ILLEGAL ABORTION: EMERGING CRIME IN INDIA

WOMEN AND CRIMINAL LAW

SUBMITTED BY: SUBMITTED TO:

GOVIND SINGH MR. SHUBHAM SRIVASTAVA

ROLL NO- 574 ASSISTANT PROFESSOR

SEM.- 9th NUSRL, RANCHI

NUSRL, RANCHI

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,

RANCHI

INTRODUCTION
Abortion is the termination of a pregnancy by the removal or expulsion from the uterus a
foetus or embryo resulting in or causing its death. Abortion can be classifies in two types:

1. Spontaneous Abortion- It results due to complications during pregnancy and

occur unintentionally and also termed as miscarriages.
2. Induced abortion-
 Therapeutic abortion- An abortion which is induced to preserve the health
of the mother when her life is in danger or when it is found that the child if
born will be a disabled.
 Elective abortion – Induced for any other reason.

Abortion in India was legalised after the enactment of Medical Termination of Pregnancy
Act, 1971 as it was also mentioned in case of Dr Jacob George vs. State of Kerala1 under
Section 3, which permits abortion/miscarriage by a registered practitioner under certain
circumstances. This permission can be granted on three grounds:
(i) Health- when there is danger to the life or risk to the physical or mental health of the
woman;

(ii) Humanitarian - such as, when pregnancy arises from a sex crime like rape or
intercourse with a lunatic woman;

(iii) Eugenic - where there is substantial risk that the child, if born, would suffer from
deformities and diseases.

Abortion in India is legal only up to 20 weeks of pregnancy period under specific conditions

and certain situations which are broadly defined as:

 The continuance of the pregnancy would involve a risk to the life of the pregnant
woman or of grave injury of physical or mental health, or
 There is a substantial risk as if the child were born; he would suffer from such
physical or mental abnormalities as to be seriously handicapped.
As mentioned in case of Dr.Nikhil D. Dattar v Union of India2 where women was restrict
from abortion after 26th week. Therefore she appealed to SC because for continuing

1
JT1994(3)SC225
2
(2008) 110 BOM LR 3293
pregnancy she will suffer along with child will born with serious heart problems. The court
did not grant the couple’s plea, saying medical experts had not categorically stated that the
child would “suffer from serious handicaps”. It also said that their plea for alter in the law
which is regulating abortions in India could only be addressed by the legislature.
After Seven years the amendments to the Medical Termination of Pregnancy Act, 1971,
question raised in which their case triggered but this still in the works. Case discussed in
which 14-year-old rape victim challenged the said act. The girl’s petition to the Supreme
Court seeking permission for abortion beyond 20 weeks has been accepted as a special case,
which is not to be used as a precedent to allow abortions beyond 20 weeks. The Medical
Termination of Pregnancy Act is that although it allows women to access abortion under
certain circumstances, it does not provide the option of abortion as a right. More importantly,
it does not provide for abortion as her right.
Abortion attempted/criminal a tragic event has severe impact on the family, community, and
eventually the nation detailing some very unpleasant truths 3. Abortion is inevitable
phenomenon and primarily a health concern of women but, the failure to address this
preventable maternal disability and death, represents one of the greatest social injustices. In
India it is increasingly being governed by patriarchal interests which more often to curb the
freedom of women to seek abortion as a right. It affects throughout the fertility period of
women. Women literacy and awareness is the key role in privileges of MTP and scenario of
abortion. The lack of commitment on the part of medical and nursing staff to provide prompt,
attentive and emotionally supportive care indirectly dooms women whose lives could easily
be saved.

