A COMPARATIVE STUDY OF ABORTIONS IN INDIA AND USA

By

K.Meghana

2018LLB039

Semester X

5 year (B.A., LL.B. Hons.)

Title of the Seminar Paper

Comparative Criminal Procedure & Offences

Under the supervision of:

PYLA NITYANANDA RAO BABU

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM, VISAKHAPATNAM - 531035
ANDHRA PRADESH, INDIA

Date of Submission
25-03-2023

1
 ACKNOWLEDGEMENT

First and foremost, I would like to express my sincere thanks and gratitude to my Comparative
Criminal Procedure & Offences subject faculty Pyla Nityananda Rao Babu for the continuous
support during my seminar paper research with his patience, motivation and immense
knowledge. His guidance helped me to complete my paper.

I would also like to thank my University ‘Damodaram Sanjivayya National Law University’
for providing me with all the required e-resources for the completion of my project and I also
came to know many new things.

2
 CERTIFICATE

This is to certify that the dissertation entitled “A COMPARATIVE STUDY OF

ABORTIONS IN INDIA AND USA” for the Seminar Paper Comparative Criminal Procedure
& Offences to Damodaram Sanjivayya National Law University, Visakhapatnam is a record of
original work done by K.Meghana under my supervision and guidance to my satisfaction.

(SIGNATURE OF THE GUIDE)

Visakhapatnam

Date:

3
 TABLE OF CONTENTS
1. List of abbreviations............................................................................................05
2. List of cases.........................................................................................................07
3. Abstract & synopsis.............................................................................................08

Chapter – I

4. Introduction.........................................................................................................11
 What is abortion?

 Reasons for unwanted pregnancies and abortion

 Sociological view on abortion

 Changing the law to benefit women

Chapter – II
5. Abortion and the law in India...............................................................................15
 Introduction
 Law under the Indian Penal Code 1860
 Provisions under MTP Act 1971
 The Medical Termination of Pregnancy (Amendment) Bill, 2020
 Protection of Children from Sexual Offences Act (POSCO), 2012
 Revelation of the Legal Limits of Abortion and Challenging the Abortion
Law
 Need to Change the MTP Law
 The Need to Increase Awareness about the MTP Act

Chapter – III

6. Abortion law in the U.S.A...................................................................................21

 Introduction
 Alabama- The Alabama Human Life Protection Act
 Louisiana- 1061.1.3. Abortion prohibited; detectable foetal heartbeat;
ultrasound required

4
  Georgia- Living Infants Fairness and Equality (LIFE) Act

Chapter – IV

7. Analysis of Historical Precedents...........................................................................27

 Analysis of Right to Abortion in India and U.S.A
 International perspective
 Constitutional outlook on reproductive discretion
 Sex selective abortion
 Reasons behind the Ban on Sex Selective Abortions in India
 Son Preference
 Link between the Pre-Natal-Diagnostic Techniques Act (PNDT) and
MTPA
 Judicial view
 Current situation [statistics]

Chapter – V

8. Landmark judgements on abortion in India and

U.S.A..........................................40
 My view on the abortion law of both countries

Chapter – VI

1. Recommendations and conclusions........................................................................49

2. Bibliography..............................................................................................................50

5
 LIST OF ABBREVIATIONS

Sl. No. Abbreviations Full form

1. & And

2. AIR All India Report

3. Anr Another

4. Art Article

5. COI Constitution of India

6. CrPC Criminal Procedure Code

7. DPSP Directive Principles of State Policy

8. Hon’ble Honorable

9. HP Himachal Pradesh

10. IPC Indian Penal Code

11. MP Madhya Pradesh

12. Ors Others

13. PACE Police and Criminal Evidence Act

14. PIL Public International Law

15. SA Southern Australia

16. SASR Special Air Service Regiment

17. SC Supreme Court

18. SCC Supreme Court Cases

19. Sec Section

20. UK United Kingdom

6
21. UP Uttar Pradesh

22. V Versus

23. U.S.A United states of America

7
 LIST OF CASES

1. Suchita Srivastava and V. Krishnanan

2. Ms.X V. State of Kerala
3. Mrs. X V. Union of India and Ors.
4. X v. Govt. of NCT of Delhi
5. Hallo Bi v. State of Madhya Pradesh
6. Meera Santosh Pal v. Union of India
7. Kavita v. State of Haryana
8. Mamata Verma v. Union of India
9. Shaikh Ayesha Khatoon v. Union of India,
10. Ashaben v. State of Gujarat
11. Bhavikaben v. State of Gujarat
12. Dr. Mangla Dogra v. Anil Kumar Malhotra
13. Swati Agarwal & Ors. v. Union of India.

14. K.S. Puttaswamy Judgement.

15. Roe V. Wade

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 ABSTRACT & SYNOPSIS

INTRODUCTION

Abortion1 is one of the subjects that have been discussed extensively in both national and
international level. It has become a controversial issue all over the world. Everybody is in
dilemma whether a mother has a right to terminate her pregnancy at any time she wishes or an
unborn child has a right to life.

The right to life is a very broad concept and is the most fundamental of all. In India, right to
life has been recognized under Article 21 of the Constitution which says that ‘No person shall
be deprived of his life and personal liberty except according to procedure established by law’.
Person here includes both man and woman. Among various rights which are available to a
woman, the right to abortion is also believed to be one of the most essential and fundamental
right. Right to abortion has been recognized under right to privacy which is a part of right to
personal liberty and which emanates from right to life2. But the question always arises whether
an unborn child should be considered as a human being and be given the status of a person or
not. There are various aspects such as religious, ethics, moral and legal values that rule over
the aspect of right to abortion. Abortion is severely condemned in all religions. But in spite of
that always the question arises whether the mother has a right to abortion or the child has a
right to life. Ronald Dworkin has made a detailed study on the issue of abortion. He did not

1
Abortion is the termination of a pregnancy by the removal or expulsion from the uterus a foetus or embryo
resulting in or causing its death. Abortion can be classified into two types which are the following:

i. Spontaneous Abortion – An abortion which results due to the complications during pregnancy and which
occur unintentionally is called spontaneous abortion. It is also termed as miscarriages.
ii. Induced abortion has also been divided into two types:
— Therapeutic abortion – An abortion which is induced to preserve the health of the mother when her
life is in danger or when it is found that the child if born will be a disabled one at time it is termed
as therapeutic abortion.
— Elective abortion – An abortion induced for any other reason is known as elective abortion. Both
embryo and foetus mean unborn child.

2
Roe V. Wade 410US 113(1973)

9
accept the extreme position taken by the derivative claimers of prohibition of abortion that, the
foetus is a complete moral person from the moment of conception3. Hence the unborn has the
right to live and abortion is a murder or nearly a wrong as murder.

According to Dworkin a foetus has no interest before the third trimester4. A foetus cannot feel
pain until late in pregnancy, because its brain is not sufficiently developed before then. The
scientists have agreed that foetal brain will be sufficiently developed to feel pain from
approximately the twenty sixth weeks5. Thus, whether abortion is against the interest of a foetus
must depend on whether the foetus itself has interests, not on whether interests will develop if
no abortion takes place. Something that is not alive does not have interests. Also, just because
something can develop into a person does not mean it has interests either. once a foetus can
live on its own it may have interests. This is only after the third trimester6.

This paper has been divided into five chapters. Chapter II will examine Indian abortion laws.
Chapter III will look at the abortion laws in America will deal with the comparative analysis
and understanding of abortion. Chapter IV deals with conclusion and suggestions.

HYPOTHESIS:

The hypothesis is that the mother’s right should prevail over the right of unborn.

