ABORTION, A MORAL AND ETHICAL DILEMMA
Name – Ananya P Rau
College – University Law College, Bangalore University
Abortion is a medically induced or surgical procedure that terminates a pregnancy, resulting in the removal of the embryo or foetus from the uterus/ womb of the mother. This can occur naturally which is known as a miscarriage, or be induced through medical intervention. The decision to undergo an abortion is highly personal and influenced by various factors, including individual beliefs, health considerations, and societal context, ability to sustain the child, income considerations, familial obligations among others. The debate around abortion has been a highly controversial one. There are two sides to the debate. Pro-life activists argue that despite an unwanted pregnancy, abortion is not ethical as the fetus has a life of its own, and depriving of it is against natural law. This side of the spectrum advocate for the ban of abortion and for strict legal restrictions to be imposed. The other side of the debate, are the Pro-choice. These group of people advocate that a woman enjoys a bodily right over herself, and in lieu of the same, if a woman thinks she is incapable of sustaining a child as a part of her life, or the pregnancy was unplanned, she has the right to abort the fetus. In India, prior to 1971, the Indian Penal Code, 1860, criminalized abortion. However, due to changing societal norms and to allow reproductive bodily rights to a woman, the Medical Termination of Pregnancy Act, 1971, was passed and it governs abortions in India. The law allows for Registered Medical Practitioners to perform the abortion.
In the case of X v. Principal Secretary Health and Family Welfare Department and Anr, the Supreme Court of India held that the laws cannot be static and must change according to changing society. The reproductive autonomy of a woman cannot be negated. The Supreme Court also held that the time frame of 24 weeks for married women and 20 weeks for unmarried woman, was discriminatory. Subsistence of this distinction would be a blatant violation of the constitutional principle of equality, enshrined under Article 14 of the constitution. Subsequent to the amendment in 2021, The Law is impartial to the married status of the pregnant woman. The debate surrounding abortion also deals with the constitutional safeguards of a woman. The Constitution of India guarantees under Article 21, the Right to life and Personal Liberty. Under the definition of Personal Liberty, falls to right of reproductive autonomy of a woman.
However, in 2023, the debate surrounding abortion came to light once again. In the case of X v. Union of India, the Supreme Court effectively contradicted the above-mentioned judgement. The petitioner in this case had fulfilled all requirements of mental health concerns and had a medical concern, but the court found her unfit under Section 3 (2B) and Section 5 of the MTP Act, 1971. However, the court found that she was not fulfilling the necessary requirements and did not allow the termination of the pregnancy. This contradicted that the Law is Woman-Centric and establishes that if a woman wants to undergo abortion, she has to prove to the court her inability to sustain a child.
The debate surrounding abortion is not confined to the Indian jurisdiction. The Supreme Court of the United States recently, in the case od Roe v. Wade, held that the complete ban on abortions in the state of Texas, USA, was unconstitutional and a woman has the right to take this decision without legal or government interference. The case also addressed the issue of the right of privacy of the woman. The right to privacy expands itself to the decision-making capacity of a woman in terms of her pregnancy and cannot be influenced by a statute or an externally constituted body. Pro-Life activists argue that the fetus has a life and cannot be taken away from it. The Supreme Court of US, in this regard held that, “We need not decide the difficult question of when life begins. When those specialized in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, in this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” Roe, 410 U.S. at 159
In conclusion, the debate on abortion remains highly divisive, with individuals holding diverse and deeply rooted beliefs. Understanding and respecting different perspectives is essential for fostering constructive conversations around this complex and sensitive issue. Public discourse often centres on finding common ground and promoting policies that prioritize women’s health, well-being, and individual rights while considering ethical and moral considerations. It is important to understand the varying view points on culture, ethics and jurisprudence behind the laws of that nation on the topic of abortion. It is imperative to find the balance between bodily autonomy and unnecessary external intervention.