BACKGROUND OF THE MEDICAL PROFESSION AND

ABORTION IN FOREIGN COUNTRIES
3
Miscarriage‟ is the premature or spontaneous expulsion of the products of conception from the uterus, usually
in the first trimester.
The early abortionists in Europe were lay women healers who practised "medicine" among
the peasantry. When the male dominated profession of medicine emerged as a formidable
force in the mid-nineteenth century, its practitioners went about the task of weakening
competition from all `non-professional' practitioners, a majority of whom were women and
providers of abortion services. The first organised attack on abortion was thus spearheaded by
doctors. The Hippocratic Oath, which provides the basis of medical ethics and forbids
physicians from doing abortions4. It was to this Oath that a person of medical profession
returned for its rationale on the question of abortion.
In the 1859 convention, the American Medical Association (AMA) declared that the practice
of abortion should be crimilized. This was followed a decade later by the Church 5(Hurst,
1991). Thus, by the 1870s, the medical profession and the Church had joined forces in
criminalising abortion and succeeded in prohibiting its practise. Accordingly, the induced
abortion was allowed only for cure purpose of saving the life of woman who is pregnant. This
decree remained in force for a century till 1973 when the Supreme Court initiated the process
of liberalisation through its ruling on the Roe vs Wade case6.
In the UK, the Abortion Act of 1967 allowed abortion services up to time-limit of 28 weeks
of pregnancy. This is added with a cautionary note by the British Medical Association
(BMA), which issued that "the doctor ought to recommend or perform termination after 20
weeks only if he is convinced that the health of the woman is seriously threatened or if there
is good reason to believe that the child will be seriously handicapped7".
As the process of liberalisation of the law on abortion spread across various countries,
international medical organisations were compelled to make their positions clear. Thus
the Declaration of Oslo issued by the World Medical Association in 1970 conceded to the
need to provide abortion services. The document stated: "where the law allows therapeutic
abortion to be performed, the procedure should be performed by a physician competent to do
so in premises approved by the appropriate authority".

ABORTIONS IN INDIA
4
MacKinney Lorren C (1952), `Medical Ethics and Etiquettes in Early Middle Ages: The Persistence of
Hippocratic Ideals', Bulletin of the History of Medicine, Vol. XXVI No.1, and January-February 1952.
5
Hurst Jane (1991). `Abortion in Good Faith: The History of Abortion in the Catholic Church: The Untold
Story' in Conscience, Vol. XII, No.2, March-April 1991.
6
410 U.S. 113 (1973)
7
British Medical Association (1988), Philosophy and Practice of Medical Ethics, BMA, London.
The Medical Termination of Pregnancy (MTP) Act: The MTP Act in India is founded on the
principles of the British act passed by its parliament in 1967. As an opening paragraph states,
the MTP Act is designed "to provide for the termination for certain pregnancies by
registered Medical Practitioners and for matters connected therewith or incidental thereto"
(emphasis added). In essence, it exempts and (attempts to) govern medical practices and its
institutions in nexus to abortion and, subsquently, allows medical liberalisation to supersede
medical criminalisation.
Clearly, the MTP Act does NOT encompass a fundamental right to induced abortion but is
limited to the liberalisation of the conditions under which women may have access to
abortion services provided by approved medical practitioners, as Medical liberalisation,
therefore, requires medicalisation of the exempt conditions mentioned in the Act. Same is
done by spreading the previous medical notifications of saving a pregnant woman to include
medical and psychological morbidity or the potential of such morbidity if the woman is
compel to carry an unwanted pregnancy to full term. Thus from the medical perspective, the
termination of a pregnancy becomes a "therapeutic" intervention rather than a right.
The liberalised law confers a position of predominance on medical practitioners who mediate
women's access to abortion services- pregnancies cannot be terminated in approved centres
unless they are authorised by doctors. The two considerations that are brought into play are
the length and type of pregnancy. According to the Act, the termination of pregnancies up to
12 weeks can be authorised by one doctor while those between 12 to 20 weeks necessitate the
opinions of two doctors. The Act also enjoins doctors to take cognisance of the "actual or
reasonable foreseeable environment" that run the risk of injuring the pregnant woman's
health. In this connection, a pregnancy following rape (marital rape not included) or failure of
contraception (for married women) are mentioned as specific indicators in two separate
explanatory notes. The other health conditions visualised are "physical or mental
abnormalities" that might "seriously handicap" the unborn child8.