RESEARCH QUESTION:

To verify the hypothesis I adopted the following research questions:-

1. Meaning of abortion and philosophical background on abortion issues.

2. Abortion laws in India.

3
Ronald Dworkin, Freedom’s Law: The moral reading of the American constitution, 90 (Oxford University Press
ed., 1999)

4
ibid He says that ‘not everything that can be destroyed has an interest in not being destroyed’

5
See Clifford Grobstein, Science and the unborn: choosing Human futures (Basic Books, 1988) p.13

6
Ronald Dworkin, Freedom’s Law: The moral reading of the American constitution, 90 (Oxford University Press
ed., 1999

10
 3. Comparative study with USA
4. Comparative analysis between India and USA

RESEARCH METHODOLOGY

The methodology adopted for the purpose of this research is a doctrinal method. The doctrinal
research involves the analysis of the statutes, case laws, existing secondary information
accessed from various sources, e.g. books, articles, journals, websites etc and a comparative
study with the system of a liberal abortion laws and its understanding in USA.

LITERATURE REVIEW:

 International journal of law management & humanities

Citation: [ISSN 2581-5369] Volume 3 | Issue 3 2020

— In the overall analysis, State policy seeking to achieve population growth through
abortion laws basic philosophy guiding State action in area of reproductive rights in the
India. There is a need for judicial or legislative intervention to clarify the many legal
issues involved. Equally pressing is the need to sensitize the legislature and the
judiciary to the fact that reproductive choices are personal choices with which the State
must not interfere lightly. In this regard, Indian policy makers and judges have much to
learn from the evolution of reproductive rights in the United States. The challenge lies
in the spirit behind the recognition of reproductive rights, and applying it to solve the
social and legal dilemmas peculiar to India. The U.S. judiciary's attitude towards
reproductive rights has undergone drastic transformation in the last half-century. In a
string of decisions, beginning with Roe, the narrow outlook in Buck was abandoned for
a more liberal stand. However, it would be naïve to believe that the U.S. courts have
achieved the perfect balance of interests in issues involving reproductive autonomy,
such as abortion, and forced sterilization.

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 CHAPTER – I

INTRODUCTION

Abortion remains the sensitive matter in most countries, receiving a lot of international
attention not only as a public health concern but also as an ethical and religious issue. Public
discussion on abortion in India has either cantered on declining sex ratios and sex selective
abortions or on the proliferation of clinics across urban areas. Unfortunately, there is much less
public debate on abortion related morbidity and mortality despite several national programs
and campaigns for safe motherhood.

There are various reasons as to why women seek abortion. The reasons appear to range from
such proximate causes as the desire to limit family size or to space pregnancies, the preference
for sons and medical compulsion, to more distant determinants like poverty, violence and local
belief systems.

Abortion has been a controversial issue both nationally and internationally. There are various
factors that trigger a change in the type of abortion law in India and U.S.A. one pertinent
question that has left everybody in dilemma is whether a mother has right to terminate her
pregnancy at her will or the rights of an unborn child take a front seat.

In India, article 21 of the constitution guarantees right to life. Among various rights available
to a woman right to abortion is also believes to be one of its facets right to life abortion has
been recognised under right to privacy which is an aspect of right to personal liberty which
further stems from right to life7. The question that must be considered is the question of foetal
personhood i.e. can an unborn child be given the status of a person or not.

There are various factors that influence abortion such as development, human rights, religion
and legal precedence. A foetus is not a complete person from the moment of conception8. It has
no interest before the third trimester9 the scientist has agreed that the foetal pain can be felt
after the 26th week hence something that has not yet taken birth cannot be said to have
developed its own interest.

7
Roe v. wade 410US 113(1973)
8
Ronald Dworkin, freedoms law: The moral reading of the American constitution, 90(oxford university press
ed,1999)
9
Ibid

12
The first striking finding of a comparative survey of abortion regulation has always been the
fact that a fundamental change has occurred in this area all over the world.

WHAT IS ABORTION ?

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 foetus is born. Such abortions are required to curb
the birth of a baby from unwanted pregnancies.

REASONS FOR UNWANTED PREGNANCIES AND ABORTION :-

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 foetus in the womb is that of a female,
they tend to abort the foetus 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.

CHANGING THE LAW TO BENEFIT WOMEN

Successfully changing the law on abortion is the work of years. Advocates do not get a lot of
chances to change the law and need to decide what they want to end up with before
campaigning for it, with the confidence that whatever they propose has a chance of being
implemented. Another chance may not come again soon.

13
Allies are crucial. Most important are parliamentarians, health professionals, legal experts,
women’s groups and organizations, human rights groups, family planning supporters—and
above all, women themselves. Achieving a critical mass of support among all these groups is
key to successful law reform, as is defeating the opposition, which can have an influence
beyond its numbers.

Those unable to contemplate no law at all must confront the fact that each legal ground for
abortion may be interpreted liberally or narrowly, and thereby implemented differently in
different settings, or may not be implemented at all. The challenge is to define which abortions
should remain criminal and what the punishment should be. Even if only some grounds would
be considered acceptable, the question of who decides and on what basis remains when
reforming existing law.

Wording becomes critical to supporting good practice. For example, grounds which are based
on risk are particularly tricky. The definition of “risk” is itself complex, and the extent of risk
may be hedged with uncertainty. Risk to the woman’s life, health, or mental health and risk of
serious foetal anomaly have been subjected to challenge and disagreement among
professionals. As Christian Fiala, head of the Gynmed Ambulatorium in Austria, has noted,
“There is only one way to be sure a woman’s life is at risk, that is after she dies.”

Read Boland explores the importance of wording in depth with regard to the health
ground for abortion:

The wording of the health indication varies greatly from country to country, particularly given
the range of languages and legal traditions involved. Sometimes there must be a risk to health.
Great Britain’s law, for example- allows abortion where ‘continuance of the pregnancy would
involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental
health of the pregnant woman’ Sometimes - there must be a danger to health. Burkina Faso’s
Penal Code permits abortions when ‘continuation of the pregnancy … endangers the health of
the woman” And in some countries, there must only be medical or health reasons. In Vanuatu,
there must be ‘good medical reasons’, in Djibouti ‘therapeutic reasons’, and in Pakistan a
requirement of “necessary treatment”. These concepts are not necessarily the same.

14
Legislating on second-trimester abortions presents particular difficulties. Many laws say little
or nothing about second-trimester abortions, which has a proscriptive effect. Second-trimester
abortions constitute an estimated 10–15% of abortions globally, but as many as 25% in India
and South Africa due to poor access to services. When they are unsafe, they account for a large
proportion of hospital admissions for treatment of complications and are responsible for a
disproportionate number of deaths. Hence, the law should protect second-trimester abortions
assiduously. Yet social disapproval of these abortions can run high, and laws tend to be
increasingly restrictive as pregnancy progresses, even laws that are liberal with regard to the
first trimester. The mistaken belief that second-trimester abortions can be legislated away
persists, despite the facts. Restrictive abortion laws are being broken on a daily basis by
millions of women and numerous abortion providers. Even in countries where the law is less
restrictive, research shows that the letter of the law is being stretched in all sorts of ways to
accommodate women’s needs. Yet opposition and a stubborn unwillingness to act continue to
hamper efforts to meet women’s need for abortion without restrictions.

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.

1. Pro-choice supporters

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 foetus. 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 foetus. Incest can lead to major abnormalities within the foetus that
would adversely deteriorate the quality of life that the baby will have. In such conditions,
aborting the foetus is considered to be a good option for the women and the foetus. Even in
normal cases, the foetus can develop abnormalities that can limit the age the foetus will survive

15
after birth or other severe abnormalities that can compromise the quality of life of the foetus.
Further, some pregnancies are complicated and its continuation can risk the life of the foetus
as well as the life of the bearing women. Abortion in such situations is also crucial and life-
saving.

