Hyderabad: Abortion is a phenomenon that has been deliberated upon since times immemorial and continues to be a topic of contention even today. This debate can be recapitulated in two terms- Pro Choice and Pro Life. A woman has a right to make decisions regarding her own body. Support for this right is found in a number of human rights instruments, which ensure freedom in decision-making about private matters.
Such provisions include protections of the right to physical integrity, the right to decide freely and responsibly the number and spacing of one’s children and the right to privacy. Right to life and personal liberty is the most sacrosanct, precious, inalienable and fundamental of all the fundamental rights of citizens. This guarantee imposes a restraint on the government and it is part of the cultural and social consciousness of the community in India.
In this context, every woman owe an individual right, right to her life, to her liberty, and to the pursuit of her happiness, that sanctions her right to have an abortion. Each year, around seventy-three million abortions take place worldwide, according to the World Health Organization (WHO). This translates to about thirty-nine abortions per one thousand women globally, a rate that has stayed roughly the same since 1990.
Between 1990–94 and 2015–19, the average abortion rate in countries with generally legal abortion excluding China and India declined by 43 percent. By contrast, in countries with severe restrictions on abortion, the average abortion rate increased by around 12 percent. The first country to reform its abortion law was the Soviet Union, spurred by feminist Alexandra Kollantai, through a decree on women’s health care in October 1920.
According to Center for Reproductive Rights, there are a total of 24 countries where abortion is prohibited. About 42 countries allow abortion to save a woman's life. 72 countries allow abortion on request, mostly within 12 weeks. Several countries, including India also allow women the right to abortion on broad social and economic grounds, such as a woman's financial condition, etc.
Recently SC has been hearing a married woman’s request for ending her 26-week pregnancy. The case has travelled to two different Benches of the SC, and raised crucial questions on the decisional autonomy of a woman to abort, and the legislative framework. The impact of these pregnancies will vary immensely depending on such factors as a woman’s health, family relationships, economic resources, and the availability of medical care.
These and other factors will influence her decision to either carry a pregnancy to term or seek an abortion. Given the complexity of this decision, the only person equipped to make it is the pregnant woman herself. The right to life is protected in multiple human rights instruments. It is widely acknowledged that in countries in which abortion is legally restricted, women seek abortions clandestinely, under conditions that are medically unsafe and therefore life threatening.
The right to gender equality is a fundamental principle of human rights law. Freedom from discrimination in the enjoyment of protected human rights is ensured in every major human rights instrument. In the end it should be kept in mind that reproductive choices are a women's integral right under personal liberty. It was observed by the Supreme Court in the case of Suchita Singh vs Chandigarh Administration that to procreate or abstain from procreating is a woman's right to privacy, dignity and bodily integrity that should be respected, "the right to make reproductive choices is also a dimension of personal liberty as understood under section 21 of the constitution of India".
The amendment to the MTP Act is a step in the right direction but the MTP Laws in the Country are far from ideal for women. In September 2022, a Bench led by Justice Chandrachud allowed abortion for an unmarried woman who was 24 weeks pregnant, and was in a consensual relationship. The Bench cited “transformative constitutionalism” that promotes and engenders societal change.
There are also instances in which a court has overruled the decision of the medical board to allow termination. In ‘Bhatou Boro v. State of Assam’ (2017), Gauhati High Court overruled the medical board’s refusal to give an opinion for termination of pregnancy of over 26 weeks of a minor rape survivor. While courts have read the MTP Act liberally, the test of “foetal viability” as a benchmark to allow abortion is new in India.
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The landmark 1973 US Supreme Court verdict in ‘Roe v Wade’ that made abortion a constitutional right allowed abortion up to the point of foetal viability, that is, the time after which a foetus can survive outside the womb. Foetal viability in 1973 was pegged at 28 weeks (7 months), which is now with scientific advancement lower at 23-24 weeks (6 months).
It has been argued, therefore, that foetal viability is an arbitrary standard. The criticism of India’s law is that the decision to terminate after 20 weeks is shifted to doctors and not the woman. While this aspect is not challenged in court, frequent cases of women approaching the court at the eleventh hour point to a legislative gap.
The Indian legal framework on reproductive rights tilts to the side of the woman’s autonomy to decide and choose more than towards the rights of the unborn child. In 2005, Rajasthan High Court in ‘Nand Kishore Sharma versus Union of India’ rejected a challenge to the constitutional validity of the MTP Act on the grounds that it violates the fundamental right to life of an unborn child.
The right of an unborn child has, however, formed the basis of legislation that deal with succession or the law banning sex-determination of foetus. Section 416 of the Code of Criminal Procedure also provides for postponement of the death sentence awarded to a pregnant woman. Although the legal status of abortion varies considerably by region, a large majority of countries permit abortion under at least some circumstances; globally, two dozen countries ban abortion entirely.
Most industrialized countries allow the procedure without restriction. Around one hundred countries have some restrictions, typically permitting abortion only in limited situations, including for socioeconomic reasons, risks to the physical or mental health of the woman, or the presence of fetal anomalies. However, legal language concerning exemptions for fetal impairment is often vague, resulting in uncertainty for medical professionals about whether performing certain abortions is legal.
From abortion being legalised by the Medical Termination of Pregnancy Act, 1971 to gestational limits for pregnancies that may be aborted being raised by the MTP (Amendment) Act, 2021, the whole chain of reforms has been girded by an understanding of women’s rights and bodily autonomy. Despite its many progressive changes, activists have identified several ways in which the law still needs improving.
For example, the narrowly sketched categories for abortion in the 20-24 weeks range need widening. And the requirement of medical boards to decide on cases beyond 24 weeks is dark humour for large parts of the country, where even one doctor is hard to find. But even today, it should be crystal clear to both medical and judicial practitioners that “her” decision must be respected.
The only competing consideration is “her” health. In the current case GOI intervening to say that the medical board found the fetus had a viable chance of being born, is what really undermined the petitioner, and split Justices Nagarathna and Kohli. Previously they had jointly ruled for “the right of a woman over her body”.
Restricting abortion has the effect of denying women access to a procedure that of denying women access to a procedure that may be necessary for their enjoyment of their right to health. Only women must live with the physical and emotional consequences of unwanted pregnancy. Some women suffer maternity-related injuries, such as hemorrhage or obstructed labor.
Denying women access to medical services that enable them to regulate their fertility or terminate a dangerous pregnancy amounts to a refusal to provide health care that only women need. Women are consequently exposed to health risks not experienced by men. Recognizing women’s sexual and reproductive autonomy contradicts long-standing social norms that render women subordinate to men in their families and communities.
It is a call for empowering women to make decisions that are best for their lives while acknowledging the profound responsibility and thoughtfulness that accompany such choices. As we move forward, it is vital to foster a culture of empathy, understanding, and support for women in making these choices. This includes access to safe and legal abortion services, comprehensive reproductive healthcare, and social systems that value and respect women's autonomy.
Such a society is not only more equitable but also more humane, recognizing that the path to gender equality begins with acknowledging and upholding the rights of every individual.
