Abortion - Is the fOetus a human being with a fundamental right to life ?
In a landmark judgment, Bombay High Court on 4th of August 2008 refused to grant permission for termination of pregnancy beyond 20 weeks after rejecting a petition filed by a couple, seeking an amendment to the Medical Termination of Pregnancy (MTP) Act by allowing abortion of a 25 week fetus, diagnosed with an heart ailment. A division bench, consisting of Justice J N Patel and Justice K K Tatde, in their order, questioned that once there is life can you kill it?, saying that the report submitted by medical experts of A government run hospital did not indicate that child will have abnormalities.
The court passed the order in response to a petition filed by a Mumbai gynecologist and the couple.
It was found out only in the twenty-fourth week of the pregnancy that the fetus had a congenital heart block. Doctors opined that the child would need a pacemaker right from the time of birth and the quality of its life would be poor.
Gynecologist also reported that some ailments in the fetus are detected only between the 20th and the 24th week of pregnancy.
However, according to the current law, pregnancy cannot be terminated beyond 20 weeks. Considering the fact that an abortion at this advanced stage is illegal, the medical practitioners refused to abort the child. The law at present permits conditional abortions within 20 weeks of pregnancy. Many doctors believe
Medical termination of pregnancy commonly known as MTP or abortion was a sin to many. Several extremist and orthodox groups do believe that abortion must be forbidden. Abortion is a deadly issue in the
Other nations have seen violence related to the issue of abortion – which essentially boils down to a tussle between two viewpoints –
“a woman’s right to terminate her pregnancy vs. the belief that life begins at conception, and hence abortion is murder”
The moral and legal aspects of abortion are subject to intense social debate in many parts of the world. Most of the nations have legalized abortions in certain circumstances.
When facing with difficult situations such as pregnancy from rape or incest, or a scenario where the risk to a pregnant person’s life is too great, many pro-life advocates concede an abortion is acceptable. Likewise, many pro-choice activists seek to limit the time frame for abortions, opposing late term abortions as unethical.
What is an abortion? An abortion is the removal or expulsion of an embryo or fetus from the uterus, resulting in or caused by its death. The spontaneous expulsion of a fetus or embryo before the 20th week of gestational age is commonly known as a miscarriage. Induced abortion is the removal or expulsion of an embryo or fetus by medical, surgical, or other means at any point during human pregnancy for therapeutic or elective reasons. Throughout recorded history, abortion has been induced by various traditional medicine methods, including botanical abortifacients, the use of sharpened tools, and abdominal pressure.
Spontaneous abortion is the expulsion of an embryo or fetus due to accidental trauma or natural causes. Most miscarriages are due to incorrect replication of chromosomes; they can also be caused by environmental factors. Spontaneous abortions, generally referred to as miscarriages, occur when an embryo or fetus is lost due to natural causes before the 20th week of gestation. A pregnancy that ends between 20 and 37 weeks of gestation, if it results in a live-born infant, is known as a "premature birth". When a fetus dies in utero after about 20 weeks, or during delivery, it is termed a "stillbirth".
Induced abortion : . Induced abortion can be traced to ancient times. There is evidence to suggest that, historically, pregnancies were terminated through a number of methods, including the administration of abortifacient herbs, the use of sharpened implements, the application of abdominal pressure, and other techniques.
The manner selected depends chiefly upon the gestational age of the embryo or fetus, in addition to the legality, regional availability, and doctor-patient preference for specific procedures. Reasons for procuring induced abortions are typically characterized as either therapeutic or elective. An abortion is considered to be therapeutic when it is performed to:
Induced abortion is done to save the life of the pregnant woman, to preserve the woman's physical or mental health, to terminate pregnancy that would result in a child born with a congenital disorder that would be fatal or associated with significant morbidity, to selectively reduce the number of fetuses to lessen health risks associated with multiple pregnancy. An abortion is considered to be elective if it is performed for any other reason.