2. Pro-life supporters:

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.

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 CHAPTER – II

ABORTION AND THE LAW IN INDIA

Introduction

Prior to 1971, abortions were criminalised under Indian Penal Code, 1860, and notwithstanding
the 1971 Act, continue to be criminalised as of date. In fact, even the pregnant woman could be
found guilty if she self-aborts the child she is carrying. This position was considered
unsatisfactory, and on the basis of the recommendations of the Abortion Study Committee in
1966, the MTP Act was introduced and passed in Parliament.

Law under the Indian Penal Code 1860

The Indian penal code 1860 plays a significant role in prevention of illegal abortions. The
sections dealing with illegal abortion are dealt from sec 312 to sec 316.

Sec 312 of IPC 186010 deals with unlawful termination of pregnancy though the framers of this
code have not used the word ‘abortion’ instead they have used the word miscarriage. The
miscarriage and unborn child have not been defined in IPC. Here causing miscarriage stands
for criminal abortion. Voluntary causing miscarriage is an offence in 2 circumstances when a
woman is with child (as soon as gestation begins) and when she is quick with the child (motion
of the foetus is felt by the mother).

According to sec 312 of this code terminations of pregnancy is only permitted when it is done
in good faith in order to protect the mother’s life in extreme circumstances.

Section 313: 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

10
Sec312 defines the offence of causing miscarriage as follows “whoever voluntarily causes a woman with child
to miscarry shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman
be punished with imprisonment of either description for a firm which may extent to 3 years or with fine or with
both and if the woman be quick with child shall be punished with either imprisonment of a description of a term
which may extend to 7 years and shall be liable to fine.”

17
liable for a fine as decided by the court. offences committed under this section are cognizable,
non-bailable and non-compoundable.

Section 316: 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.

Abortions laws varies from countries to countries some have liberal approach in dealing with
abortion laws and some have stringent laws. Among all countries India adopted the liberal
approach by understanding the need of MTP act in 1971 which derived some exceptions to
provisions of IPC.

Provisions under MTP Act 1971

The Medical Termination of Pregnancy Act, approved in India in 1971 and enacted in 1972,
permits abortion (or MTP) for a broad range of social and medical reasons, including: to save
the life of the woman; to preserve physical health; to preserve mental health; to terminate a
pregnancy resulting from rape or incest and in cases of foetal impairment. Contraceptive failure
also is sufficient ground for legal abortion.11

The termination of pregnancy can only be done through medical professionals up to 12 weeks
and the opinion of 2 medical practitioners is required if termination of pregnancy is done
between 12 to 20 weeks. As per the provisions of this act cannot be termination of pregnancy

11
United Nations 1993

18
after 20 weeks of pregnancy except in special circumstances 12 considered by only medical
practitioners.13

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 Gynaecologist, 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 foetal developments which necessitate medical
termination of the foetus.

Pre-Conception and Pre-Natal Diagnostic Techniques (Regulations and Prevention of Misuse)

Act, 1994

12
Risk to life of a pregnant woman, risk of grave injury to her physical or mental health, if pregnancy is caused
by rape, the child will be born abnormal
13
Upendra Baxi, Abortion and the law in India, journal of the Indian law institute, 1986-87, volume 28-29

19
It is widely prevalent in the nation to carry out sex determination tests so that the female foetus
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 foetus. The act prohibits disclosure
of the sex of the foetus 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 foetus 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 victims can take place even after the
20-week limit has been surpassed.

Revelation of the Legal Limits of Abortion and Challenging the Abortion Law

In 2008, Haresh and Niketa Mehta petitioned Bombay High Court to allow them to abort their
26-week-old foetus who had been diagnosed with a heart defect. For the first time, the national
medical narrative took note of the fact that with the advent of medical technology, pre-natal
diagnosis of defects had come a long way — and some defects could be revealed after 20 weeks

20
has passed. The Mehta’s’ plea was turned down on expert advice. But the court’s observation
that only the legislature could address the demand for change in the legal limit meant that India
started the process of re-evaluating provisions of the Medical Termination of Pregnancy Act,
1971. Niketa, incidentally, had a miscarriage soon after the verdict.14

In 2015, a 14-year-old rape victim from Gujarat sought and received permission from the
Supreme Court to abort after the 20 weeks deadline had passed. Her petition was treated as a
‘special case’, meaning it could not be used as a precedent to grant permission in another case.
Which is why the woman in whose favour the SC decided on Monday — identified in her
petition as ‘Miss X’ — needed to knock on the doors of the apex court afresh?

The draft Medical Termination of Pregnancy (Amendment) Bill, 2014, on which the Health
Ministry has sought and received comments, provides for abortion beyond 20 weeks under
defined conditions. As per the draft law, a healthcare provider may, “in good faith”, decide to
allow abortion between 20 and 24 weeks if, among other conditions, the pregnancy involves
substantial risks to the mother or child, or if it is “alleged by the pregnant woman to have been
caused by rape”.

The draft law also considers the reality of a massive shortage of both doctors and trained
midwives, and seeks to allow Ayurveda, Unani and Siddha practitioners to carry out abortions,
albeit only through medical means, and not surgical ones.

The draft legislation recognises that the anguish caused by pregnancy resulting from rape “may
be presumed to constitute a grave injury to the mental health of the pregnant woman”, and that
such an injury could be a ground for allowing abortion.15

Need to Change the MTP Law

Legal and medical experts feel that a revision of the legal limit for abortion is long overdue.
Foetal abnormalities show up only by 18 weeks, so just a two-week window after that is too
small for the would-be parents to take the difficult call on whether to keep their baby. Even for

14
Jessica Ravitz, the surprising history of abortion in the US, The Indian express, (June 27 2016) available at:
http://indianexpress.com/article/explained/abortion-law-rape-victim-terminate-pregnancy-suprme-court-20-
weeks-pregnant-2935481/
15
Draft of medical bill on abortion

21
the medical practitioner, this window is too small to exhaust all possible options before advising
the patient to take the extreme step.16

Again, the 45 years since the enactment of the law has seen technology break new grounds —
from ultrasound to magnetic resonance imaging to a range of high-end foetal monitoring
devices that have taken prenatal diagnosis far beyond the illegal sex determination tests that
have refused to die out completely.

The rising incidence of sex crimes, and the urgent need to empower women with sexual rights
and choices both in their own interest and for the sake of reducing the fertility rate as a whole,
have made it imperative that the law be changed. In any case — and what is far more worrying
— is the fact that the lack of legal approval does not prevent abortions from being carried out
beyond 20 weeks. And they are done in shady, unhygienic conditions by untrained, unqualified
quacks, putting thousands of women at risk probably every day

The Need to Increase Awareness about the MTP Act

The women and their family members, particularly those who are likely to be involved in the
discussion making process need to be aware about when, where and under what circumstances
abortion can be legally availed of. Women should also be made aware that they have a right to
ask for information and, if necessary, question the quality of care being provided to them17.
They would therefore need to be educated about what constitutes safe quality services. Service
providers, too, need to be clear about the provisions of the act and refrain from allowing their
own apprehensions and /or moral concerns to cloud the issue.

16
Abortion and Divorce in Western Law: Mary and Glendon
17
Visaria and Ramachanfran: Abortion in India, ground realities.

22
 CHAPTER – III

ABORTION LAW IN THE U.S.A

INTRODUCTION

In the 18th century, abortions were allowed in common law and were widely practised. They
were illegal only after quickening i.e. when the pregnant woman could feel the foetus moving.

At conception and at the earliest stage of pregnancy no one believes that a human life existed,
not even the Catholic Church. The popular ethic regarding abortion was grounded in the female
experience of their own bodies.

