The medical process or operation used to end pregnancies is referred to as an abortion. By the end of the 19th century, abortion was regulated by law in almost all the nations. The main inspirations for such legislation came from the European imperial powers, notably from Britain, France, Portugal, Spain, and Italy, which enacted abortion bans on their colonies.
The Soviet Union changed its abortion regulations first, thanks to feminist Alexandra Kollantai, whose October 1920 order on women’s health care was the impetus for the move. The need to promote smaller families for population and environmental reasons, the development of alternative solutions to childbearing as a result of women’s education and improved socioeconomic status, and arguments related to public health and human rights have all been used to support pro-women abortion law reform since that time.
Numerous regional and international human rights treaties, national constitutions, and other legal documents all safeguard the fundamental human right of a person to a safe and legal abortion. A plethora of laws that these instruments assist to enshrine all safeguard the freedom from inhuman, and improper treatment and the rights to life, privacy, equality, liberty and non-discrimination as well. Humanitarian organizations usually point out how these criteria are violated by restrictive abortion regulations. Looking at where abortion is allowed will show you where women and girls are treated fairly and given the freedom to live the lives in a way they want.
The Indian Supreme Court ruled that all the women, including those who are not married, are allowed to terminate their pregnancies through abortion up to 24 weeks. The court’s decision came in response to a request for clarification regarding the 2021 abortion law amendment, which listed numerous groups but omitted single women from its list. The court determined that regardless of her marital status, every woman has the right to a safe and legal abortion. Excluding unmarried women from consenting relationships would be “unconstitutional,” it claimed. Advocates for reproductive rights praised the ruling, saying it ensured that the law does not discriminate and gives single women access to safe and legal abortions. Before this reform, a married woman was permitted to terminate their pregnancies up to twenty-four weeks, but single women were only permitted to get an abortion up to 20 weeks. The court increased the 24-week time limit to apply to all women.
Despite the fact that abortion has been legal in India since 1971, the government has imposed tight regulations on who is allowed to end a pregnancy because of the country’s high rate of abortions of female foetuses, which has resulted in a horrendously unequal gender ratio. Indians typically preferred having sons as children over daughters. Last year, the government modified the Medical Termination of Pregnancy Act (MTP), which controls abortions, to let specific types of women to undergo abortions between 20 and 24 weeks of pregnancy. Women who had been raped, children, those with mental problems, those who were pregnant with seriously abnormal foetuses, married women, and pregnant women whose marital status had changed were all on the list. In light of the most recent decision, it was made plain that the amendment did not distinguish between married and single women and that it also required to take into consideration single women who are in consensual relationships. The panel of judges ruled that a woman’s marital status cannot be used as an excuse to deny her the right to abort an unwanted pregnancy. The SC’s recent case dealing with abortion laws was X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi.
“Married women may also form the part of the class of survivors of sexual assault or rape. The ordinary meaning of the word rape is sexual intercourse with a person without consent or against their will. Regardless of whether such forced intercourse occurs in the context of matrimony, a woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband.”[1]
HISTORY OF ABORTION LAWS IN INDIA
In the past, women who sought abortions risked imprisonment for up to three to seven years. This rule was only altered in situations where the life of the woman who was pregnant was in danger. But Shantilal Shah, who was then minister of public health, law, and judiciary, stated in 1966 that this law needed to be liberalised since it was too restrictive as society developed. The Medical Termination of Pregnancy Act of 1971 was therefore created, becoming the country of India’s first abortion law. If approved by the doctors, abortion was permissible in accordance with the legislation. Although progressive, this act served more as a means of controlling India’s rapidly expanding population, particularly in the lower socioeconomic areas of the nation than as a direct outcome of the women’s movement in that country. The legal limit on gestational age (20 weeks) has never been without controversy. A revised MTP Act that, subject to a few restrictions, allows abortions up to 24 weeks into a pregnancy took effect in 2021. The new Act increased the cap for sex assault victims, children, widows, divorcees, mentally ill women, pregnant women, women in emergencies, and women who are physically or mentally ill.
If the intentional induction of a miscarriage was not done in an honest effort to save the woman’s life, it is a crime under Section 312[2] of the IPC. The Medical Termination of Pregnancy Act, established by the Parliament in 1971, gave registered medical professionals the right to perform abortions under a number of predetermined conditions. In accordance with its terms, the bill exempted physicians who performed abortions from prosecution under Section 312 IPC. Women’s access to abortions is not unrestricted by the law. Up to a certain point, abortions are permissible based on medical advice in certain situations. The legal maximum for abortion was set at 20 weeks when the law was first passed in 1971. Abortion is now legal for women in certain circumstances up to 24 weeks with the 2021 amendment. A Medical Board must diagnose “substantial foetal abnormalities” in order for abortion to be legal after the 2021 amendment. After the 2021 amendment, terminating a pregnancy up to twenty weeks will only require the medical advice of one doctor. Prior to that, a 12-week pregnancy might have been ended with the advice of one doctor. After the 2021 amendment, only pregnancies between 20 and 24 weeks will require the opinions of two doctors. But to end a pregnancy at any moment, a 4-member medical board’s opinion is necessary on the ground of “substantial foetal abnormalities”.
