• LexGaze Admin

A Woman's Right on Her Womb

Updated: Aug 22, 2020

[This article is authored by Ashi Jain, Bharati Vidyapeeth's New Law College]

"Abortion: the expulsion of a fetus from the uterus before it has reached the stage of viability"


Medically, abortion means the removal of the fertilized ovum within the first three months of pregnancy. It is also known as an induced miscarriage or induced termination. Throughout history, abortion has stirred up several controversies and debates all over the world. The entire debate revolving around abortion is pro-life versus pro-choice. It can be said that abortion is the combination of one’s personal beliefs or choices and the government’s ethical limit. Under various statutes [1], an unborn child is recognized as a legal person by fiction and acquires interest only after birth. Bombay HC echoes primacy of women’s rights declaring that according to international law, a person is vested with human rights only at birth; an unborn fetus is not an entity with human rights. [2] Abortion Laws in India

The attitude of the Indian Government has changed over the centuries regarding abortion. In 1960, when numerous countries across the world reposed their abortion laws, significant pressure was built upon the Indian Government to take necessary steps regarding the same in the country. Thereafter, a committee was formed, headed by Shantilal Shah to give suggestions on legalizing abortion in India.  The Medical Termination of Pregnancy Act, 1971 was thus enacted in India. The MTP Act allowed abortion before or up to 20 weeks of gestation, only when there is a risk to the life of the pregnant woman or in the cases of grave injury, either physical or mental and when there is a high chance of physical or mental abnormalities if the child were born. This Act states that it is compulsory to get the approval for abortion and opinion which is formed in good faith, of two medical practitioners if the pregnancy exceeds 12 weeks. The validity of this Act was upheld by the Apex Court in Nand Kishore Sharma v. UOI. [3] Though the act has been a remarkable achievement for women’s health when it was enacted back in those times, it does not legalize abortion from a “women’s rights” perspective rather it aims necessarily at protecting the medical providers under the Indian Penal Code (Section 312-316). Women or the State

The main thrust stated by the US Supreme Court in the landmark case Roe v. Wade [4] was: women have the absolute right to make decisions about their bodies and their reproductive system based on privacy rights. The Right to Privacy may be stated as “The right to be left alone, or to be free of government scrutiny into one’s private beliefs and behavior.” On August 24th, 2017 a nine-judge bench of the Supreme Court of India in the case namely Justice K S Puttaswamy v. Union of India [5], with one accord, asserted that privacy is a fundamental right under the Constitution of India. The bench acknowledged Privacy as an inviolable and inalienable right. The judgment specifically identified that the right of women to make reproductive choices is a part of personal liberty enlisted under Article 21 of the Constitution of India. [6] The bench also reiterated the judgment by a three-judge bench in the case of Suchita Srivastava v. Chandigarh Administration (2009), [7] where it was held that reproductive rights duly include a woman’s right to carry a pregnancy to its full term, to give birth, and to raise children; and that these rights form part of a woman’s right to privacy, dignity, and bodily integrity mentioned in Article 21 of the Constitution. It is difficult to find the balance between the right to privacy of a woman and the state's interest regarding the protection of life, but that doesn't give the state any right to impose rules and bills which are baseless and a threat to the dignity of women as well as in violation of their rights. The state is in no power to command a woman whether to keep a pregnancy or not. Pregnancy is not always planned. There are numerous reasons for seeking abortion varying from pregnancy due to crimes like Rape, Marital Rape, or financial instability, emotional trauma, career-related issues, or problems in the marriage too. No woman ever wants to give birth to a child and not be able to provide with the best of resources. Women seeking abortion or the decision to keep the child should be of their own and not dependent on some medical provider’s opinion or be regulated by the state’s law. Legalization of Abortion

Worldwide, an estimated 1 in 4 pregnancies end in an abortion every year. But while the need for abortion is common, access to safe and legal abortion is far from being provided to those who need them. Access to safe and legal abortion is one of the most debated topics globally, and the debate is clouded by misinformation about the true ramifications of restricting access to this basic healthcare service. Ending a pregnancy as thought otherwise, is a very common decision which is taken by millions of people every year. People very often require and even access abortion services in spite of it being illegal in their countries. According to the Guttmacher Institute, a US-based reproductive health non-profit, The abortion rate is 37 per 1,000 women in countries that prohibit it altogether or allow it only to save a woman’s life, and 34 per 1,000 in countries that allow abortion without restrictions, a difference that is not statistically significant. [8] When an abortion is performed under sanitary conditions by a trained health-care provider, it is one of the safest medical procedures available to us. But at the same time when the governments restrict abortions and make it difficult to avail, people are left with no choice but to resort to surreptitious and unsafe abortions.  All these attempts to ban or restrict abortions do not reduce the number of abortions, but instead, only force people to seek out unsafe abortions in secrecy. Unsafe abortion as defined by the World Health Organization (WHO) is, “a procedure for terminating an unintended pregnancy carried out either by persons lacking the necessary skills or in an environment that does not conform to minimal medical standards or both.” [9] Where on one hand legalized abortions are performed by trained medical-providers, unsafe abortions, on the other hand, are performed by unskilled people and have fatal consequences. So much that according to WHO, unsafe abortions are the third leading cause of maternal deaths worldwide. The legalization of abortion is necessary as the power to delay and limit bearing children is fundamentally right for women empowerment. A well-timed pregnancy may prove to give a healthier life to a child in comparison to the untimely pregnancies. Abortion Laws Worldwide

The laws governing abortion vary widely from country to country. Countries like Chile, El Salvador, and Nicaragua ban the procedure of abortion entirely whereas some countries in Canada, the United States, and other places do not restrict the same. Recently, the passing and signing of the state's controversial - a near-total abortion ban bill by the Alabama Senate and Gov. Kay Ivey stirred a wave of protests all across the world. People raised their voices against the bill on the grounds of its constitutionality, violation of the right to life, and the say of women. The United Nations also declared that abortion is a right to life issue. It states that "Every human being has the inherent right to life and that this right shall be protected by law”. [10] The bill not only opposes the right to life but also violates the Right to Health And Healthcare and Women's Reproductive Right which includes the right to legal and safe abortion. Conclusion

Humanity stands above law. It is time for us to respect and accept the choices and decisions of women. We must realize that it is not our right to interfere with the freedom of a women's choice. To have an abortion or not is the choice of personal interest and the government should not interfere in it. By restricting abortions all at once, the government is not only ceasing safe abortions but is, in turn, promoting illegal abortions in society. In a nutshell, abortion must be made legal as women have the absolute right of making decisions about their reproductive systems and, also because they possess the power to exercise that particular right regardless of any government policy.


[1] Transfer of Property Act, 1882, Section 13.

[2] High Court on its Own Motion v. State of Maharashtra, 2016 SCC Online Bom 8426.

[3] Nand Kishore Sharma v. Union of India, AIR 200 Raj 166.

[4] Roe v. Wade (1973): 410 US 113.

[5] Justice K S Puttaswamy v. Union of India (2017) 10 SCC 1.

[6] Reproductive and Sexual Rights of Women in India, available here

[7] Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1.

[8] Induced Abortion Worldwide, available here

[9] Preventing Unsafe Abortion, available here

[10] Right to Life, available here

©Image Courtesy: Reuters, see here.


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