When abortion became politicized, the church condemned it. The American Medical
Association pushed for state laws to restrict abortions, and most did by 1880.

Even after abortions became illegal, women continued to have them. The work was done
behind closed doors. Abortion rates increased. It was seen as an economic issue than as a
women’s issue.

In the 1950s and 1960s, the estimated number of illegal abortions ranged from 200000 to 1.2
million per year.18

There was a time when abortion was a part of life in the United States. There was no protest,
hue and cry about it.

The sale of drugs that induced abortions was huge and rampant and services were marketed
openly. The drugs were freely available and advertised. If drugs failed, women could approach
the medical practitioners. 19

The abortion laws were first governed because of the problem of drug poisoning not morality,
politics or religion.

18
Reported by the Guttmacher Institute
19
Mary Ann Glendon: Abortion and Divorce in Western Law

23
Since 1973, Roe v Wade20 the court has legalised abortion across the United States. It was held
that the criminal abortion statute which criminalises abortion except to save the life of the
mother is violative of the Due process clause of the fourteenth amendment.21

The word ‘person’ used in the fourteenth amendment does not include the unborn child thereby
eradicating the concept of foetal personhood. Also, when does the life begin cannot be
speculated by it.22 Though the constitution of the United States does not explicitly recognise
the right to privacy but the same can be construed by the judicial precedents. They have brought
it under right to personal liberty. It is broad enough to include the right to choose with respect
to abortion.

Then in 1992 in the case of Planned Parenthood South-eastern Pennsylvania v Casey 23 the
court reaffirmed the Roe’s case. The court held that the undue burden test24 shall be applied to
determine if the state can obstruct the woman’s right to abortion before viability.

The court held that the constitutional protection of woman’s decision to terminate her
pregnancy derives from the due process clause of the fourteenth amendment.

In the case of Whole Woman’s Health v Hellerstedt25 the US Supreme court ruled 5-3 that
Texas cannot place restrictions on the delivery of abortion services that create an undue burden
for women seeking an abortion.

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.

20
410 US 113 (1973)
21
US Supreme Court Reports, Vol 35, The lawyers cooperative publishing co., New York , pg 147-199

16 Ibid
22
(1992) 120 L. Ed. 2d 67
23
(1992) 120 L. Ed 2d 67
24
‘undue burden’ is defined as the effect of placing obstacles in the path of a woman’s choice
25
579, US (2016)

24
 1. 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 not 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

25
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.

2. Louisiana- 1061.1.3. Abortion prohibited; detectable foetal heartbeat; ultrasound

required

This Act makes it a punishable crime to perform abortions after the foetal 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 foetus could not detect
any foetal 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.

26
 3. 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.

27
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.

28
 CHAPTER - IV

ANALYSIS OF HISTORICAL PRECEDENTS

1. Roe v wade

The Constitutional Question:

Whether the constitution gives right to the women to obtain an abortion nullifying the Texas
probation (which criminalizes abortion except to save the life of mother)?

The ruling allows for legal abortions during the entire pregnancy, but set up conditions to allow
states to regulate abortion during the second and third trimesters.

The Decision:

The Court held that a woman's right to an abortion fell within the right to privacy (recognized
in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a
woman a right to abortion during the entirety of the pregnancy and defined different levels of
state interest for regulating abortion in the second and third trimester the Supreme Court said
that the word person does not include unborn child in the fourteenth amendment

2. Planned parenthood southern Pennsylvania v. Casey

This case was decided by the U.S.A Supreme Court in 1992.26 This case law tried to give new
variables to abortion rights to women. The court said instead of adoption trimester framework
‘undue burden test’27 should be adopted to determine whether state regulations has some
purpose of placing substantial obstacles in the path of a women for seeking abortion before
validity.

The due process clause of fourteenth amendment gives constitutional protection to women to
take decision to terminate her pregnancy. It declares that the state shall not deprive any person
life, liberty, or property, without due process of law. This clause is applying to both substantial
and procedural matters28.

26
(1992)120 L. Ed. 2d 67
27
Supra 24
28
(1992) 120 L. Ed. 2d 6, para5

29
Analysis of Right to Abortion in India and U.S.A

U.S.A has recognised right to abortion as a facet of right to privacy. The interest of the unborn
child can be protected by the state only after the stage of viability. 29 The right to choose of
women takes precedence. The woman can get the child aborted on her sole discretion upto 12
weeks of pregnancy. As per the fundamental right of life and liberty, the mother’s health and
life are prioritised over the unborn child. The State cannot interfere without having the
compelling State’s interests of its own. The legitimate interest of the State is in protecting and
preserving the health of the pregnant woman. The courts in the U.S.A have upheld the interest
of the pregnant woman and her rights over her body, thereby allowing her to make decisions.

Since the Supreme Court’s decision in Roe v Wade30 abortion has been available on the request
of the pregnant woman until viability, subject only to regulation after the end of the first
trimester in the interest of protecting the health of the woman. A state law requiring second
trimester abortion to be performed in a hospital was held unconstitutional.

In Planned Parenthood association v Ashcroft 31, calling into question whether any significant
regulation prior to viability would pass constitutional muster. After viability, which the
Supreme Court has estimated as occurring between twenty four and twenty eight weeks, state
regulation to protect the foetus is not constitutionally required but is permitted, except where
abortion is necessary to “preserve the life or health of the mother.”32However, state laws
attempting to require doctors performing abortions to try to preserve the life of a viable foetus
were struck down.33 , casting doubt on the extent to which state regulation in the interests of
the foetus even in late pregnancy will be upheld. 34

In India, IPC and MTPA cumulatively do not confer right to abortion to the woman for
terminating her pregnancy. This ultimate choice affecting the interest of the woman and her

29
Roe V Wade, 410 US 113 (1973), planned parenthood South-eastern Pennsylvania V Casey (1992) 120 L.Ed 2d
67
30
ibid
31
462 U.S. 476 (1983)
32
Ibid
33
Colautti v. Frank, 439 U.S. 379 (1979), Thornburgh v. American college of Obstetricians and Gynaecologists,
54 Law Week 4618(1986)
34
Ibid see also pp.22 – 24, 33 - 39

30
body is taken by medical practitioner. If the medical practitioner in good faith believes that the
pregnancy can be terminated, the woman can go ahead with abortion.

These statutes35 infringe a woman’s right to dignity, right to health, right to privacy which have
been guaranteed by the Indian Constitution under Article 21.

Another problem that the researcher has analysed is about illegal abortions. If medical
practitioners deny abortion to a woman, she resorts to illegal means of abortion which are both
unhealthy and unsafe. In case of a rape, a woman loses her dignity in the society, her first
priority is to survive her reputation than keeping and upbringing the baby. If abortion is not in
demand, she may resort to illegal abortion.

Another conflict that the researcher came across is regarding conflict of interests of the mother
and the unborn child. In India, an unborn has been defined as a legal person by fiction in various
statutes36, the researcher believes that an unborn acquires rights only after being born alive. An
unborn has no interests of its own because its right cannot be recognised. Property right is a
contingent interest upon the unborn. The interest of a living person shall hence be prioritising
over the rights of an unborn. Since, it cannot take decisions; it lacks the capacity to choose.
When the child is in the mother’s womb, it is a part of the mother’s body and she shall have
the sole discretion to take the final choice.