According to medical opinion, abortion is permitted if:
- The pregnant woman’s life would be in danger, or she would suffer major physical or mental harm; or
- Where a considerable risk is there that the child will be born with severe physical or mental disabilities.
Pregnant women who claim that their pregnancy was the result of rape are believed to have suffered severe harm to their mental health as a result of the stress this causes. It is believed that “unwanted pregnancy” induced by the failure of contraception measures will seriously harm the woman’s mental health and can be aborted.
The Government of India published the Medical Termination of Pregnancy (Amendment) Rules 2021 on October 12, 2021, outlining the categories of women who are permitted to abort pregnancies up to 24 weeks. They are:
- Those who have endured sexual assault, rape, or incest;
- minors;
- alteration of marital status while still pregnant (widowhood and divorce);
- women with significant physical impairments, as defined by the Rights of Persons with Disabilities Act of 2016 (49 of 2016);
- women who are mentally ill including mental retardation;
- the foetal abnormality that poses a significant threat to life or that, if the child is born, will have such severe physical or mental impairments as to be severely disabled; and
- those who are pregnant in humanitarian conditions, disasters, or other emergencies that the government may proclaim.
Even after the amendment, the act is more doctor-centric than woman-centric.[3]
ROE V. WADE
The Roe v. Wade decision, which established a precedent that there exists a right to safe abortion, has now been overturned by the US Supreme Court, sparking a firestorm of debate. The ruling put forward in Roe v. Wade, which had deemed the right to a safe abortion to be a constitutional right in the country, was overruled by the Supreme Court of US on 24th of June, 2022.
The US Supreme Court’s ruling has drawn harsh criticism from human rights advocates and well-known public personalities, including Joe Biden, Kamala Harris, Bernie Sanders, former US President Barack Obama, Michelle Obama, and foreign leaders like Emmanuel Macron and Justin Trudeau. As a result of the decision, individual states are now able to restrict or outright ban the right to an abortion, ending 50 years of legal protection.
IRELAND’S ABORTION REFERENDUM
When Ireland’s citizens voted in 2018 to repeal the nation’s onerous abortion regulations, one of the most amazing changes in abortion rights was on display. Within 12 weeks of pregnancy, a woman can now choose to have an abortion. However, according to the legislation, people who assist in an unlawful abortion can still be detained and face up to 14 years in prison.
Abortion became unlawful for the first time in Ireland in 1861 after the Offenses Against Person Act was passed. When Ireland broke away from the UK in 1922, that statute became part of Irish law. In the early 1980s, some Catholic anti-abortion organisations feared that Ireland would liberalise its abortion laws in step with other Western nations. A number of Catholic organisations collaborated on the Pro Life Amendment Campaign. They began advocating the concept of making Ireland a role model for anti-abortion countries by placing a ban on abortion in both the nation’s law and constitution.
As a result of that endeavour, a constitutional referendum was successfully passed in 1983, putting a stop to a contentious election in which only 54% of eligible voters participated. The eighth constitutional amendment in Ireland ” acknowledges the mother’s equal right to life, while also giving due consideration to the right to life of the foetus.” This religiously based anti-abortion proposal is comparable to religiously based anti-abortion laws already in place in various U.S. states, such as Kentucky, which restricts private health insurance coverage of abortion, and Texas, which prohibits abortion after six weeks of pregnancy.
The fight to legalise abortion raged for 35 years following the Irish referendum’s success. In 2018, a new vote was held to re-amend the Irish constitution to legalise abortion up to 12 weeks gestation. This process includes numerous court cases, proposed constitutional amendments, and significant agitation.
Dr. Halappanavar, and her husband lived in Galway and were expecting their first child. on October 21, when she went to the hospital complaining about the pain in her back while 17 weeks pregnant, she learned that she was miscarrying, everything changed. Since Ireland was “a Catholic country,” she was instructed that it would be illegal to terminate the pregnancy while the heart of the foetus was beating. She had been repeatedly denied access to an abortion, so she needed to wait days until her heartbeat stopped. Her womb’s contents were removed on October 27. At that stage, she was already infected, and the following day, septicaemia took her life. Uncertainty regarding the nation’s abortion laws was found to have contributed to her death, according to an examination by Ireland’s National Health Service. The opponents of abortion contended that her tragic death should not be used under any circumstance, as fuel to campaign against the 8th Amendment. They claimed that the virus, not the severe rules, was what killed her.