8
Clearly, the pregnant woman seeking abortion cannot avoid giving an explanation. To say that pregnancy was
wanted at the time of conception but is unwanted now disqualifies her. She is required to furnish explanations
that fit into the broad liberal though restrictive conditions listed in the Act. This situation keeps the Act open to
differing interpretations. The current pre-occupation with population control and the somewhat dubious
motivations of the medical profession have, ironically, lent a liberal interpretation of the law. However, the
danger that this liberal interpretation could become a restrictive one without a single word of the text being
altered remains. This could easily happen under different socio-economic and demographic compulsions.
The Act also calls for that abortion be conducted legally only by a registered Medical
Practitioner "who hold such experience or training in gynaecology and obstetrics" and done
by him only at a place which is ratified by the appropriate authority (if the facilities available
follow the standards prescribed in the Rules of the Act). This condition is essential and
commendable. However, a liberalised law has little meaning for the many women who wish
to terminate their pregnancies in the absence of well-developed network of abortion facilities.
The MTP Act fails to regard the right to access as a justifiable right and is, therefore,
ineffectual in curbing the incidence of illegal abortions.
As The Government of India has continuously stressed that the medical abortion of pregnancy
ought not to be viewed as a instrument of family planning for the individual or as a method of
constraining the national birth rate. Still, majority of women who have call for an abortion tend
to have at least two living children and to be non-users of contraception. Surely, one study
which declares that up to 80 per cent of the abortion patients were not using any contraceptive
method. Whereas the Government and voluntary family planning organizations have therefore
been attempting to promote acceptance of post-abortion contraception. In addition to the other
effective contraceptive methods that are recommended, sterilization and insertion of an intra-
uterine device have become increasingly popular.

The strong preference for sons under patriarchal traditions and the availability of inexpensive
prenatal diagnostic techniques have resulted in an increased use of prenatal gender tests in
India, even among the rural poor. Whereas some private clinics provide such tests very
effortlessly and then offer a brought on abortion if the parents are not satisfied with the sex of
the foetus. However no authentic figures subsist on the incidence of this practice, highly
coloured sex ratios in areas where such practices are continued to be believed to be common
suggest that a substantial number of female foetuses are aborted annually.

The prominent reasons for trying illegal abortions are found to be due to financial filter,
poverty and social factors like an unmarried, widowed or broke marital status 9. There are two
other crucial studies on the medical effects of induced (legal and illegal) abortions by the
ICMR.
The first was conducted in 1981, "Short term Sequelae of Induced Abortion", and the second,
in 1982, was titled, "Septic Abortion". Most of the studies conducted before 1980 have found

9
Phillips F.S. and Ghouse N. (1976), `Septic Abortion - Three Year Study, 1971-73. Hazards of Septic Abortion
as compared to Medical Termination of Pregnancy at Government Earkine Hospital, Madurai' in Journal of
Obstetrics and Gynaecology of India, 26 (5)
that, at the village level, induced abortion services are predominantly provided by traditional
birth attendants, most of whom are illiterate women.
A community based survey of 10,000 women and 1200 providers (ICMR, 1989) found that
although a majority of the women were aware of induced abortions, more than one third (i.e.
38%) were not aware that conducted abortions could be labelled as `legal' or `illegal'. A
dismaying finding for members of the Task Force was that women in PHC villages were
almost totally unaware about the availability of MTP services at the PHC (except in UP and
Tamil Nadu where they had some knowledge). Women from sub centre villages, where MTP
services were not provided, were more aware about this facility. The Task Force discovered
that ANMs and Lady Health Visitors, who are not authorised to do MTPs, used government
and PHC facilities for conducting abortions in connivance with doctors and thus making
illegal abortions more rampant. Surprisingly, the study discloses that women were unaware of
different types of unauthorised induced abortion even outside a four month maternity period.
Although when women went to some government and PHC doctors they were compel to pay
fees for the services delivered. Most importantly, the study found that a majority of abortions
are still done using typical indigenous methods. Furthermore, it was found that between
literate and not ratified providers, the dimensions of males were importantly high.
Hence, in the post liberalisation period, the suppliers of illegal abortions are not only innate
practitioners but also certified practitioners who may not have registered themselves for
providing MTP services. Similarly, the places where illegal abortions are carried out are not
only the homes and clinics of the indigenous and non-qualified practitioners, but also well-
equipped hospitals and nursing homes which are not registered under the Act. Therefore, all
institutions properly registered under the MTP Act are not necessarily hygienic nor are all
unregistered centres unhygienic.