INTERNATIONAL PERSPECTIVE
Capability Women’s to control their reproductive destiny and freely choice to terminate
unwanted and pregnancies is a basic standard of substantive freedom and equality in society.
In the 1990s, this began to recognition of international community in human rights as
reproductive rights. Then in 1994, the International Conference on Population Development in
Cairo (ICPD) recognized human rights, autonomy and gender equality at the view of women’s
sexual and reproductive health, and the 1995 Fourth World Conference on Women in Beijing
(Beijing) too reaffirmed these rights: ‘The human rights of women include their right to have
control over and decide freely and responsibly on matters related to their sexuality, including
sexual and reproductive health, free of coercion, discrimination and violence. ’Reproductive
rights recognized in national and international constitute a bundle of human rights, that are

35
IPC, MTPA
36
Section13 of Transfer of Property Act, 1882, Hindu Succession Act

31
interpreted in a way to support and enhance women’s reproductive freedom, equality and
health.
Abortion law varies from State to State and there is no common unified international law
regarding especially for migrant women or asylum seekers. Internationally the concept of
reproductive rights appeared for the first time in the 1968 Proclamation of Teheran, which
states19 - Parents have a basic human right to determine freely and responsibly the number and
the spacing of their children while The Statute of the International Criminal Court specifically
excludes any interpretation that could provide a basis for asserting an international right to
abortion. In the definition of crimes against humanity, one finds that “‘forced pregnancy’
means the unlawful confinement of a woman forcibly made pregnant, with the intent of
affecting the ethnic composition of any population or carrying out other 15 HEARD grave
violations of international law. This definition shall not in any way be interpreted as affecting
national laws relating to pregnancy” (Article 7(2)(f)). Articles 8(2)(b) (xxii) and 8(2)(e)(vi),
regarding war crimes, incorporate this definition by reference. The second sentence does not,
of course, establish by itself an international right to life for the unborn, but it has a protective
effect insofar as it upholds national legislation that safeguards human life before birth.
The concept of reproductive right is further strengthened by the United Nations Declaration
which states - “The family as a basic unit of society and the natural environment for the growth
and well-being its members, children and youth, should be assisted and protected so that it may
fully assume its responsibilities within the community. Parents have the exclusive right to
determine freely and responsibly the number and spacing of their children”.
International Conference on Population and Development (ICPD) 1994 -The Programme of
Action broadly defined reproductive health to include all issues concerned to the well-being of
the reproductive system and its functions and processes.

Constitutional outlook on reproductive discretion

Any procreative decision is a choice having an immediate effect on the person(s) concerned.
Like marriage and different parts of family life, which limitedly affect the group, it is a range
usually left to singular basic leadership. In this way, by its extreme nature, the privilege to
procreative decision is a part of the privilege to protection or the "right to be not to mention."
None of the constitution i.e. Indian or U.S. expressly perceives the privilege to reproductive
decisions or even the more extensive idea of the privilege to protection. In the U.S., the
privilege to security has accomplished established status on the ground that it is one of the

32
components of "freedom" ensured by the Due Process Clause. 37 U.S. courts have translated the
privilege comprehensively and have extended it to cover various different rights.8 After the
Supreme Court's judgement in Griswold v. Connecticut, it is presently all around settled in
American sacred law that the privilege to privacy is sufficiently wide to shield procreative
decisions from nonsensical State obstruction. In consequent judgements, courts have refuted
necessities of parental assent, partners assent and so on, in premature birth laws on the grounds
of infringement of the privilege to privacy. Thus, in current times, the acknowledgment of the
privilege to protection or the privilege to regenerative decision is not any more a subject of
debate.

Article 21 of the Indian Constitution, which is identical to the Due Process Clause in the U.S.
constitution, utilizes the expression “individual freedom” rather than “freedom.” The
composers of the Indian Constitution planned to limit the assurance managed by the
arrangement to just certain sorts of freedoms identified with the life and individual of a person."
Nevertheless, the Supreme Court has translated the expression "individual freedom" in a wide
way to incorporate distinct liberties that have been allowed under Article 19 of the Indian
Constitution. However, in its initial judgement, for instance, in Kharak Singh v. Territory of
Punjab,38 the Apex Court declined to decipher Article 21 to incorporate the privilege to liberty,
in light of the fact that it is not explicitly given by the Constitution. However, the SC dissented
from the above view in further cases, and the right to privacy came to be recognized. In Gobind
v. Province of M.P. Mathew, J.39, after considering the US law on the point, made right to
privacy1an important fundamental right. Furthermore, it was held that ant restriction on
fundamental Rights will be valid only if it is in the interest of the State. Thus, high parameters
have been set for any impediments on fundamental rights to be valid. By the mid-nineties, the
acknowledgment of the right to privacy as a major right was not any more disagreeable. In fact,
the goal was to recognize the extent of rights.

37
Refer, Griswold v. Connecticut, 381 U.S. 479 (1965). The case was regarding the law which prohibits any person
from using any drug medicine article or instrument for the purpose of preventing conception. The supreme court
by 7-2 majority invalidated the above law and held that even though the right of privacy is not expressly protected
by US constitution such right can be interpreted from due process clause which includes right to marital privacy.
38
Kharak Singh, supra note 6
39
Gobind, supra note 6.

33
As per the test laid down in Gobind's case, the court in R. Rajagopal v. Territory of T.N.,40
laid down the exceptions to the rule of right to privacy. 41 The rule developed by the court was
that the right to privacy is lost if it is in contravention to public security. Therefore, the
restrictions imposed by the state should be analysed. Currently the contention is between right
to privacy and other rights. Regardless of the fact that right to privacy has been incorporated
under article 21, courts have not given them equal importance as other fundamental rights. The
privacy rights have been given secondary treatment by the courts with respect to other rights.
The method of reasoning is by all accounts that the right to privacy is not expressly specified
in the Indian Constitution. The Constitution does not concede to any chain of importance
between Fundamental rights. In this manner, once a right has been brought on the same footing
as the other fundamental rights, it cannot be treated subordinate to any of the fundamental
rights. Thus, subordinating the right to privacy to other basic rights, simply in light of the fact
that its inception lies in various judgements of the courts, has no basis in Indian law.

Sex selective abortion

Sex selective abortions have increased due to the rampant discrimination faced by the girls.
Indian families prefer boys over girls. Before the emergence of pre-natal sex determination
techniques in the 1970s and 1980s, female infanticide was practiced in some regions of India,
(in the north and north-west of the country).

While the deliberate elimination of female infants is thought to have radically declined since
the 18th and 19th centuries, many academic and NGos believe the passive elimination of the
girl-child continues to this day through neglect such as lack of food, reduced immunisation
rates and restricted access to medical care.

40
R. Rajagopal v. State of Tamil Nadu, A.I.R. 1995 S.C. 264; Saroj Rani v. Sudarshan Kumar Chadha, A.I.R. 1984
S.C. 1562.
41
The court confronted with the issue of right to privacy with the freedom of press. the court held that a person
has right to safeguard privacy of his own ,his family, marriage ,procreation, motherhood and education among
other matters .no one can publish anything concerning the above matter without his consent whether truthful or
otherwise except that if any publication of such matters are based on public record including court record it will
be unobjectionable .if the matter becomes a matter of public record than no more right of privacy exist and it
becomes legitimate subject of comment by press and media.

34
Between the ages of one and 59 months, girls in every region in India have higher death rates
than boys, and inequities in access to care, rather than biological or genetic factors are the most
plausible explanation42. A study carried out by the Government’s Ministry of Women and Child
Development found that 70.57% of girls reported neglect of one form or another by family
members; 48.4% of girls wished they had been born a boy; and in Bihar 65.63% of girls
reported being given less food than their brothers.

