death of an unborn child.
- A licensed physician assistant provides care to a pregnant woman which results in the accidental or unintentional injury to or death of an unborn child.
- A woman sought an abortion because she reasonably believed that an abortion was the only way to prevent a medical emergency.
Landmark judgements on abortion in the USA
Roe V. Wade
This was the judgment that relaxed the abortion laws in the USA to some extent. In this case, the plaintiff, a pregnant woman from Texas, wanted to abort her unborn child since she was not married. But the abortion laws in Texas at that point allowed abortion only if the continuance of the pregnancy risked the life of the pregnant woman. Therefore, she filed this case seeking a legal abortion of her unborn child. The case was decided with a 7-2 ratio.
The plaintiff argued that the strict abortion laws of Texas unconstitutionally violated her right to privacy. The court further argued that the Constitution of USA via amendments protected an individual’s “zone of privacy” against state laws and cited past cases ruling that marriage, contraception, and child-rearing are activities covered in this “zone of privacy.” The Court then argued that the “zone of privacy” was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” This decision involved myriad physical, psychological, and economic stresses a pregnant woman must face.
Since abortions lie within a pregnant woman’s “zone of privacy,” the abortion decision “and its effectuation” are fundamental rights that are protected by the Constitution from regulation by the states.
Further, the court examined the rationale behind such stringent abortion laws to find that there were 3 main reasons for these. They being, to prevent illicit sexual conduct, to protect the health of the female from the hazards of the abortion procedure, and to protect the rights of the prenatal life. The court viewed the first reason to be outdated and found that the courts did not consider it seriously. The court negated the second reason by citing the medical advancements in technology can ensure safe abortion that wouldn’t be dangerous for the women. On the third reason, the court stated that prenatal life was not within the definition of ‘persons’ as used and protected in the U.S. Constitution and that America’s criminal and civil laws only sometimes regard fetuses as persons deserving protection. No consensus exists to regard fetuses as people, under the definition, deserving all the rights, though, culturally, there exist some groups that regard fetuses as people deserving of full rights. The Court ruled that Texas was thus taking one “view” of many. It was not sufficient enough to base the reasons for protecting prenatal life by banning almost all the abortions over his contentious “view” of prenatal life.
However, the Court ruled that narrower state laws regulating abortion might be sufficiently important to be constitutional. For example, because the medical community finds that the human fetus might be “viable” (“capable of meaningful life”) outside the mother’s womb after six months of growth, a state might constitutionally protect a fetus from abortions in the third trimester (between 6months to 9months) of pregnancy, as long as it permitted an exception to save the life of the mother. Additionally, because second-trimester and third-trimester abortions present more health risks to the mother, the state might regulate certain aspects of abortions related to maternal health after three months of pregnancy. In the first trimester, however, a state’s interests in regulating abortions can never be found “important” enough. Such abortions are thus exclusively for the patient and her doctor to govern.
Comparing abortion laws in India and the USA
Analyzing the Indian position on abortion laws
Abortion has faced a long driven social vs. legal faceoff. It is still battling this faceoff. But, even amidst such a stiff standoff, the nation is witnessing increasingly progressive laws in the field of abortion. With every amendment made or every judgment pronounced, the abortion laws are being eased to actively consider the female’s position and their right on abortion.
To begin with, IPC in 1860 adopted a punishment intrinsic approach. The sections of IPC dealing with abortion criminalizes intentional abortion and the only exception cited for such an abortion to not have criminal liability is when the life of the mother is at risk. There is no mention of an abortion caused due to rape or failure of contraceptives. It also does not consider mental health has an exception to conduct abortion.
But with time, the nation was thoughtful enough to ease such restrictions. The MTP Act considers the emotional aspect of bearing an unwanted child. Further, the 2020 Amendment focuses on women’s privacy and considering the technological advancement in abortion seeks to extend the upper limit of the gestation period to 24 weeks. This shows that the laws are progressive and takes into account all the developments that take place in order to provide better facilities for abortion.
Though the laws are progressive with time, they also should be updated. The way in which the MTP Act has been amended from time to time, similarly, the IPC sections dealing with abortion should also be amended by considering the social changes and the technological developments that are taking place in the recent times. This will give a boost to the abortion laws.
Analyzing the USA’s position on Abortion laws
The states in the USA more or less have the same kind of laws on abortion as the ones mentioned in this article. Before the historic judgment of Roe vs. Wade, the states in the USA had very strict abortion norms that did not allow women to abort the pregnancy until the continuance of the pregnancy posed a serious health risk to the bearing female. This was eased out by the judgment of Roe vs. Wade.
By considering the right to abortion within the ‘zone of privacy’ it gave females greater rights to abort the pregnancy. But, it is important to note that the laws do not consider abortion of the child due to rape or incest. Even in this era, the USA, one of the most progressive nations in the world does not allow the females to legally abort if they get pregnant due to rape or incest. Further, very few states in the USA consider the mental illness of pregnant women for abortion. The physical or psychological effect of continuing an unwanted pregnancy is also not taken into account.
One good side of Georgia’s abortion law is, it has provisions to protect its doctors from criminal liability of abortion unintended or accidental abortion or any harm caused to the unborn child unintentionally or accidentally. Such a provision is required since genuine accidents tend to happen and doctors should not be criminally charged for this.
This comparison shows that Indian laws on abortion are much more progressive as compared to that of the USA. Though the USA was early to declare abortion as a part of a woman’s ‘zone of privacy’ through the judgment of Roe vs Wade, India recognized female’s right to abortion has her Right to personal liberty guaranteed under Article 21 years later, India was quick to consider the position of the females to give birth and to raise the child out of an unwanted pregnancy coupled with the life of the prenatal child. The abortion laws in the USA are strict and restrictive since the country majorly focuses on the rights of the prenatal child and largely neglects the mental health risks and other bodily integrity.
It is important to note that even in this day and age where countries are struggling hard to provide and build an environment that is unbiased to the females, adopting stringent abortion laws that compromise a female’s rights does not look good on the country.
Abortion laws are required to curb menace like female foeticide for which appropriate laws without infringing the rights of the females came to be drafted. For considering the adverse impact of abortion on the bearing female, rules that do not allow abortion after a certain tenure can be implemented. This has to be in the lines of the medical and technological proficiency of the country and has to be updated as and when there is some progress in this field. An example of the same can be drawn from Indian laws. The current Indian laws do not allow abortion after 20 weeks of pregnancy since it can be harmful. But, with the current medical and technological progress of the country, this upper limit has been sought to be extended to 24 weeks through an amendment. Such procedures have to be followed.
Most of the countries allow abortion if the physical health or the life of the bearing women will be at risk if the pregnancy is continued. To add on to this, while considering the rights of the prenatal child, abortion on grounds of abnormalities of the fetus or medical futility of the fetus is also considered. But, in case of sensitive and mentally disturbing instances like pregnancy arising out of rape and incest, aborting the same should be allowed since they have adverse impacts on the mental health of the bearing female. If not done so, it would be unfair and unjust towards the rape/incest victim.
Therefore, while drafting abortion legislation, all the countries should consider the right of the female, the rights and health of the prenatal child, and the physical and mental condition of the women if she is not allowed to terminate her pregnancy. In this way, the law will be fair and just.
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