ABORTION LAWS IN INDIA

The provisions of the Indian Penal Code placed India in the category of those countries with
highly restrictive abortion laws. Code 312 of the Indian Penal Code provided:

Whoever voluntarily causes a woman with child to miscarry shall, if miscarriage be not
carried in good faith for the purposes of saving the life of the woman, be punished with
imprisonment of either description for a term which may extend to three years, or with fine
or with both, and if the woman be quick with child, shall be punished with imprisonment of
either description for a term which may extend to seven years, and shall also be liable to
fine.

Further provisions of the Penal Code provided severe penalties for abortions performed without
the woman’s consent, and for infanticide. The wording of Code 312 makes it evident that only
strictly medical indications were acceptable and the law, in practice, had been so construed.
Until 1971, therefore, abortions in India were governed by the Indian Penal Code of 1862 and
the Code of Criminal Procedure of 1898. The latter lays down the procedure to try persons
violating the substantive law under the former.

In India, abortion is illegal according to the provisions of the Indian Penal Code. Section 312
to Section 318 deal with the needful in the following manner:

* Section 312 - the offence of causing miscarriage.

* Section 313 - causing miscarriage without women's consent.

* Section 314 - death caused by act done with the intent to cause miscarriage.

* Section 315 - acts done with intent to prevent child being born alive or to cause it to
die after birth.

* Section 316 - causing death of quick unborn child by act amounting to culpable
homicide.

Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 is an Act of

the Parliament of India enacted to prohibits female foeticides and catch the down pouring sex
ratio in India. The act forbids prenatal sex determination. Crimes under this act also include
conducting or assisting in the conduct of prenatal diagnostic technique in the unlisted units,
sex selection on a man or woman, guiding PND test for any function other than the one which
is mentioned in the act, sale, distribution, supply, renting etc. of any ultra sound machine or
any other equipment capable of detecting sex of the foetus. However prominent provisions in
the act are

1. The Act allows for the ban of sex selection, before or after conception.
2. It regulates the use of pre-natal diagnostic techniques,
like ultrasound and amniocentesis by allowing them their use only to detect :

a. genetic abnormalities

b. metabolic disorders

c. chromosomal abnormalities

d. certain congenital malformations

e. haemoglobin opathies

f. Sex linked disorders.

3. No laboratory or centre or clinic will conduct any test including ultrasonography for

the purpose of determining the sex of the foetus.
4. No person, including the one who is conducting the procedure as per the law, will
communicate the sex of the foetus to the pregnant woman or her relatives by words,
signs or any other method.
5. Any person who puts an advertisement for pre-natal and pre-conception sex
determination facilities in the form of a notice, circular, label, wrapper or any
document, or advertises through interior or other media in electronic or print form or
engages in any visible representation made by means of hoarding, wall painting,
signal, light, sound, smoke or gas, can be imprisoned for up to three years and fined
Rs. 10,000.
Even after such enactments, the rate of criminal abortions still increases at high rate and
reasons are such which cannot be enlisted but the major reasons for criminal abortions are:

1. Improper implementation of policies framed by the government regarding proper care

of pregnant women.
2. Misuse of medical practices by the doctors.
3. Induced abortions by the family members which are generally illegal in nature.
4. The son preference in such patriarchal society.
5. To the extent improper implementation of abortion legislation.
6. Customary taboos exist in the society.
 Example: In Rajasthan, generally high communities’ people think girl child lead to decrease
their social strata in the society. Therefore they generally kill girl foetus. Because of money
and power they easily hide their acts and move freely.