Since the introduction of sex determination techniques, it has been estimated that between 10
and 60 million girls that should have been born in India have been aborted, with an additional
60,000 going missing every year.43

Reasons behind the Ban on Sex Selective Abortions in India

one of the most commonly cited reasons is that of the history of the dowry in Indian culture.
While Indian law forbids the provision or acceptance of a dowry, the enforcement of the law is
weak, and so families continue to offer and accept dowries and subsequently dowry disputes
remain a serious problem44. The fear of being unable to raise a dowry in the future and the
economic burden that doing so may place on a family, forces families into believing they have
no other option that to abort a female foetus45. Sonography clinics wanting to increase their
own financial gains will often exploit this fear of raising a dowry through their advertising
campaigns by using slogans such as “Invest only Rs. 500 now and save your precious Rs.
500,000 later46. When a woman marries she moves into the family of the husband however the
vice versa is not the culture

Son Preference

In Indian culture, men are also the only ones allowed to perform death rites. Inheritance law in
India is highly patrilineal and discriminatory towards women, resulting in them often being
unable to inherit anything from their families. Even when there are no sons, inheritance will
pass to uncles and male cousins before it reaches female heirs

42
The Million Death Study Collaborators, 2010
43
The Guardian 2011, pg. 11
44
U.S. State Department, 2012
45
UNFPA, 2013
46
The Guardian, 2012

35
Preventing the birth of female child or ensuring the birth of a male one, often under pressure
from conjugal and extended families, is a major reason for abortion in most settings. while the
use of modern sex determination tests is more common in western and northern part of the
country, studies in southern India also show that the women here rely on more traditional
methods of predicting the foetus, their objective is the same: to prevent a female child from
being born. While a campaign mode is increasingly used to address the issue of ‘missing girls’
and to advocate saving the daughters, it is important to access whether these methods are able
to bring about, in the short range, necessary changes I the behaviour of people, and in the long
range, social transformations.47

The UNFPA study ‘Sex-selective abortions and fertility decline in Haryana and Punjab’
revealed that 62,000 sex-selective abortions were recorded in Haryana from 1996 to 1998, with
81% of them involving the abortion of a female foetus. The report also revealed that Haryana
and Punjab had the highest percentage of missing female children under the age of six in the
1991 census.

Link between the Pre-Natal-Diagnostic Techniques Act (PNDT) and MTPA

Although the two legislations are independent of each other, our studies suggest that this
distinction is hard to maintain in actual practise. The wide spread campaign against sex
determination has enhanced awareness of the PNDT act among communities; knowledge of
the legality of abortion services and of the MTPA, however, is still adequate. Under the MTPA
abortion (on economic and social grounds) is one among the many rights that Indian women
enjoy today. Yet there is some evidence that it is being equated with the ban on sex detection
test and with killing of girls48. Further the PNDT act is interpreted to mean that all abortions
(whether sex selective or not) have now become illegal. Surprisingly, even providers often link
the provisions of the two acts. As studies show the most common reason for women to have an
abortion is still linked to limiting and spacing their children (irrespective of sex composition),
and unless we maintain a clear distinction between these two issues and understand the reasons
underlying the PNDT act, efforts to expand access to safe abortions are bound to receive a
setback in the coming years.

47
Supra 16
48
Ibid

36
JUDICIAL VIEW
India
In India, according to provisions of MTP Act does not require any judicial authorization for
such abortion, the Supreme Court and different high courts across the nation have been dealing
trough case to case analysis based on special circumstances to approve or deny abortions
beyond 20 weeks of pregnancy. There have been at least 25 such cases since 2015 to 201849.
These cases mainly involved of pregnant women which were diagnosed of fetal impairment or
either pregnant adolescents who were victims of rape. The judgments comprise of mixed view
of court even in cases where petitioners seeking terminations in seemingly in similar
circumstances. Thus, leading to confusion about the law and the need for reform to solve such
ambiguity.

courts in India have allowed MTP after 20 weeks’ gestation in multiple cases. In the instances
of individual petitions, courts have repeatedly recognized the need to ensure that women and
girls are not in condition of forced pregnancies that may jeopardize their physical or mental
health. Furthermore, the Supreme Court has, at many instances, ordered compensation to
petitioners after they have been denied an abortion, recognizing that the government’s
negligence and inactive attitude led to the such forced continuation of pregnancy and has
caused “incalculable harm and irreversible injury giving rise to emotional trauma.”50

However, there have also been contradictory views on different judgment that leads to
ambiguity as to when a woman is legally allowed under MTP beyond 20 weeks. Courts have
not laid down clear grounds to determine when an MTP is legal permitted beyond 20 weeks,
how to surpass the need for unnecessary judicial and medical board intervention of
authorization, and how to resolve the essential issue of providers’ unwillingness to permit legal
abortions. Notwithstanding of fact that there have been multiple petitions filed to courts across
nation of requesting comprehensive law and policy reform, including one that has been pending
since 2008 in the Supreme Court51.These petitions comprise of requests to consider:
introducing language of recognizing the link between foetal impairment and a women’s
physical and mental health status; extending the health exception to match the life exception,

49
Centre for reproductive rights “Reform to address women’s and girl’s need for abortion after 20 weeks India”
ReproductiveRights.org 18 -19
50
Ms. Z v. The State of Bihar and Others 2017 SCC Online SC 943
51
Mrs. X and Ors. v. Union of India 2017 SCC Online SC 124

37
which does not have a limit; and establishing an appeals process for women who have been
improperly denied abortions, among various other claims involving reform of the law52. The
recent improvement in The MTP (Amendment) Bill, 2020, proposed to increase limit of
abortion from 20 to 24 weeks.

USA
The U.S. Supreme Court made its first attempt to resolve the conflicting interests at the root of
the abortion debate, in Roe v. Wade53. The case challenge to a Texas law which made all
abortions, except those necessary to save the mother's life, illegal. The Court held that the
unborn child does not qualify as a constitutional person and hence, does not enjoy the right to
life. In Roe, the Court also held that the right of privacy under the U.S. Constitution is broad
enough to protect the right to abort. The broad trend in the U. S. after the decision in Roe has
been one of privileging personal liberty and autonomy, and the related right to privacy, over
the interests of the State. Although in Roe, the Court held that there is no absolute right to
privacy, it also declared that this right is a fundamental one, thus paving the way for strict
scrutiny of government regulations relating to abortion. Speaking for the Court, Blackmun, J.
held that the State has an interest in "safeguarding health, in maintaining medical standards,
and in protecting potential life."54
The Court sought to harmonize State interests with the right to reproductive autonomy by
introducing the trimester framework. It was held that in the first trimester of pregnancy, an
abortion poses little danger to maternal health, so that the State cannot be said to have any
interest in regulating abortions. In the second trimester, the State could regulate abortion to the
extent that it reasonably relates to the protection of maternal health. Finally, beyond the period
of viability, the State may prohibit abortion, except where it is necessary to preserve maternal
health. 55
Some aspects of the decision in Roe, that is the rigid trimester framework and the there is
fundamental right to abortion, have been rejected in the case of planned parenthood of southern
Pennsylvania v. Casey56. However, the court once again recognized that pregnancy has too

52
Dr. Nikhil Datar v. Union of India & Others (WP(C) 7702/2014)
53
410 U.S. 113 (1973)
54
ibid
55
ibid
56
Casey, 505 U.S. 833, 912 (1992)

38
great an impact on a women’s life and body for the state to prevent from avoiding such impact,
and deciding to abort the fetus.

U.S. courts have protected the woman's right to abort. Mere is distinctly different from
conferring a person other than the pregnant woman. the husband's legitimate interests in
participating affording him an opportunity to influence decision. Thus, the U.S. judiciary has
erred to the husband's legitimate interests in procreation potential life of his unborn child. It
may long way to go before U.S. courts can be balance between a pregnant woman's right and
her spouse's interests.

