Sections 312 to 316 of the Code have made induced abortion punishable. Section 312 of miscarriage with the consent of the woman and section 313 causing miscarriage without the woman’s consent, punishable. Section 312 requires two essentials, viz.,
i. Voluntarily causing a woman with child to miscarry (abort), and
ii. Such miscarriage (abortion) should not have been caused in good faith for the purpose of saving the life of the woman.
However, the term ‘miscarriage’ has not been defined in IPC. In its popular meaning, it is taken as synonyms with ‘abortion’ i.e., an expulsion of the immature foetus at any time before it reaches full growth.[1] Technically speaking, miscarriage can be described as spontaneous abortion. The Code penalizes only voluntarily causing miscarriage in two situations, namely, when a woman is ‘with child’ and ‘quick with child’. Judiciary has interpreted these two situations as a beginning of gestation period and the stage where motion is felt by the mother respectively. It can be perceived as an advanced stage of pregnancy.
The explanation clause appended to section 312 clarifies that the offender can be a woman herself or any other person. A person who aids and facilitates a miscarriage is liable for the offence of abetment of miscarriage u/s 312 read with section 109 of the Code. [2] A person who is liable for an attempt to commit a criminal abortion u/s 312 r/ w 511, IPC even if he fails in his endeavour.
History of abortion laws
Both in Rome and Greece abortion was acceptable. It was only when the father was unwilling to be deprived of his child that abortion was objected by the Romans and Greeks. The Old Testament has several legal passages that refer to abortion, but they deal with it in terms of loss of property and not the sanctity of life.
During Bible times (Old Testament), the foetus had been given the status of property which can be inferred from the very fact that if a wife caused miscarriage she was required to pay a fine to her husband. But in case of her death, the husband was liable. However, the New Testament does not state anything expressly.
Coming to Western history abortion was not a criminal act if it was carried out before the foetus moved in the womb at between 18 and 20 weeks into the pregnancy.[3] Till this time the perception was that foetus is a part of the mother and so its destruction posed no greater ethical problem than other forms of surgery.[4]
Abortion permitted on Medical Grounds
Abortion is permitted u/s 312 only in order to protect the life of the mother. In other words, the life of the unborn child ought not to be destroyed unless to protect yet another life of the mother. The statutory provision seems to recognize the foetus’ right to life.[5] The threat of life, should not necessarily be imminent or certain. Had the act done in good faith, the person is entitled to legal protection. What constitutes good faith is a subjective question and is decided to depend on the facts and circumstances of each case.
Medical Termination of Pregnancy Act (mtp), 1971
The Act has been enacted with the objective of eliminating the high incidence of illegal abortions. It seeks to confer on a woman the right to privacy by including within its ambit the right to space and to limited pregnancies (i.e., whether or not to bear children) and the right to decide about her own body[6]. Another important feature of the Act is to encourage a reduction in the rate of population growth by permitting termination of an unwanted pregnancy on the ground that a contraceptive device failed.
Section 3 of the said Act lays down the conditions under which a pregnancy may be terminated by registered medical practitioners. On comparing it with section 312 IPC, we find that it has liberalized the strict provisions. Now, the conditions laid down u/s 3 of the MTP Act are as follows:
a. When the life of a pregnant woman is at risk;
b. When there is a threat of grave injury to her physical or mental health;
c. If the pregnancy is caused by a rape;
d. There exists a substantial risk that, if the child were born, it would suffer from some physical or mental abnormalities so as to be seriously handicapped[7]
e. Failure of any device or method used by the married couple for the purpose of limiting the number of children.
f. The risk to the health of pregnant woman by reason of her actual or reasonably foreseen environment.
A pregnancy may be terminated by a registered medical practitioner within 12 weeks of pregnancy. Where it exceeds 12 weeks but less than 20 weeks, a pregnancy can be terminated by two registered medical practitioners.
Women’s rights and abortion
In the International scenario, women have been given the right to “the highest attainable standard of physical and mental health.” The right to health requires governments to provide health care and to work toward creating conditions conducive to the enjoyment of good health.[8] In 2000, the Committee on Economic, Social and Cultural Rights recognized that the right to health includes “the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference.”[9]The right to health also signifies the elimination of “all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health.”[10]Therefore, it can be inferred that women are entitled to safe abortion services. Denying abortion to women strikes at arbitrariness and gender discrimination.