In the first 12 weeks, suction-aspiration or vacuum abortion is the most common method Manual Vacuum aspiration (MVA) abortion, consists of removing the fetus or embryo by suction using a manual syringe, while electric vacuum aspiration (EVA) abortion uses an electric pump. From the 15th week until approximately the 26th, dilation and evacuation (D&E) is used. D&E consists of opening the cervix of the uterus and emptying it using surgical instruments and suction. Dilation and curettage (D&C), the second most common method of abortion, is a standard gynecological procedure performed for a variety of reasons, including examination of the uterine lining for possible malignancy, investigation of abnormal bleeding, and abortion. Curettage refers to cleaning the walls of the uterus with a curette. The World Health Organization recommends this procedure, also called sharp curettage, only when MVA is unavailable. From the 20th to 23rd week of gestation, an injection to stop the fetal heart can be used as the first phase of the surgical abortion procedure to ensure that the fetus is not born alive.
It has been estimated that approximately 46 million abortions are performed worldwide every year. Of these, 26 million are said to occur in places where abortion is legal; the other 20 million happen where the procedure is illegal. Some countries, such as Belgium (11.2 per 100 known pregnancies) and the Netherlands (10.6 per 100), have a low rate of induced abortion, while others like Russia (62.6 per 100) and Vietnam (43.7 per 100) have a comparatively high rate. The world ratio is 26 induced abortions per 100 known pregnancies.
Some abortions are undergone as the result of societal pressures. These might include the stigmatization of disabled persons, preference for children of a specific sex, disapproval of single motherhood, insufficient economic support for families, lack of access to or rejection of contraceptive methods, or efforts toward population control (such as China's one-child policy). These factors can sometimes result in compulsory abortion or sex-selective abortion.
The risk of complications can increase depending on how far pregnancy has progressed Early-term surgical abortion is a simple procedure which is safer than childbirth when performed before the 16th week. In a 1979 study of 2,299 patients, 97% reported experiencing some degree of pain. Patients rated the pain as being less than earache or toothache, but more than headache or backache.
Some practitioners advocate using minimal anesthesia so the patient can alert them to possible complications. Others recommend general anesthesia, to prevent patient movement, which might cause a perforation. General anesthesia carries its own risks, including death, which is why public health officials recommend against its routine use.
In 1919, Soviet Union,
The advent of both sonography and amniocentesis has allowed parents to determine sex before birth. This has led to the occurrence of sex-selective abortion or the targeted termination of a fetus based upon its sex. The preference for male children is reported in many areas of Asia, and abortion used to limit female births has been reported in Mainland China, Taiwan, South Korea, and India.
In India, during the 1970s and '80s, there seen advertisements for services which read, "Invest 500 rupees [for a sex test] now, save 50,000 rupees [for a dowry] later." In 1991, the male-to-female sex ratio in
Prenatal diagnosis is helpful for:
Ø Finding conditions that may affect future pregnancies
Ø Planning for possible complications with the birth process
Ø Managing the remaining weeks of the pregnancy
Ø Determining the outcome of the pregnancy and
Ø Deciding whether to continue the pregnancy
There are a variety of non-invasive and invasive techniques available for prenatal diagnosis. Each of them can be applied only during specific time periods during the pregnancy for greatest utility. The techniques employed for prenatal diagnosis include:
v Chorionic villus sampling
v Fetal blood cells in maternal blood
v Maternal serum alpha-fetoprotein
v Maternal serum beta-HCG
v Maternal serum estriol
The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, was enacted and brought into operation from 1st January, 1996, in order to check female foeticide. Rules have also been framed under the Act. The Act prohibits determination and disclosure of the sex of foetus . It also prohibits any advertisements relating to pre-natal determination of sex and prescribes punishment for its contravention. The person who contravenes the provisions of this Act is punishable with imprisonment and fine.
The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 seeks to prohibit pre-natal diagnostic techniques for determination of sex of the foetus leading to female foeticide. During recent years, certain inadequacies and practical difficulties in the administration of the said Act have come to the notice of the Government, which has necessitated amendments in the said Act.
The pre-natal diagnostic techniques like amniocentesis and sonography are useful for the detection of genetic or chromosomal disorders or congenital malformations or sex linked disorders, etc. However, the amniocentesis and sonography are being used on a large scale to detect the sex of the foetus and to terminate the pregnancy of the unborn child if found to be female. Techniques are also being develped to select the sex of child before conception. These practices and techniques are considered discriminatory to the female sex and not conducive to the dignity of the women.