Current situation [statistics]:

India:

According to HMIS reports57, In India 216-2017 the rate of abortion of all total figures of
induced abortions taken place took place was 970436 while 10 women died due to unsafe
abortions every day.
As per reports of The Lancet Global Health medical journal- total of 1.56 crore abortions takes
place in India in year India in 2015 while the data of 7 lakh figure as per central government of
India.58Which states that
According to International Institute of Population Sciences, the data of government only
accounts for surgical abortion in state owned hospitals, no data of private hospitals available
with government.
Total of 1.27 crore out of 81% abortions were medication, out of 0.2 crore 14% were surgical,
and out of 8 lakhs only 5% were accounts for using other methods including unsafe methods.59
The major causes of deaths of women accounts from unsafe abortions are-
• High cost of termination of pregnancy.
• Lack of medical facilities in major area of rural,
• Lack of confidentiality

57
The Lancet Global Health medical journal, "The incidence of abortion and unintended pregnancy in India, 2015"
p- e111–e120
58
ibid
59
The Guardian “Abortion laws around the world: from bans to easy access” 5 Jan 2016

39
 • Social stigma especially in case of unmarried women.

Despite the laws governing abortion through Medical Termination of Pregnancy Act (MTP
Act), non-availability of properly trained providers without preparing detailed documentation
with poor knowledge about the legality of abortions in India contributes to most of the major
factors of deaths of women.

U.S.A:

States in USA imposes abortion restrictions of waiting periods to delay women led to closing
of abortion clinics. Imposition of Limit to abortion service providers (clinic) acting as a de
facto ban.

US supreme court order of closing half of all existing state abortion clinics operating. Law
passed by state’s Legislature in 2013 in Texas had reduced from 41 clinics to 20.
Implementation of completely upheld then only 9-10 clinics will remain active operation.
The figure of 5.4 million of women of reproductive age is More than 5.4 million in Texas.

researchers claim that estimated claims that approx. 2 million women in US lives more than 50
miles from the nearest approachable clinic of abortion. In case of only few abortion providers
were left out. But even in possible case that with 20 abortion clinics made almost impractical
and inaccessible for women to have an abortion. In some area women have to wait upto period
of twenty days to have consulted by a medical practitioner which makes the procedure more of
high costly and non-affordable.

According to reports of abortion providers and pro-choice non-profit-making organizations that

there is ambiguity of law in women about legality of abortion in Texas. And even there is
emerging evidences that the law is dangerous. survey in taxes shows dangerous, alarming and
surprise data that 100,000 to 240,000 number of women in Texas have adopted method of
abortion with pills or any sharp object at home.

Abortion laws in US, vary from state to state, the study conducted by “Centers for Disease
Control and Prevention “reported out of 1000 birth 210 abortions.60

60
ibid

40
In 2015, 638,169 case reported from 49 reporting areas of induced legal abortions to CDC. The
abortion rate of 11.8 out of 1000, (age 15 to 44 years) with the abortion ratio of 188 out of 1000
births. while Compared with 2014 data, there 2% decline in rate and ratio of the total number,
rate. Additional data of 2006 to 2015, the reported abortions declined at rate, number and ratio
by 24 percent, 26 percent and 19 percent. In 2015, recoded lowest for the entire time frame of
analysis (2006 —2015).

The most of cases reported of abortions in 2015 were in age of their twenties. The major cases
of abortions (2015) were early period of pregnancy: 91.1% of abortions were at before 13 weeks
period ; and abortions of 7.6% were at 14 to 20 weeks’ pregnancy period , and only 1.3% were
performed at more than 20 weeks’ gestation while 24.6% of all abortions were early medical
abortions which non-surgical abortion at less than 8 weeks’ gestation periods. The increase of
114% from 2006 to 2015 of abortions reported as early medical abortions, with an 8% increase
from 2014 to 2015.61

61
Abortion Surveillance United States, MMWR Surveill Summ 2018

41
 CHAPTER – V

LANDMARK JUDGEMENTS ON ABORTION IN INDIA AND U.S.A

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 foetus 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 foetus was diagnosed
with a disease called bilateral renal agenesis and hydraenids. Bilateral renal agenesis means the
foetus has no kidneys and hydraenids 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 foetus dying inside the mother’s womb. Such death in medical terms is called intrauterine
foetal death. Further, the doctors claimed that even if the pregnancy is continued and the child

42
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 foetus will suffer from pulmonary
hypoplasia leading to severe respiratory insufficiency at birth which makes the foetus
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.

o Permission of judicial authority for abortion

X v. Govt. of NCT of Delhi

– an HIV+ 18-year-old girl was initially denied abortion then the Delhi HC referred S. 3 of
MTP and gave permission.

In Hallo Bi v. State of Madhya Pradesh, a woman under-trial prisoner who was 12-week
pregnant was not allowed abortion by the Chief Magistrate. She then went to the High Court
of Madhya Pradesh; the court allowed her abortion on the standing the forced prosecution is a
form of rape and is covered under Section 3(2) of the Medical Termination of Pregnancy Act
of 1971.

o Abortion post 20 weeks of pregnancy

Meera Santosh Pal v. Union of India, the Supreme Court allowed because there was risk to
the woman’s life by emphasising a woman’s right to reproductive autonomy and bodily
integrity. In High Court on its own Motion v. State of Maharashtra35, the Bombay High Court
said that continuing any unwanted pregnancy to term “represents a violation of the woman’s
bodily integrity and aggravates her mental trauma which would be deleterious to her mental
health.”

Kavita v. State of Haryana, the court disallowed termination of pregnancy because according
to the medical practitioner the life of the minor rape survivor was at risk.

o Foetal impairment

43
Mamata Verma v. Union of India, the court in this case allowed for abortion post 20 weeks
of pregnancy because in the opinion of the medical practitioner there were a number of foetal
impairment and it would be difficult for the foetus to survive outside the womb and also pose
danger to the life of the woman.

Shaikh Ayesha Khatoon v. Union of India, “the Bombay High Court allowed termination of
a 27 weeks’ pregnancy, where there were several foetal impairments and low chances of
independent survival post-birth. The Court also held that in order to meet the object of the MTP
Act and advance the cause of justice, the conditions for medical termination of pregnancy
provided under Section 3(2)(b)(i) & (ii) of the MTP Act should be read into Section 5(1), which
considers termination of pregnancies over 20 weeks. It thus ruled that in cases of foetal
impairments, mental injury caused to the woman would be sufficient to meet the requirement
of Section 5 and denial of her choice to terminate the pregnancy would violate her personal
liberty under Article 21.”39

o Pregnancy resulted from rape

Ashaben v. State of Gujarat

– the Gujarat High Court adopted a strict interpretation of Section 5 of the MTP Act stating that
it allowed termination of pregnancies exceeding 20 weeks only if continuation of pregnancy
would endanger the life of the pregnant woman and not on the ground that the pregnancy
resulted from rape.

o Rape of a minor

Bhavikaben v. State of Gujarat

– the Gujarat High Court allowed medical termination of pregnancy considering the young age
and health of the rape survivor, the grave mental injury caused due to the unwanted pregnancy,
and the medical opinion indicating no risk to her life from termination of pregnancy.

o Spousal consent

Dr. Mangla Dogra v. Anil Kumar Malhotra

– the court rejected the case filed by husband and said that the MTP Act does not require the
husband’s consent for an abortion. The Medical Termination of Pregnancy Act of 1971 does not

44
allow for abortion rather it gives situations in which abortion can be allowed under sections 3
and 5.

This has been challenged in the case of Swati Agarwal & Ors. v. Union of India. A PIL was
filed by Swati Agarwal; Garima Sekseria; Prachi Vats, claiming Sections 3 and 5 of Medical
Termination of Pregnancy Act of 1971 to be in violation of Article 14 and 21 of the Constitution
of India. “The prayers of this petition sought to widen women’s access to safe abortions and
grant them greater reproductive choices. It also asserted that the State has a positive obligation
under Article 21 to guarantee the right to health. Therefore, the petitioners requested the
establishment of safe abortion clinics to reduce maternal mortality.” The Supreme Court has
taken the plea into consideration and has asked Central Government’s opinion on the same.
The court has observed that Section 3 (2) and 3 (3) puts undue burden on the women to exercise
free reproductive choices and their right to privacy keeping in mind the K.S. Puttaswamy
Judgement.