PROPOSED AMENDMENT OF MTP AND ABORTION LAWS

IN INDIA

The draft Medical Termination of Pregnancy (Amendment) Bill, 2014, on which the Health
Ministry raises certain issues, provides for abortion beyond 20 weeks under defined
conditions. According to the draft law, the decision to liberalized abortion between 20 and 24
weeks can be done “in good faith” by a healthcare provider if, among other conditions, the
pregnancy consist substantial risks to the mother or child, or if it is “averred by the pregnant
woman to have been caused by rape”. A revision of the legal limit for abortion is long
overdue. Whereas the process of rethinking the 44-year-old MTP law has already taken years,
but the issues go beyond the slowness of the process.
In the decades since the law was first enacted, the science on the subject has made enormous
leaps — with the advent of ultrasound, magnetic resonance imaging (MRI) and foetal
monitoring devices, predicting the health of the baby has become more accurate and
sophisticated than anything that was conceivable then. But even that is not the full India
obstetrics story.
Sexual crimes, multiple pregnancies, the lack of decision making powers among women,
social taboos and the crippling shortage of trained midwives and doctors have all contributed
to the creation of a complicated situation in which a large number of abortions take place
under the radar, carried out by quacks.
It is to take on this trouble that the suggested amendments to the MTP Act attempts to allow
Ayurveda, Unani and Siddha practitioners to carry out abortions, despite only through
medical means and not surgical ones. In a sense, say those affected in the drafting of the
amendment Bill, it is a return to the concept of Registered Medical Practitioners with slight
tweaking — they should be called, perhaps, “registered health providers”. Many countries, in
fact, allow nurses to do the first trimester abortions, that is, when the pregnancy is lesser than
12 weeks old.
Where the proposed amendments do move forward is in their reasons for allowing abortion
up to 24 weeks of pregnancy. Medical experts rule out any safety concerns about the mother,
and deem 20 weeks to be too small a window, especially when it is not before 18 weeks that
foetal abnormalities start to show up.
Extending the time up to which an abortion can be legally performed is not just a question of
ensuring the health of the mother and baby. It is also about ensuring access to a qualified
doctor, a hygienic establishment and proper medical care for the mother during and after the
abortion. It is not as though the 20-week ceiling stops expectant mothers with older
pregnancies from undergoing abortion. And more often than not, she does so in the dark — in
surreptitious, dangerous ways that puts her at serious risk and May even kill her.
That the decision to have or not have a baby is not a mechanical one — merely about the
mother’s physical wellbeing — is accepted as a principle in the proposed new Bill. It admits
that the torture caused by pregnancy resulting from rape “may be presumed to establish a
dangerous injury to the mental health of the pregnant woman”. That, in essence, is also the
spirit of the Supreme Court’s “flexible” order on the plea of the young girl.

In 2009, HRLN filed an appeal petition in the Supreme Court of India on behalf of Dr. Nikhil
Datar, a gynaecologist from Mumbai. At her routine 24 week check-up, Dr. Datar’s patient,
Niketa Mehta discovered that her foetus had a severe abnormality. Under the MTP Act, the
Bombay High Court denied Niketa Mehta access to an abortion. The Supreme Court petition
argues that the current Act violates women’s rights to health, life, dignity, and equality. The
case is pending in the Supreme Court. 
Later, HRLN filed a petition Mrs. X and Mrs. Y vs. Union of India & Ors. The petition
argues that the outdated and arbitrary 20-week limit on medical termination of pregnancy
violates women’s fundamental rights to life, health, dignity, and equality. At her first
antenatal check-up, doctors told Mrs. X that her fetus had severe abnormalities and would not
survive more than a few hours after delivery. Mrs. X was 26 weeks pregnant and therefore
could not legally obtain a medical termination of pregnancy under the MTP Act. Mrs. X was
forced to continue the pregnancy, visit the hospital regularly, and participate in social events
to celebrate the birth. After three days of excruciating labor pains, Mrs. X delivered a baby
that ultimately died less than three hours later. In her affidavit Mrs. X states, “The whole
process was extremely painful. In normal circumstances a mother goes through all the
discomfort just for the joy of giving birth to the baby. However in this case there was no joy
as they were aware of the poor outcome of the baby. All this could have been avoided if
pregnancy was terminated in time.”

In the 19th week of her pregnancy, doctors told Mrs. Y that her fetus may have had a
congenital malformation characterized by partial absence of brain tissue.  Additional test
results would not be available until after the 20th week of pregnancy. Under the limits
imposed by the Medical Termination of Pregnancy Act, Mrs. Y was forced to make the
excruciating decision to terminate her pregnancy without a full understanding of the medical
facts.