The proliferation of the technologies mentioned above may, in future, precipitate a catastrophe, in the form of severe imbalance in male-female ratio. The State is also duty bound to intervene in such matters to uphold the welfare of the society, especially of the women and children. It is, therefore, necessary to enact and implement in letter and spirit a legislation to ban the pre-conception sex selection techniques and the misuse of pre-natal diagnostic techniques for sex-selective abortions and to provide for the regulation of such abortions. Such a law is also needed to uphold medical ethics and initiate the process of regulation of medical technology in the larger interests of the society.
Accordingly, it is proposed to amend the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 with a view to banning the use of both sex selection techniques prior to conception as well as the misuse of pre-natal diagnostic techniques for sex selective abortions and to regulate such techniques with a view to ensuring their scientific use for which they are intended.
This amendment Act is called the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002. It amended ceratin sections and included new one.
In this Act the following points are material:
v “pre-natal diagnostic procedures” means all gynecological or obstetrical or medical procedures such as ultrasonography, foetoscopy, taking or removing samples of amniotic fluid, chorionic villi, embryo, blood or any other tissue or fluid of a man, or of a woman before or after conception, for being sent to a Genetic Laboratory or Genetic Clinic for conducting any type of analysis or pre-natal diagnostic tests for selection of sex before or after conception;’;
v “pre-natal diagnostic test” means ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood or any tissue or fluid of a pregnant woman or conceptus conducted to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies or haemoglobinopathies or sex-linked diseases;’;
v “sex selection” includes any procedure, technique, test or administration or prescription or provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex;
v “sonologist or imaging specialist” means a person who possesses any one of the medical qualifications recognised under the Indian Medical Council Act, 1956 (102 of 1956) or who possesses a post-graduate qualification in ultrasonography or imaging techniques or radiology ;
v Prohibition of sex-selection.-No person, including a specialist or a team of specialists in the field of infertility, shall conduct or cause to be conducted or aid in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo, conceptus, fluid or gametes derived from either or both of them.
v Prohibition on sale of ultrasound machine, etc., to persons, laboratories, clinics, etc., not registered under the Act.-No person shall sell any ultrasound machine or imaging machine or scanner or any other equipment capable of detecting sex of foetus to any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other person not registered under the Act.”.No pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely:— (i) age of the pregnant woman is above thirty-five years;(ii) the pregnant woman has undergone two or more spontaneous abortions or foetal loss;(iii) the pregnant woman had been exposed to potentially teratogenic agents such as, drugs, radiation, infection or chemicals;(iv) the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic disease;(v) any other condition as may be specified by the Board: Provided that the person conducting ultrasonography on a pregnant woman shall keep complete record thereof in the clinic in such manner, as may be prescribed, and any deficiency or inaccuracy found therein shall amount to contravention of provisions of section 5 or section 6 unless contrary is proved by the person conducting such ultrasonography;
v No person including a relative or husband of the pregnant woman shall seek or encourage the conduct of any pre-natal diagnostic techniques on her except for the purposes specified in clause (2);
v No person including a relative or husband of a woman shall seek or encourage the conduct of any sex-selection technique on her or him or both.
v No person shall, by whatever means, cause or allow to be caused selection of sex before or after conception.
v No person shall open any Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or centre having ultrasound or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus and sex selection, or render services to any of them, after the commencement of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 unless such centre, laboratory or clinic is duly registered under the Act.”.
v Prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention.-(1) No person, organization, Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or centre having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such centre, laboratory, clinic or at any other place.
v No person or organization including Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any manner regarding pre-natal determination or pre-conception selection of sex by any means whatsoever, scientific or otherwise.
v Any person who contravenes the provisions of sub-section (1) or sub-
section (2) shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees. Explanation.—For the purposes of this section, ‘‘advertisement’’ includes any notice, circular, label, wrapper or any other document including advertisement through internet or any other media in electronic or print form and also includes any visible representation made by means of any hoarding, wall-painting, signal, light, sound, smoke or gas.’.
v Presumption in the case of conduct of pre-natal diagnostic techniques.-Notwithstanding anything contained in the Indian Evidence Act, 1872, the court shall presume unless the contrary is proved that the pregnant woman was compelled by her husband or any other relative, as the case may be, to undergo pre-natal diagnostic technique for the purposes other than those specified in sub-section (2) of section 4 and such person shall be liable for abetment of offence under sub-section (3) of section 23 and shall be punishable for the offence specified under that section.”.
