A Critical Analysis on Abortion- A Women’s Choice

Aditya Pratap is a lawyer practicing in the Bombay High Court. He can be reached at aditya@adityapratap.com

Introduction to the concept of Abortion

Abortion has been a controversial term since ancient times. Literally, the term is used to refer to the act of bringing a pregnancy to an end, by either extracting an embryo or the fetus before maturity.

Accidental abortion is known as miscarriage; however, the intended form of abortion is what we call induced abortion. In developed countries, the practice has been allowed under certain conditions, and it is done using modern techniques, which are safe and take care of the future health, physical, biological, and psychological needs of the individual. 

Abortion in India

While many people believe that it is a woman’s right to choose whether or not she elects to have an abortion, others have religious, political, emotional, and personal morals that lead them to believe that having an abortion is wrong. It all comes down to a variety of upbringings, ethics, religious backgrounds, political alignments, and other attributes that play into forming opinions. Regarding the legality, abortion is absolutely legal in India since 1971 under The Medical Termination of pregnancy act, 1971.

However, legally it can be performed upto 24 weeks of conception (The medical termination bill 2020) passed by Lok Sabha. Legal abortion can be performed in India in four specific circumstances.

  • If a woman is pregnant due to sexual assault/rape

 The crime of rape when leaves the victim pregnant, becomes unbearable for her. Also, she might not feel the motherly instincts of raising the child with love. It is said that if a woman continued her pregnancy in this situation she might suffer from physical as well as mental health risks. In this case, a woman can get her abortion anytime during the pregnancy but before twenty-seven weeks

  • If foetus has severe abnormalities

Severe abnormalities in fetuses result in disabilities that may be physical, intellectual, or developmental. Birth defects may result from chromosomal Disorder exposure to certain medications or chemicals, or certain infections during pregnancy. In these cases, mothers tend to go for abortion.

  • If pregnancy occurred as a result of failure of contraception

This criterion is only applicable to married women. This happens when a woman has received incorrect instructions to use the contraception, or forgetting the actual method or not using it correctly.

In continuation of the pregnancy poses any risks to the life of the mother or to her physical or mental health. If it anyway affects the mental or physical health of mother, she is given permission to abort the child.

It is solely at the discretion of the doctor if a woman can go under abortion or not. Also, if a woman gets an abortion in a 12-week bar she will need 1 doctor to sign off whereas if a woman crosses the bar of 12 weeks she would need 2 doctors to sign off for her abortion.

In the benchmark judgement Roe v. Wade , it was said , “A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy”.

Abortion in other Countries

Currently, 26 countries in the world do not permit abortions and 39 allow it only when the mother’s life is at risk. Only a very small minority of countries prohibit all abortion. In most countries and jurisdictions, abortion is allowed at least to save the pregnant woman’s life, or where the pregnancy is the result of rape or incest.

Roe v. Wade is a benchmark judgment in the Supreme Court of the United States in which the Court ruled that the Constitution of the US protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction.

In Germany, abortion will be available on request, if a woman is fourteen weeks pregnant or less.

In Brazil, legal abortion is available in case of rape, in any other case a woman does not has the right to abort her own child, if so done she may face up to three years in prison. Although many women reach out to courts seeking abortion outside their country’s MTP laws.

In Sri Lanka, abortion is legally permitted to safe a woman’s life, Three years of imprisonment can be given for causing a miscarriage, Although there is only one circumstance under which a woman can get an abortion in Srilanka, the number of abortions in the island nation remain high with the Ministry of Health reporting in 2016 that 658 abortions per day.

Conclusion

I personally believe that the right of abortion should rely with mothers. In some countries, the government has taken the right and decision making power from women by declaring abortion as illegal. The law regarding abortion varies from country to country, but once government gets involved in abortion there is no power in hands of women to decide what’s right for their own body, mind, or even well being.

Abortion is a very sensitive and emotional topic for women. The World Health Organisation (WHO) has reported on the number of abortions performed in all countries, whether abortion is legal or illegal. The legality of the abortion has little or no affect on how many abortions actually take place. Illegal abortions risks the mother’s life. A woman has should have rights over her own body.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

Cases argued by Aditya Pratap can be viewed here.

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