The proposed amendments would have ensured Niketa Mehta, Mrs. X, and Mrs. Y’s
fundamental rights to health, equality, and bodily autonomy.  For years, activists, the
National Commission for Women, Federation of Obstetric and the Gynaecological Societies
of India (FOGSI), and prominent doctors have advocated for amendments to the MTP Act
that would ensure protections of women’s mental and physical health throughout their
pregnancies.

The amendments expand access to abortion and should trigger increased attention from the
medical community. Amendments that mirror our prayers to the Supreme Court include
extending the upper time limit on abortion to 24 weeks and excluding time limits all together
where doctors have detected substantial foetal abnormalities. All welcomes these proposed
amendments and will continue to advocate for their passage and for compensation for Mrs. X
and Mrs. Y.

August 4, 2017: MTP Amendment bill, 2017, was introduced in the Rajya Sabha which
intended to rise the pregnancy period of abortions to 24 weeks.

January 22, 2018: MTP Amendment bill, 2018, was introduced in the Lok Sabha with the
same demand to substitute the 20 week duration with 24 weeks and added that it should be
raised to 27 weeks in case of a rape survivor.

December 28, 2018: Shashi Tharoor introduced the Women's Sexual, Reproductive and
Menstrual Rights Bill which also sought to do away with the pre-condition of a medical
practitioner’s opinion in case of pregnancies not exceeding 12 weeks. But the proposed bill
did not tamper with the gestation period limit of 20 weeks.
May 29, 2019: Petition filed at the Supreme court by Swati Agarwal, Garima Sekseria and
Prachi Vats also challenged the 20-week gestation limit saying that advancements in science
and technology has made it possible to terminate pregnancies at later stages. It also asked for
amendments in Section 3(2)(a) of the MTP Act on grounds that they violate Article 14 and 21
of the Constitution.

It cited a report by Guttamacher Institute and a few others which suggested that a first
trimester abortion carries less than 0.5 per cent risk of major complications during hospital
care. Section 3(2) of MTP Amendment bill, 2014, had also done away with the requirement
of the opinion of a medical practitioner in case of pregnancies not exceeding 12 weeks.

May 26, 2019: PIL filed by Amit Sahni in the Delhi High Court asking to raise the 20 week
limit to 24 weeks.

May 28, 2019: Delhi High Court issues a notice in plea to the Centre asking to extend the
duration of termination of pregnancy by 4-6 more weeks in case health risks to mother or
foetus.

April 24, 2019: Madras High Court issues notices to the Centre and state governments
seeking their response in extending the period for termination of pregnancy, stating that it is a
matter of urgency. 

August 2, 2019: Affidavit submitted by the Union Health Ministry in response to the PIL
filed by Amit Sahni. The affidavit stated that draft MTP Amendment bill, 2019 has been sent
for inter-ministerial discussion.
RIGHT TO ABORTION OF THE MOTHER VS RIGHT TO
LIFE OF THE UNBORN

Religious, moral, and cultural sensibilities continue to shape abortion laws during the world.
The right to life, the right to liberty, and the right to security of person are main issues of
human rights that are sometimes used as justification for the existence or the exemption of
laws holding abortion. Many countries in which abortion is legal demands that certain
standards be met ready for an abortion to be found, often, but not always, using a trimester-
based system to shape the window in which abortion is still legal to perform. In the instant
debate, arguments confronted in favour of or against abortion focus on either the moral
permissibility of an induced abortion, or justification of laws allowing or not allowing
abortion. Arguments on morality and legality tend to collide and combine, complicating the
issue at hand. Abortion debates, especially referring to abortion laws, are often headed by
advocacy groups belonging to one of two camps. Most frequently those in favour of legal
prohibition of abortion depict themselves as pro-life while those against legal limitations on
abortion describe themselves as pro-choice. Both are used to indicate the central principles in
arguments for and against abortion: "Is the foetus a human being with a fundamental right to
life" for pro-life advocates, and, for those who are pro-choice, "Does a woman have the right
to choose whether or not to have an abortion"

Arguments which favour prohibition of abortion by the anti-abortion activists

The issue of the foetus' life, which raises the question of whether one person's desire for
autonomy can extend to ending another's existence.