Abortion debates, especially pertaining to abortion laws, are often spearheaded by advocacy groups belonging to one of two camps. Both are used to indicate the central principles in arguments for and against abortion: "Is the fetus 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 continue a pregnancy?"
In the history of abortion, induced abortion has been the source of considerable debate, controversy, and activism. An individual's position on the complex ethical, moral, philosophical, biological, and legal issues is often related to his or her value system. Opinions of abortion may be best described as being a combination of beliefs on its morality, and beliefs on the responsibility, ethical scope, and proper extent of governmental authorities in public policy. Religious ethics also has an influence upon both personal opinion and the greater debate over abortion (see religion and abortion).
A May 2005 survey examined attitudes toward abortion in 10 European countries, asking polltakers whether they agreed with the statement, "If a woman doesn't want children, she should be allowed to have an abortion". The highest level of approval was 81% (in the Czech Republic); the lowest was 47% (in Poland).
In North America, a December 2001 poll surveyed Canadian opinion on abortion, asking Canadians in what circumstances they believe abortion should be permitted; 32% responded that they believe abortion should be legal in all circumstances, 52% that it should be legal in certain circumstances, and 14% that it should be legal in no circumstances. A similar poll in January 2006 surveyed people in the United States about U.S. opinion on abortion; 33% said that abortion should be "permitted only in cases such as rape, incest or to save the woman's life", 27% said that abortion should be "permitted in all cases", 15% that it should be "permitted, but subject to greater restrictions than it is now", 17% said that it should "only be permitted to save the woman's life", and 5% said that it should "never" be permitted. A November 2005 poll in Mexico found that 73.4% think abortion should not be legalized while 11.2% think it should.
Of attitudes in South and Central America, a December 2003 survey found that 30% of Argentines thought that abortion in Argentina should be allowed "regardless of situation", 47% that it should be allowed "under some circumstances", and 23% that it should not be allowed "regardless of situation" A March 2007 poll regarding the abortion law in Brazil found that 65% of Brazilians believe that it "should not be modified", 16% that it should be expanded "to allow abortion in other cases", 10% that abortion should be "decriminalized", and 5% were "not sure". A July 2005 poll in Colombia found that 65.6% said they thought that abortion should remain illegal, 26.9% that it should be made legal, and 7.5% that they were unsure.
The "abortion-breast cancer (ABC) hypothesis" (supporters call it the abortion-breast cancer link) posits that induced abortion increases the risk of developing breast cancer; it is a controversial subject and the current scientific consensus has concluded there is no significant association between first-trimester abortion and breast cancer risk. In early pregnancy, levels of estrogen increase, leading to breast growth in preparation for lactation. The hypothesis proposes that if this process is interrupted by an abortion – before full maturity in the third trimester – then more relatively vulnerable immature cells could be left than there were prior to the pregnancy, resulting in a greater potential risk of breast cancer. The hypothesis mechanism was first proposed and explored in rat studies conducted in the 1980s. The American Cancer Society concludes that presently the evidence does not support a causal abortion-breast cancer association, yet a causal link continues to be championed by pro-life activists like Dr. Joel Brind, Dr. Angela Lanfranchi and Karen Malec.] In the past, pro-life advocates have sought legal action regarding disclosure of the abortion-breast cancer issue. This brought short-term legal and political intervention culminating with the Bush Administration changing the National Cancer Institute (NCI) fact sheet from concluding no link to a more ambiguous assessment. In February 2003, the NCI responded by conducting a workshop with over 100 experts on the issue, which determined from selected evidence that it was well-established "abortion is not associated with an increase in breast cancer risk."
While early research indicated a correlation between breast cancer and abortion; the current scientific consensus has solidified with the publication of large prospective cohort studies which find no clear association between abortion and breast cancer.