In the “X case,” a rape victim who was just 14 years old was prevented from travelling to Britain in 1992 in order to get an abortion. Her name was never revealed to protect her privacy.
As the resounding decision to repeal the amendment was given, people were mentioning Dr. Halappanavar. They yelled Savita’s name while waving her posters. The Irish was told by Mr. Yalagi that his family was “really, really happy” to learn about the ban on abortion being lifted.[4] The 8th amendment to the Irish Constitution was put to a vote on September 7, 1983. The amendment, which changed section 3 of Article 40 to include a new subsection, was as follows: “The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”[5] Therefore, the Irish referendum is not a “happily ever after,” not an end, but rather a “once upon a time” of a story that is just getting started to be put together by women all over the world.[6]
POSITION OF OTHER COUNTRIES
The Center for Reproductive Rights, a global advocacy organization, estimates that 24 countries, where 90 million or 5% of women of reproductive age live, have abortion restrictions. The list includes countries in Africa like Senegal, Mauritania, and Egypt; Asia like Laos and the Philippines; Central America like El Salvador and Honduras; and Europe like Poland and Malta.
Abortions are entirely prohibited in Malta, the only nation in the European Union. Poland outlawed abortions in nearly all circumstances starting in 2021, with the exception of rape, incest, and situations which endangered the mother’s life. In El Salvador, several women who had abortions were adjudicated guilty of “aggravated homicide,” which included miscarriage cases. Abortions are heavily limited or even prohibited in several African countries. Nigeria only allows the procedure when the life of the mother is endangered. In the meanwhile, it is permitted in rape, incest, and cases of foetal abnormalities in Zimbabwe and Botswana.
Abortions are legal in almost 50 nations, including Libya, Indonesia, Nigeria, Iran, and Venezuela, if the woman’s health is in danger. Others permit it when there has been rape, incest, or foetal abnormalities. For instance, only rape or a handicap of the foetus qualifies for abortion in Brazil.
Except for gestational limits, there are not many restrictions in Canada, Australia, or a large portion of Europe. Following widespread protests by pro-choice organisations and women’s rights campaigners, many historically conservative Catholic nations in Europe and Latin America have increased abortion rights. The last remaining UK country to allow abortions was the neighbouring Northern Ireland in 2019, which lifted the restriction. 2020 saw the decriminalisation of abortions in New Zealand, bringing the legal window up to 20 weeks of pregnancy. Prior to that, an abortion required the consent of two doctors and was only performed in extreme circumstances when a serious threat was posed to the woman’s health because of the pregnancy.
OTHER ISSUES
A significant section of the LGBTQIA+ community who experience pregnancy and require access to legal abortions and sexual and reproductive health services is often left out by India’s abortion laws and healthcare system. The MTP Act, 2021 in India authorises some abortions, but it does not entirely provide pregnant people authority over their reproductive choices, according to experts.
The MTP Amendment Act as a whole expressly refers to “women” who are pregnant, excluding any gender-diverse individuals for whom access to abortion is essential. “Person” should be used instead of “woman.” Everyone who is physically able to become pregnant should have access to services related to reproductive health as well as equal legal protection.
The Bill ignores the deadline by which the medical board must make a decision since delays could complicate the procedure. This should’ve been taken into consideration as usually these kinds of procedures take a lot of time. Additionally, the WHO doesn’t set a cap on how late a pregnancy can be terminated. Healthcare professionals do not believe that women’s rights to privacy, autonomy, and dignity when it comes to reproductive decisions are important.
CONCLUSION
Since the ability to have a safe abortion is a fundamental human right, everyone should have access to it. Roe v. Wade was overturned, which resulted in repercussions and condemnation. However, the lives of those who are giving birth should always come first, and their free will and the right to their own bodies should always be respected. Although there are few restrictions, abortion has been legal in many nations. However, in the years to come, we can anticipate this to change.
[1] X v Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi 2022, SCC OnLine SC 1321 (India).
[2] The Indian Penal Code, 1860, No. 45 (India).
[3] Urshita Saxena, Analysis of Abortion Laws in India: Need for Global March to Ensure Autonomy in Reproductive Choices, 4(2) 1612, 1613 (2021).
[4] Nytimes.Com, (May 27, 2018), https://www.nytimes.com/2018/05/27/world/europe/savita-halappanavar-ireland-abortion.html.
[5] Apoorva Mandhani, Ireland’s Abortion Referendum: It Was In The Death Of An Indian Woman That The Irish Found Their Voice, (May 28, 2018), https://www.livelaw.in/irelands-abortion-referendum-it-was-in-the-death-of-an-indian-woman-that-the-irish-found-their-voice/.
[6] Ibid.
Author: Ishika Ishanvi
Juris Centre 