1. The killing of innocent is a crime and the foetus is also an innocent life.
2. Many women suffer significant emotional trauma after having an abortion.
3. There is also some evidence that having an abortion may increase a woman's risk of
breast cancer in later life.
4. Some other complications include damage and/or infection to the uterus and the
Fallopian tubes making a woman infertile.
5. Menstrual disturbances can also occur.
 6. Aborting foetuses because they may be disabled sends an implicit message of
rejection to people with disabilities.
7. Another argument is that an embryo (or, in later stages of development, a foetus) is a
human-being, to get protection from the moment of conception and therefore has a
right to life that must be respected.
8. According to this argument, abortion is homicide.

Arguments in favour of legalizing abortion:

a. The first argument is of Bodily Sovereignty. Each woman has the sole right to make
decisions about what happens to her body - no one should force her either to carry or
terminate a pregnancy against her will.· Most abortions are carried out on the grounds of
safeguarding the woman's mental health.
b. Other are situations where abortions has been conducted to safeguard the life of a foetus,
as it would incurred risk if pregnancy is continued, it might damage the foetus resulting in
peril to the life of the mother.
c. If abortion is forbidden, or just more restricted, we would come back to the days of 'back-
street abortions'. In the past this has been accompanied by wild claims of the risk to
women's health from these procedures. The women resort to some unhygienic measures
to abort the foetus.
d. Act of doing an abortion to save the mother's life when happens, however, the principle is
not that the foetus is seen to have less value as compared to the mother, but that if no
action has been taken both will die. Aborting the foetus at least saves the mother's life.
e. If suppose abortion is banned, a woman does not want to carry her pregnancy, she would
carry it and then abandon the new born child. This would be more dangerous to the life of
the baby. Thus, it is better to terminate the pregnancy at an earlier stage.
f. Although in ancient and primitive times there were widespread practices of abortion and
infanticide among savage, semi-civilized and even sophisticated races, the later period
provided a better status to the unborn children. This is evident from the punishment and
compensation provided in Old Testament for hurting a pregnant woman. The unborn was
handled as equal to human being at least for the purposes of its protection. But as times
have produced revolutionary changes, each person has a right to bodily sovereignty and
Human rights instruments protect these rights internationally. Thus it becomes important
to secure the right to abortion to every woman.
 CASE LAWS

D. Rajeswari vs. State of Tamil Nadu and Others10

The case, is of an unmarried girl of 18 years who is praying for issue of a direction to
terminate the pregnancy of the child in her womb, on the ground that bearing the unwanted
pregnancy of the child of three months made her to become mentally ill and the continuance
of pregnancy has caused great anguish in her mind, which would result in a grave injury to
her mental health, since the pregnancy was caused by rape. The Court granted the permission
to terminate the pregnancy.

Dr. Nisha Malviya and Anr. Vs. State of M.P11

The accused had committed rape on minor girl aged about 12 years and made her pregnant.
The allegations are that two other co-accused took this girl, and they terminated her
pregnancy. So the charge on them is firstly causing miscarriage without consent of girl. The
Court held all the three accused guilty of termination of pregnancy which was not consented
by the mother or the girl.

Murari Mohan Koley vs the State12 

In this case, a woman wanted to have abortion on the ground that she has a 6 months old
daughter. She approached the petitioner for an abortion. And the petitioner agreed to it for a
consideration. But somehow the condition of the woman worsened in the hospital and she
was shifted to another hospital. But it resulted in her death. The abortion was not done.

The petitioner who was a registered medical practitioner had to establish that his action was
done in good faith (includes omission as well) so that he can get exemption from any criminal
liability under section 3 of the MTP Act, 1971.

10
1996 CriLJ 3795
11
2000 CriLJ 671
12
(2004) 3 CALLT 609 HC
Shri Bhagwan Katariya and Others vs State of M.P13

Abortion without mothers consent 2000. The woman was married to Navneet. Applicants are
younger brothers of said Navneet while Bhagwan Katariya was the father of said Navneet.
After the complainant conceived pregnancy, the husband and the other family members took
an exception to it, took her for abortion and without her consent got the abortion done.

