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Abortion – offence or a right?
|বাংলােদশ
গণমাধ েমর াধীনতােক অপরাধ
সাব কর হেল : আইিব
িডিজটাল িনরাপ আইন বািতেলর নােম নতুন
মাড়েক মূলত একই ধরেনর িনবতনমূলক ধার
স িলত সাইবার িনরাপ আইন (িসএসএ) ২০২…
Bangladesh does not recognise 'abortion' as a right rather considers the ৫০ িমিনট আেগ
same as an o ence under the garb of the term 'miscarriage'. Abortion
indicates the intentional termination of pregnancy whereas miscarriage is |বাংলােদশ
the spontaneous or unplanned expulsion of a fetus from the womb. আ. লীেগর পে ভাট চাওয়
Keeping the distinction between 'abortion' and 'miscarriage' aside, this
article discusses the legal landscape of Bangladesh regarding 'abortion' জামালপর িডিসেক বদিল
with a comparative analysis of USA, UK and India. ৫৫ িমিনট আেগ
Section of the Penal Code, provides that whoever voluntarily
causes a pregnant woman 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 for a term which may extend to three years,
or with ne, or both. If the woman be quick with child, shall be punished
with imprisonment for a term which may extend to seven years, and also
with ne. The consent of the woman or of her guardian to the causing of
such miscarriage does not justify the act. Section provides that
whoever causing miscarriage without women's consent shall be punished
with imprisonment for life, or for a term which may extend to ten years,
and also with ne. Sections , and provide some additional
provisions for severe punishment for committing o ences relating to
miscarriage.
In a country like Bangladesh, where the number of rape cases is
alarmingly high, desire to have male issues is still pressing, birth rate is
high, illiteracy rate is pessimistic, and the State does not bear the
responsibility of any child born within its territory, abortion cannot but
be a frequent phenomenon. The illegal route to abortion results in several
kinds of complex problems including unsafe abortion endangering the
life of woman and child, suicide, social stigma and other forms of
physical and mental torture for the women.
While the Penal Code provides severe punishment for miscarriage, the
Government regulations allow for MR (Menstrual Regulation) procedures
(for miscarriage) up to – weeks after a woman's last menstrual period
(depending on the type of provider), and MRM (MR using Medication) is
allowed up to nine weeks after a woman's last menstrual period as per the
Guttmacher Institute report. Menstrual regulation (MR) has been a part of
Bangladesh's national family planning program since . MR is a
procedure that uses manual vacuum aspiration or a combination of
mifepristone and misoprostol to regulate the menstrual cycle when
menstruation is absent for a short duration.
The Constitution of Bangladesh protects the rights to life, body, privacy,
and liberty. It is submitted that giving birth to a child and accepting
motherhood is a vital part of the right to life and liberty. But the
provisions of Penal Code which is a colonial holdover, are expressly
violative of our Constitution. Law cannot impose motherhood or
parenthood respecting the individuals' rights to life, liberty, and privacy.
Because, carrying out a fetus in womb should be the deliberate decision
of a woman- regardless of whether the fetus come in the womb
intentionally, unintentionally or forcefully. Motherhood should be a
choice – out of free will, not compulsion.
Abortion is legal in USA and also in most of the countries of North
America. Before Roe v. Wade ( ) abortion was illegal in most of the
States of USA since Common law had prevailed there wherein the
injunctions were similar to those of our Penal Code. In Roe v. Wade, the
Supreme Court of USA by majority decision declared the statutes in
question regarding abortion unconstitutional, mainly on the grounds of
woman's right to privacy, absolute right to her body and her absolute
entitlement to terminate her pregnancy at whatever time, in whatever
way and for whatever reason she chooses.
Under English Common Law, abortion was illegal. Therefore, the British
applied the same in Indian sub-continent. But now abortion is legal
throughout the UK like many other countries of Europe. After severe
moral and political debate over this issue, the Abortion Act, was
passed making abortion legal all over the UK. Unfortunately, the colonial
relics are still present in our legal realm while the colonisers have
changed their laws.
Abortion is legal in India in certain circumstances. It can be performed
on various grounds till weeks of pregnancy. In exceptional cases, a
court may allow a termination after weeks. In , the Medical
Termination of Pregnancy Act came into force allowing for termination of
pregnancy on certain grounds, amongst others, when continuation of
pregnancy is a risk to the life of a pregnant woman or could cause grave
injury to her physical or mental health, when there is substantial risk that
the child (if born or dead) would be seriously handicapped due to physical
or mental abnormalities and others.
Menstruation Manual for family planning in Bangladesh shows the
practical necessity and positive intention of the policy makers in favour of
abortion. Making the process legal will not only prevent the unsafe
abortion but also save women from social stigma and unwanted
pregnancy. It will ensure a healthy life both for the women and children
along with their families. It is high time the existing provisions of law on
this issue recognised it as a 'right' rather than as an 'o ence'.
The writer is an Advocate, Supreme Court of Bangladesh.
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