Contemplating Abortion Rights from an International and Domestic Perspective

Komal Tiwari, a fourth year student at NUSRL, Ranchi, writes about the ethical and legal debate surrounding abortion.

Pregnancy is one of the most life altering event in a woman’s life. There is an irreversible change of the mind body and heart. Hence, having a child should be a conscious decision. Unwanted and unwarranted pregnancies resulting in child birth cause extreme mental emotional and financial stress to the mother. It can put an end to her education and employment. Human rights experts at the United Nations have time and again urged the states to legalize abortion in their states, stating that women have the right to bodily autonomy and should be able to make autonomous decisions about her pregnancy. This is at the very core of her fundamental right to equality, privacy and physical and mental integrity. The human rights experts have urged the international community[1] to move forward in this issue and provide access to safe and legal means of abortion and other reproductive rights for women.

Abortion as a way of ending unwanted pregnancies has stirred passionate debates among societies across the globe. The practice has been considered unethical and immoral across cultures and has  faced vehement opposition. The “pro life v. pro choice” debate comes into picture when an individual tries to assert abortion as a matter of right.

If we keep a panoramic view of the laws and policies relating to abortion across the globe we will find that almost all countries in the past had criminalized abortion, with few countries allowing it in cases of emergency when the life of mother was at risk. The European countries like UK, Finland, Denmark, France have been among the firsts to reform abortion laws in their countries and make abortion legal.

In the US landmark cases like Griswold v Connecticut[2] and Roe v Wade[3] have brought in the abortion law reforms for the country and have also changed the global temperament towards legalisation of abortion. Griswold v Connecticut upheld that the choice of a married couple to use contraceptive methods is a matter of their private discourse and any intervention of the state in such matters should be an abridgement of the right to privacy of the individual. This stands in direct contravention to the American Constitution. Roe v Wade is considered as the champion of abortion rights as it upholds that the right to abortion at the core of right to privacy and bodily and reproductive autonomy of a women, both these principles being enshrined in their constitution.

However, abortion advocacy has taken a new turn with the promulgation of CEDAW[4]. Right to reproductive health has been included as a part of right to health, right to life, right to privacy.

International human rights bodies have characterized the laws criminalizing abortion as discriminatory and a barrier to women’s access to health care. Article 16 of CEDAW says that it is discriminatory on the part of the state if it legally denies the women the right to reproductive health care facilities. The state cannot put barriers for these women to avail the required health care services. Article 6 of the International Covenant on Civil and Political Rights brings under its penumbra the right to reproductive autonomy.

In India, prior to the enactment of the Medical Termination of Pregnancy Act in 1971, abortion had been made illegal vide section 312 of the Indian Penal Code, 1860. The MTP Act, 1971 provides a legal framework making comprehensive abortion care[5] services available in India. Termination of pregnancy is permitted for a limited number of complications and for up to 20 weeks of gestation.

It is not necessary to remind that pregnancies resulting from rape require utmost care and attention and the will of the victim to carry the pregnancy should be the sole guiding force. A woman’s suffering in such cases are heartbreaking more so if the victim is a minor or a disabled person who does not even fully understand what has happened with her. One such particular case that strikes out for me is the story in 2013, Kanchana, a 19-year-old woman with an intellectual disability from a village in Hooghly district in West Bengal, was raped on multiple occasions by a man from her neighbourhood. Kanchana was unaware that she should report that she was raped, which was only discovered when she was discovered to be five-months pregnant[6]. In many cases, physically and mentally disabled women even deliver, not knowing what to do with the child afterwards.

Even today, religious states look down upon abortion and want to put a blanket ban on the practice. Till date, termination of pregnancy is conditionally allowed and up to a certain time duration of the gestation period. It is strongly believed that the fetus is also a new life, however inside the mother’s body, and killing a person is tantamount to murder. The competing claim is, putting regulations upon abortion amounts to taking away the bodily autonomy and the right to reproductive health of the woman. The spurious debate of “pro life v pro choice” that was sparked with the Roe v Wade case is an ongoing one. The policies and legislation around abortion is highly influenced by the socio-political temperament of the time in question. As seen recently with the “ global gag rule[7]” being enforced by the Trump administration, which advertises itself as being “pro life”, have decided withdraw federal funds from those foreign NGO’s that have been providing abortion services. This move has attracted a lot of negative attention from the global media.

Abortion is at the heart of debates like a women’s right to bodily autonomy versus a state’s duty to protect the life of an unborn. It also raises fundamental questions about the human existence such as when life begins and what exactly makes us human. These questions sure do not have any objective and easy answers. There are multiple factors that play a guiding role in determining whose life and whose rights we are to give importance to. A careful and balanced approach should be adopted to ascribe the extent of importance of each of these multiple factors, which play a pivotal role in deciding the course of action. A state should exercise its duty to protect life through a regime of counseling rather than using the threat of criminal punishment. Women suffer grave health problems and lose their lives due to criminalisation of abortion in the past. The courts in the past have put a check upon this duty of the state to protect life itself by stating that a women’s right to bodily autonomy must be respected, however only when the pregnancy poses a threat to her life. International community today awaits the awakening that states safeguarding the “dignity of life” need not achieve that by undermining the women’s right to dignity and bodily autonomy and treat women as a mere instrument of child bearing.

[1]https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23644&LangID=E

[2] 381 US 479 (1965)

[3] 410 US 113 (1973)

[4] Convention on elimination of discrimination against women, 1979.

[5] http://www.nrhmhp.gov.in/content/comprehensive-abortion-care-cac

[6]https://www.hrw.org/report/2018/04/03/invisible-victims-sexual-violence/access-justice-women-and-girls-disabilities

[7]https://www.theguardian.com/world/ng-interactive/2018/jun/30/abortion-supreme-court-law-anthony-kennedy

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