The Court opined that if we refer Section 3 of the Medical Termination of Pregnancy Act,
1971, a doctor is entitled to terminate the pregnancy under particular circumstances and if the
pregnancy was terminated in accordance with the provisions of law, it must be presumed that
without the consent of the woman it could not be done. Present is a case where a permanent
scar has been carved on the heart and soul of the woman by depriving her of her child. And
the Doctor will be liable.

Thus, the case laws show that a woman has an absolute right to abortion and no one can take
away this right from her. The Judiciary has been playing a vital role in securing these rights
to women. Right to abortion is a fundamental right of privacy.

CONCLUSION
13
2001 (4) MPHT 20 CG
The debate on abortion and the role of a liberal law in a country like India must take
cognisance, at the very least, of the provision of general health care services. With about 73%
of India's population living in rural areas, the provision of free, rational and universally
accessible health care is crucially important at all times to all people. It is important to
understand the pathways through which women seek and obtain medical abortion services
and how women’s situations and their characteristics affect their likelihood of having an
abortion once they have experienced an unintended pregnancy, as well as their likelihood of
being able to access safe services. Data on these issues can be used to design information and
education campaigns that will help women access the services they need. Finally, while much
has been accomplished to increase access to safe abortion services for women in India, there
is still much work to be done. As reflected in multiple reproductive health indices cited in the
background section of this report, inequities persist and have disproportionate negative
effects on women in the central, northern and eastern regions, rural women, those who are
socially and economically disadvantaged, young or unmarried. Early marriage remains
common in India; women and girls continue to face gender discrimination, including (but not
limited to) sex-selective practices, and access to sexual and reproductive health services,
including safe abortion, is limited for the majority of the population. Addressing the root
causes of gender discrimination and son preference is critically important and should be
pursued hand in hand with efforts to improve access to safe services and dispel ignorance and
misinformation about the legality of abortion. Improving women’s access to information and
services and understanding of their rights and entitlements will facilitate greater control over
their reproductive health decisions, thereby promoting healthier outcomes.

RECOMMENDATION AND SUGGESTION

The right to safe abortion, to determine when and if to become a parent and the right to
healthy sexuality is an issue of both human rights and of social justice. Induced abortion is
one of the most commonly performed medical interventions. Making abortion illegal does not
reduce the number of abortions. Access to safe abortion and legalization of abortion can
prevent unnecessary suffering and death of women.

In countries where abortion is legal and available, abortion is an extremely safe procedure. 
Making abortion illegal does not reduce the number of abortions; it simply reduces the safety
of abortion. According to The World Health Organization (WHO) 20 million of the 42
million abortions performed every year are illegal and unsafe. In every country, it is young,
rural and low-income women who bear the most suffering from unsafe abortion.  These
women are often already mothers, struggling to support the children they already have.  With
no safe options, women try to abort using sharp instruments or unsafe chemicals, or they seek
help from people with no medical training. As a result, a woman dies of an unsafe abortion
every 10 minutes (about 47 000 women every year).

Death from unsafe abortion is totally preventable.  Worldwide more than 1/3 of all
pregnancies are unplanned. Every year nearly 1/4 of all pregnant women worldwide choose
to have an abortion (approximately 42 million women annually). Induced abortion is one of
the most commonly performed medical interventions in every country in the world. The
legalization of abortion can prevent unnecessary harm and death for millions of women
around the world.

Currently, approximately 25% of the world population lives in many countries (mainly in
Africa, Latin America and Asia) with highly restrictive laws that either ban abortion entirely
or permit it only to save the life of the pregnant women.  These restrictive abortion laws
violate women's human rights based on agreements made at the UN International Conference
on Population and Development in Cairo, the Fourth World Conference on Women in
Beijing, the Universal Declaration of Human Rights, International Covenant on Economic,
Social and Cultural Rights.

It is time to make abortion legal, safe and accessible in every country of the world, so that the
right to health is a reality for every woman, regardless of age, race, income or geography.
Even India legalise abortion after the advent of MTP Act up to 20 weeks but its improper
implementation still make abortion in India illegal. There is need of amendment for
betterment of the women health and the future of our country.

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