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

45
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 foetuses as persons deserving protection. No consensus exists to regard foetuses as
people, under the definition, deserving all the rights, though, culturally, there exist some groups
that regard foetuses 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 foetus might be “viable” (“capable of meaningful life”) outside the mother’s womb
after six months of growth, a state might constitutionally protect a foetus 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.

My view on the abortion law of both countries: i.e.: India & U.S.A.

The Abortion law adopted by a country greatly depends on the type of legal system/tradition
followed by the country. Adoption law in the common law countries is mostly based on English
law and that in civil law countries mostly is based on “French Napoleonic Code of 1810, the
1939 French version of that Code or the 1979 abortion law of France”. But it should be noted
that even in countries following same legal traditions, the abortion law may vary depending on
various considerations. Abortion jurisprudence in USA showcase true features of a common
law tradition, as federal abortion law in USA is majorly Judge made or court evolved. However,
in India, also a common law country, abortion law is majorly legislation based with little
alterations or rather clarification added by the judiciary.

46
While discussing these two jurisdictions one should not forget the very fact that legalization of
abortion in USA is often seen as a fallout of massive feminist movements and therefore there
it is seen as a matter of personal liberty of a woman and therefore the advocates of pro-abortion
in USA are against the unfavourable state policies on abortions but in India the state is in favour
of abortion and sees it as a tool of family planning due to demographic reasons which leaves
less role for judiciary to play. one may also argue that due to the prevailing social evils like
female feticide and coercion from family members, women’s right to choose never evoked a
backlash in India as for them undergoing an abortion was never a’ free choice’. on the other
hand, the issue of abortion is so integral to the US politics that it is raised in almost every
presidential election and often disputes take place over the medical services and judicial
appointments because of it.

The most important case law with regard to abortion in USA is Roe v/s Wade which liberalized
abortion law in USA recognizing women’s reproductive autonomy and right to bodily integrity.
on the other hand, the reason for liberalizing abortion law in India was not as a step to extend
legal recognition to a woman’s right to reproductive autonomy but the same was done over
paternalistic consideration i.e., to protect the woman from unsafe abortions. These paternalistic
consideration behind the MTP ACT 1971, are clearly illustrated by Shah Committee report and
the statement of objective and reasons of the 1971 Act that states avoiding “wastage of the
mother's health, strength and life” as the major reason for its enactment. The Indian judiciary
has also interpreted the provisions of the Act on paternalistic lines, for example, In Suchita
Srivastava & Anr vs Chandigarh Administration , it was held that the 20 week period limit
in MTP Act “is due to the medical opinion that abortion performed during the later stages of
pregnancy may cause harm to physical health of woman who undergoes abortion”. Thus, the
major focus of the Act as well as the Indian judiciary is on safeguarding the life of the woman
rather than vesting her with the rights over her womb, perhaps this is the major reason as to
why abortion on demand in not available in India unlike USA. USA judiciary has always tried
to strike a balance between the interests of woman and that of State by seeing woman as an
independent, isolated individual who is bound by just self-interests. This could be also
attributed to the anti-statist individualism ideology of USA. In India the power to make decision
as to abortion is shifted from the hand of the women to the medical practitioner(s). Certain
extent of recognition to the right of women to make decision regarding her womb is provided
under 2021 amendment that allows abortion in case of foetal abnormalities without any time
limit.

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Though the abortion laws had originated in the UK as early as 1803, but the credit for
revolutionizing abortion laws and recognizing the right of a woman to terminate her pregnancy
under the ambit of liberty can only be given to the US more specifically to the judiciary, after
the Roe v. Wade judgment. But it seems that the senators and the policy makers in several, if
not all states have tried to whittle down the essence of this case by enacting legislations like
the Unborn Child Pain Awareness Act, 2005 which requires abortionist to tell the women that
she’s killing her child which would cause pain to the child and creating financial barriers
through Hyde Amendment which puts a bar on the use of federal funds to pay for abortions.
Restrictions of varying degrees are imposed by different states in the form of mandatory
waiting period, scripted counselling, late term abortion bans, parental notification for minors
etc. And therefore it won’t be wrong to assume that after adopting the most liberal approach in
1973 in Roe v. Wade decision, both legislation and judiciary have moved towards a
conservative direction.

US government recent oct 2020 decision of becoming a signatory to the Geneva Consensus
Declaration on Promoting Women's Health and Strengthening the Family (which is a anti-
abortion declaration) aims at restricting women right to abortion and provides that there is no
inherent right to abortion, The justification advanced by the US government for such action
was that this declaration “defends the unborn and reiterates the vital importance of the family”.
This shifting of emphasis from woman to family and unborn also highlights US inclement
towards anti-liberal prochoice conservative approach. However later in 2021, prochoice Joe
Biden government has removed USA from the list of signatory.

Thus, it could be seen that prima facie, US’s federal position of abortion is very liberal and
abortion is legalised, contrarily, in India abortion is a crime under S.312 IPC but it is allowed
as an exception under MTP Act 1971.

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 CHAPTER - VI

CONCLUSION AND SUGGESTIONS

When a woman conceives, the time from which the foetus comes to life has not been mentioned
by any statute. The researcher analysed the constitutional provisions of India and U.S.A and
witnessed that a woman has the right to choose abortion and her interest shall precede over the
interest of a foetus as it is still an unborn person.

The researcher believes that India shall liberalise its abortion laws so that women’s rights of
health, dignity, liberty and privacy are not violated. The law must permit abortion according to
the woman’s choice so that illegal abortions and their health hazards are combated. The State
shall also endeavour to protect the maternal health of the woman all the time while, the interest
of the unborn child only after viability. According to the researcher’s findings not all para
functionaries are aware of the MTP act some of the formally trained providers are informed in
general terms, though not necessarily familiar with the situations in which the act is applicable.
Even when they are, many insist that clients fulfil certain requirements that are not mandated
in the act.

For instance, though providers know that the family’s consent is not necessary, most insist on
it in order to protect themselves.

RECOMMENDATIONS
 Need to amend the MTP Act through women centric approach abased on rights,
including
 Providing for the legal basis to terminate of pregnancy at any gestational stage.
 Increase the number of providers who can legally perform abortions before 12 weeks
on request.
 No judicial and medical board authorizations for an abortion even beyond 20 weeks of
pregnancy.
 Amend the Section 19(1) of the Protection of Children from Sexual offenses Act to
ensure that pregnant adolescents are in condition to have access abortion facility
without risk of confidentiality, violated by mandatory clause of act.
 Amend the Indian Penal Code to decriminalize abortion to curb social stigma of
abortion and thus expanding access to safe, legal procedures.

49
  Declare unconstitutional the 20-week gestational time period in Section 3 of the MTP
Act on abortions performed for health risks.

BIBLIOGRAPHY

 Mary Ann Glendeon: Abortion and divorce in Western Law.

 Visaria and Ramachandran: Abortion in India, ground realities
 Upendra Baxi: Abortion and the law in India. Journal of the law institute 1986-87, vol-
28-29.
 US Supreme Courts reports. Vol 35. The Lawyers cooperative publishing co. New York
 Dworkin Ronald Freedoms Law: The moral reading of the American Constitution. 90
(oxford university press ed, 1999)

ONLINE SOURCES :-

 www.manupatra.in
 www.ssconline.in
 www.heinonline.in
 www.jstor.in

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