On March 14, 2008, the Royal College of Psychiatrists released a statement saying "The specific issue of whether or not induced abortion has harmful effects on women’s mental health remains to be fully resolved. The current research evidence base is inconclusive – some studies indicate no evidence of harm, whilst other studies identify a range of mental disorders following abortion."
Whether a fetus has the ability to feel pain and to suffer is part of the abortion debate. For example, legislation has been proposed by pro-life advocates requiring abortion providers to tell a woman that the fetus may feel pain during the abortion procedure, and that require her to accept or decline anesthesia for the fetus.
English common law allowed abortions to be performed before "quickening", the earliest perception of fetal movement by a woman during pregnancy, until both pre- and post-quickening abortions were criminalized by Lord Ellenborough's Act in 1803 In 1861, the British Parliament passed the Offences Against the Person Act, which continued to outlaw abortion and served as a model for similar prohibitions in some other nations. The Soviet Union, with legislation in 1920, and Iceland, with legislation in 1935, were two of the first countries to generally allow abortion. The second half of the 20th century saw the liberalization of abortion laws in other countries. The Abortion Act 1967 allowed abortion for limited reasons in the United Kingdom. In the 1973 case, Roe v. Wade, the United States Supreme Court struck down state laws banning abortion, ruling that such laws violated an implied right to privacy in the United States Constitution. The Supreme Court of Canada, similarly, in the case of R. v. Morgentaler, discarded its criminal code regarding abortion in 1988, after ruling that such restrictions violated the security of person guaranteed to women under the Canadian Charter of Rights and Freedoms. Canada later struck down provincial regulations of abortion in the case of R. v. Morgentaler (1993). By contrast, abortion in Ireland was affected by the addition of an amendment to the Irish Constitution in 1983 by popular referendum, recognizing "the right to life of the unborn".
In places where abortion is illegal or is socially such a stigma that it would not be possible to continue to live there if it became known that a woman had undergone one, pregnant women may engage in medical tourism and travel overseas to countries where they can undergo a termination of their pregnancy. In the
There are special circumstances provided under law when a woman can go in for an abortion - like when a doctor says that having a child would prove a risk to the life of the woman, cause her grave mental or physical injury or that the child may be born with severe disabilities. "It's the need of the hour that we should legalise abortion as otherwise this will invite illegal means, which is more dangerous for our society It is irrational and unfortunate that a couple who has sought legal help from the judiciary didn't get justice. We cannot push a mother to have an abnormal child as it is her responsibility to take care of the child at the end of the day. Now let us go to the Medical Termination of Pregnancy Act, 1971 (Act No. 34 of 1971). This Act extends to the whole of
Registered medical practitioners can terminate the pregnancy on two conditions:
(1) Where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or
(2) Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioner are of opinion, formed in good faith, that –
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped.
Explanation 1 - Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2 - Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be resumed to constitute a grave injury to the mental health of the pregnant woman.
In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant women’s actual or reasonable foreseeable environment.
(a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.
Section 4 says pregnancy may be terminated in a hospital established or maintained by Government, or a place for the time being approved for the purpose of this Act by Government.
Pregnancy can be terminated: in a case where he is of opinion, formed in good faith, that he termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
The Act specified that the termination of a pregnancy by a person who is not a registered medical practitioner shall be an offence punishable under that Code, and that Code shall, to this extent, stand modified.
Vide Section 6 and 7 the central Government and state government can make rules.
Section 8 gives Protection of action to registered medical practitioners for any damage caused or likely to be caused by anything, which is in good faith done or intended to be done under this Act.
In exercise of powers conferred by section 6 of the Medical Termination of Pregnancy Act, 1971 (34 of 1971), the Central Government made rules called the Medical Termination of Pregnancy Rules, 2003.
Even with these laws to control the legalized killing of unborn – still the question hangs on us:
"Is the foetus a human being with a fundamental right to life” & "Does a woman have the right to choose whether or not to continue a pregnancy?". Modern
Article by Adv. K.C. Suresh, B.A., LL.M (Crimes), PGDHR (Human Rights), Special Public Prosecutor, Legal Adviser (Rtd) Vigilance & ACB, Kerala
Tags :Criminal Law