Right for Abortion: Fighting an Age-old Law

In Bangladesh, according to the Penal Code 1860, abortion is banned unless it is performed to
save a woman’s life. Bangladesh does not recognize ‘abortion’ as a right rather considers as a
crime under the guise of ‘miscarriage’ .

According to section 312 of the Penal Code 1860, whoever voluntarily causes a pregnant woman
to miscarry shall be punished with imprisonment for a term not exceeding three years, or with a
fine, or both, if the miscarriage is not inflected in good faith for the purpose of preserving the
woman’s life. If the lady is hasty with her child, she will be penalized by imprisonment for a
period of up to seven years, as well as a fine. The reason of the woman or her guardian’s consent
for allowing the miscarriage is not excused by the act. Section 313 provides that whoever
causing miscarriage without women’s consent shall be punished with imprisonment for life or
for a term which may extend to ten years, and also with fine. Section 314, section 315, and
section 316 of the Penal Code specifies the severity of the penalties for miscarriage-related
offenses.

According to the petition, an abortion could cause a variety of health complications later in life.
It also prevents a rape victim from accessing an abortion. Advocate Syeda Nasrin wrote in the
writ petition that making abortion illegal encourages many pregnant women to seek secret
abortion from untrustworthy doctors and nurses. In many cases, abortions like these can often
lead to serious health problems or even death. She also stated that if rape victims become
pregnant, they will be unable to abort the unwanted pregnancy, and their lives will be
significantly impacted. The abortion related provisions of section 312 to section 316 of the Penal
Code 1860, according to the petition, are discriminatory and in violation of the fundamental
rights protected by article 27, article 29, article 31, article 32, article 38, and article 42 of the
Constitution.1

1 Dhaka Tribune’s Article About “High Court Issues Ruling on abortion Laws” [ 2020 ] 1(1)
<
https://www.dhakatribune.com/bangladesh/court/2020/08/19/high-court-issues-ruling-on-abortion-laws >
accessed 25 November 2021
According to Guttmacher Institution report, while the Penal Code punishes miscarriage severely,
government regulations allow for menstrual regulation (MR) procedures (for miscarriage) up to
10-12 weeks after a woman’s last menstrual period (depending on the type of provider) and
MRM (MR with medication) up to nine weeks after a woman’s last period. Since 1979,
Bangladesh’s national family planning program has included menstrual regulation (MR).2 Due to
a lack of understanding, ambiguity in the procedures, legal ramifications, and the categorical
prohibition of abortion in general under the Penal Code, many women opt to clandestine and
dangerous abortions despite the availability of MR services.

The argument over whether abortion should be legal continues to rage around the world. It exists
at the intersection of religion, politics, and the law. The ongoing debate between pro-life and pre-
choice supporters jeopardizes a woman’s freedom to control her own body. Despite the fact that
MR services, such as provider shortages in facilities that are expected to deliver MR, a lack of
equipment or providers, and religious or cultural objections. Bangladesh has one of the highest
child marriage rates in the world. According to UNICEF Bangladesh, one-third of teenage girls
aged 15 to 19 are either pregnant or planning to get pregnant.
Early pregnancy can have major health repercussions for young females, including death.
According to the International Centre for Diarrhoeal Disease Research in Bangladesh’s Centre
for Health and Population Research. Abortion was 35 times more common among unmarried
adolescents. Abortion rates are considerably higher among adolescents under the age of 18 who
have not completed secondary school. Approximately 26 percent of women are turned away
from MR facilities, the majority of whom are over the legal gestational age restriction.

Abortion must be a common occurrence in a country like Bangladesh where the number of rape
cases is dangerously high, the birth rate is high, the illiteracy rate is low, and the state bears no
obligation for any child born within its borders. Declaring abortion illegal does not prevent
abortion; rather, it encourages women to put their lives in danger by seeking unsafe abortions
from inexperienced practitioners. This can lead to health problems such as infertility, organ
damage, and death. It further stated that unlawful abortion routes jeopardise the lives of both the

2 Guttmacher.org “Menstrual Regulation and Unsafe Abortion in Bangladesh” [ 2017 ] 1(1) <
https://www.guttmacher.org/fact-sheet/menstrual-regulation-unsafe-abortion-bangladesh > accessed 25
November 2021
woman and the child, causing social stigma and contributing to an increase in orphans and street
children. According to Guttmacher’s Abortion study, an estimated 384,000 women in 2014
experienced problems as a result of a covert abortion. One-third of those who required in facility
treatment did not receive the necessary post-abortion care (PAC). Haemorrhage and incomplete
abortion were the most common problems, but more significant events like shock, sepsis, and
uterine perforation were also observed. The groups most likely to experience complications from
unsafe abortion include poor women, rural women, and young girls.

Section 312 to section 316 of the Penal Code go against Bangladesh Constitution’s fundamental
rights; particularly the right to life and personal liberty. Individual’s rights to life, liberty, and
privacy cannot be violated by the law imposing motherhood or parenting. Regardless of whether
the fetus enters the womb voluntarily, inadvertently, or forcefully, carrying out a fetus should be
a woman's deliberate decision. Motherhood should be a voluntary decision, not a forced one.

According to the Bangladesh Fertility Survey (BFS), 80 percent of married women under 50
agreed to abortion for pregnancy caused by rape or premarital sex, 53 percent agreed when the
mother’s life was in danger, and only 17 percent wanted abortion for economic reasons. As a
result, it is evident that these are several causes behind this and that Bangladeshi women agree
on them. Then there’s the matter of only one reason while other, more significant causes are
neglected.3

In 2017, the Human Rights Committee urged Bangladesh to revise its legislation to provide for
additional exceptions to the overly broad ban on abortion, as well as to ensure that women are
not denied medical services and are not compelled to resort to unsafe abortions that endanger
their lives and health due to legal obstacles, including criminal provisions. Abortion is
stigmatised in Bangladesh due to several misconceptions and deeply ingrained traditional,
cultural and religious views. As a result, legalising the procedure will not only eliminate
dangerous abortion, but will also protect women from social stigma and unexpected pregnancies.

3 Bangladesh Fertility Survey “Attitude Towards Induced Abortion in Bangladesh” 1979 <
https://pubmed.ncbi.nlm.nih.gov/12311297/ > accessed 25 November 2021
It will ensure that both women and children, as well their families, live healthy lives. It is high
time for the present legal laws on this subject to recognise it as a right rather than a crime.

Reference :
1.Dhaka Tribune’s Article About “High Court Issues Ruling on abortion Laws” [ 2020 ] 1(1) <
https://www.dhakatribune.com/bangladesh/court/2020/08/19/high-court-issues-ruling-on-abortion-laws >
accessed 25 November 2021

2. Guttmacher.org “Menstrual Regulation and Unsafe Abortion in Bangladesh” [ 2017 ] 1(1) <
https://www.guttmacher.org/fact-sheet/menstrual-regulation-unsafe-abortion-bangladesh > accessed 25
November 2021

3. Bangladesh Fertility Survey “Attitude Towards Induced Abortion in Bangladesh” 1979 <
https://pubmed.ncbi.nlm.nih.gov/12311297/ > accessed 25 November 2021