Flaws in Indian Abortion Laws
The strongest criticism of the MTP Act is that it has become outdated and needs to adapt itself with changing times. The primary reasons are the following:
i. Only advance prenatal diagnoses i.e. between 20-24 weeks enable foetal abnormalities to be discovered. According to the MTP Act, an abortion is a permissible utmost within 20 weeks.
ii. The second contraction is that a when any adolescent goes to a doctor seeking any services related to reproductive health, including abortion, the doctor is mandatorily required to report that to the authorities.[11] So while MTP Act regulations lay down a careful confidentiality procedure for the doctor to protect the identity of the abortion-seeking girl, POCSO, on the other hand, necessitates disclosure to the authorities.[12]
iii. The Pre-Conception and Pre-Natal Diagnostic Techniques Act of 1994 makes sex determination of the foetus during an ultrasound a criminal activity. As a result, doctors are derailed from performing genuine abortions.
Comparison with other Countries
Position in United States
The Supreme Court handed down a historic judgment in Roe v. Wade affirming the right that women have to privacy, as granted by the 14th Amendment, which extends to medical decisions including abortions.[13] States have constructed a latticework of abortion law, codifying, regulating and limiting whether, when and under what circumstances a woman may obtain an abortion.[14]
Position in United Kingdom
Abortion in England, Scotland and Wales is currently regulated by the Abortion Act of 1967, as amended by the Human Fertilization and Embryology Act of 1990, which permits abortion to be performed on broad grounds, as certified by two physicians.[15]The two physicians must be of the opinion formed in good faith: (a) that the pregnancy has not exceeded 24 weeks and continuance of the pregnancy would involve a risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; (b) or that the termination is necessary to prevent grave permanent injury to the physical or mental health of the woman; (c) or that the continuance of the pregnancy would involve risk to the life of the woman, greater than if the pregnancy were terminated; (d) or that 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]
Position in Australia
Abortion law in case of Australia varies with jurisdictions depending upon the respective criminal law system. In Victoria and Queensland, case law either suggests or explicitly states that abortions can be performed to preserve a woman from serious danger to her life or physical or mental health.[17]Similar is the legal situation in New South Wales and Australian Capital Territory. The legal status of abortion law in Tasmania is less clear. It can be perceived that abortion is legally permitted only when it is performed to save the life of the mother or the continuing with pregnancy is threatening for health.
South Australia and the Northern Territory have laws modelled on the 1967 Abortion Act of the United Kingdom. Abortions can be legally performed in these jurisdictions if the risk to the pregnant woman’s life or to her physical or mental health is greater than it would be if the pregnancy were not terminated and in cases where a substantial risk exists that the child will be seriously physically or mentally handicapped.[18]The approval of two medical practitioners is required. The abortion must be performed in a hospital. However, in the Northern Territory, the abortion be performed during the first fourteen weeks of pregnancy, except in the case of a threat to life or physical or mental health, or a risk of serious injury.[19]In 1998, Western Australiaenacted a legislation and therefore, has done away with all restrictions on the performance of abortions in early pregnancy.
Position in Indonesia
According to the Penal Code of Indonesia (articles 3466-349), abortion is illegal and shall be punished accordingly. The quantum of punishment depends upon the decision maker and the consequences of abortion on the mother. Law No. 23/1992 on Health makes abortion illegal except for preserving the life of the pregnant mother or the foetus.Section 7(b) of the code of conduct mentioned that Medical Doctors are not permitted to do abortion (abortus provocatus or induced abortion) except if abortion is the only way for saving the life of the mother.[20]
Position in Argentina
Abortion in Argentina is permitted either rape cases or where the pregnancy is posing a threat to the mother’s health. Any woman who gets her child aborted shall be penalized with imprisonment.
Position in Singapore
Singapore is one such country which permits abortion at the discretion of a woman with just one condition that it must be performed by a medical practitioner or at a clinic approved by the government.
Illustration
Illustration 1
In Queen Empress v Aruna Bewa[21], where the term of pregnancy was almost complete and an attempted abortion resulted in the birth of a child, a conviction u/s 511 for an attempt to effect miscarriage was maintained.
Illustration 2
In Rex v Bourne[22], a girl under 15 who was criminally assaulted in the most revolting circumstances, became pregnant. An eminent obstetrics surgeon and gynaecologist had terminated her pregnancy. She was booked u/s 58 of the Offences Against the Persons Act, 1861, for causing abortion against the law. The jury gave a verdict of acquittal since the Crown failed to comply with the obligation of proving that the operation was not procured for the purpose of preserving the life of the women.
Illustration 3
In Sharif v State of Orissa[23], the High Court of Orissa held that where termination of pregnancy of a minor girl was performed to save the life of the mother, section 312 was not attracted. In the present case, the accused accompanied the girl with her consent to the nursing home, who wanted termination of pregnancy to avoid social stigma. The accused did not instruct her to go for termination.
Frequently Asked Questions (FAQs)
1. In which countries abortion is legal?
Examples of such places are Australia, Bulgaria, Estonia, Hungary, Cabo Verde, Ukraine, South Africa etc.
2. Where abortion is illegal?
Egypt, Iran, Philippines, Laos, Gabon, Angola, Palau Dominican Republic, Nicaragua etc. are few countries abortion is totally restricted. Some countries where abortion is permitted just to save the life of the mother or to preserve her physical health are New Zealand, Ireland, Libya, Nigeria, Sudan, Uganda, Lebanon, Sri Lanka, Yemen etc. There are few countries where a third element is added to above-stated parameters i.e., to preserve the mental health and they are Malaysia, Thailand, Jamaica, Gambia, Algeria etc.
3. Does abortion require parental consent?
In India minor girls (below 18 years of age) require parental consent. Similar is the position in Italy, Greece and Poland. But in New Zealand, permission is required for a minor girl below 16 years of age. Particularly in the UK if minor girls are competent, any permission is not required. Girls of age 13 or above fall in this category.
4. Why abortion should be legal?
Abortion should be legalized in India. There are several reasons for this. Some of which are discussed below:
i. Women’s right over her body and thereby preserve bodily autonomy.
ii. It will enable them to lead healthier lives. Poor sexual and reproductive health accounts for 1/3rd of global diseases between the age group of 15 – 44.
iii. The condition is pathetic for those who are forced to be pregnant.
iv. Sometimes a woman is not equipped to raise a child. In such situations, abortion becomes a necessity.
Edited by – Sakshi Agarwal
Quality Check – Ankita Jha
Approved & Published by – Sakshi Raje
[References]
[1]K.D.Gaur, Textbook on Indian Penal Code, (5th edition, Universal Law Publication, 2015) at pg- 605.
[2] Section 108, Explanation 2, IPC.
[3] Abortion in ancient history. Retrieved on 19/09/18 from http://www.bbc.co.uk/ethics/abortion/legal/history_1.shtml.
[4]Id.
[5] Bonda The Impact of Constitutional Law on the Protection of Urban Human Life. Some Comparative Remarks, 6 Human Rights 223, 234, 235 (1977).
[6]H.L. v Mateson, 450, US 398 (1980).
[7]K.D.Gaur, Textbook on Indian Penal Code, (5th edition, Universal Law Publication, 2015) at pg- 607.
[8] Anika Rahman & Rachel Pine, An International Human Right to Reproductive Health Care, 1 Health and Human Rights 405, 406 (1995); Brigitte Toebes, The Right to Health as a Human Right in International Law 245-258 (1999).
[9]Paragraph 8, General Comment No. 14 – The right to the highest attainable standard of health, 2000. Retrieved on 19/09/18 from https://www.unfpa.org/sites/default/files/pub-pdf/NHRIHandbook.pdf.
[10] Ibid.
[11]What’s wrong with India’s abortion laws? Indian Express (6th Dec 2017). Retrieved on 19/09/2018 from https://indianexpress.com/article/gender/whats-wrong-with-indias-abortion-laws/.
[12]Ibid.
[13] MEGHAN KENEALLY, Where US abortion laws stand 45 years after Roe v. Wade, 22nd Jan 2018. Retrieved on 17/08/18 from https://abcnews.go.com/US/us-abortion-laws-stand-45-years-r oe-wade/story?id=52462955.
[14] An Overview of Abortion Laws. Retrieved on 17/08/18 from https://www.guttmacher.org/state-policy/explore/overview-abortion-laws.
[15] Abortion Policies and Reproductive Health Around The World, Department of Economics and Social Sciences. Retrieved on 17/08/18 from http://www.un.org/en/development/desa/population/publications/pdf/policy/AbortionPoliciesReproductiveHealth.pdf.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Abortion Policy in Indonesia. Retrieved on 18/08/18 from https://www.lawteacher.net/free-law-essays/medical-law/abortion-policy-in-indonesia-medical-law-essay.php.
[21] (1873) 19 WR (Cr) 230.
[22] (1938) 3 All ER 615 (621).
[23] 1996 Cr LJ 2826 (Ori).
