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RIGHT TO ABORTION – AN INSIGHT UPON THE RIGHTS OF THE STILL BORN CHILD: BY: BRINDHALAKSHMI N
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RIGHT TO ABORTION – AN INSIGHT UPON
THE RIGHTS OF THE STILL BORN CHILD:
AUTHORED
BY: BRINDHALAKSHMI N
INSTITUTIONAL
AFFILIATION: Student at Sastra deemed university.
ABSTRACT:
In the contemporary legal landscape,
significant amendments have been made to existing statutes, regulations, and
bylaws by legislative bodies. It is incumbent upon the legislature to ensure
that its enactments do not contravene the fundamental rights outlined in Part
III of the Constitution. In India, families hold a deep-seated belief that
children born into their fold are a divine blessing, viewing the child as
synonymous with a deity. The legal framework aims to safeguard customary
beliefs and practices that align with public policy.
The legalization of abortion, whether
by a married or unmarried woman, carries inherent implications. While there
have been no judicial pronouncements definitively interpreting the term
"person" as used in Article 21 to encompass the unborn child, it can
be inferred implicitly that the right to life extends to the foetus within the
mother's womb. Consequently, permitting abortion could be construed as a
violation of the fetus's right to life under such circumstances.
Right to abortion remains as the most
contentious and debated issue in the contemporary legal era. It seems to be that much more attention has
been granted to the right of the women to abort, but there is significant
discussion in relation to the right of the foetus. This paper aims at bridging the gap by analyzing the complex intersection between the
right to abortion and the rights of the foetus.
It devolves into legal, ethical, and philosophical considerations
surrounding these issues.
INTRODUCTION:
Right to life is a fundamental right
guaranteed to every person. But there
are no express wordings in the legislation that confers such a right to the
foetus i.e., the child in the mother’s womb.
Studies reveal that the heart of the child develops with in 2 to 3 weeks
of pregnancy. It is belief according to
the Indian customs that once a child develops it heart then it becomes the soul
becomes independent from that of the mother.
It is essential to give respect to the reasonable believes of the people
in the society. If the child in the mother’s womb is recognized as a separate
individual then it will be bestowed with the right to life.
RIGHT TO ABORTION:
The supreme court of India in the
case of X vs the principal secretary Health and family welfare department held
that a woman, married or unmarried is entitled to an equal access to abortion
up to 24weeks of gestation period, further such abortion must in compliance
with the Medical Termination Pregnancy Act, 1971. Earlier rulings led to a
conclusion that the “Medical Termination of Pregnancy Act, 1971” permitted
abortion up to 20weeks upon the advice of the medical practitioner under
specified circumstances. In this particular case the unmarried woman became
pregnant due to consensual relationship and since her case was not covered
under the special circumstance, and consequently she was denied the right to
abort. Supreme court ruled that there must be no distinction between the
married and unmarried woman as it would affect the provisions of the
constitution and the fundamental right to equality and further held that a
woman has a right to abort up to 24 weeks of pregnancy.
FOETAL RIGHTS:
Foetal rights refer to those rights
that are considered to be the moral or the legal rights of the child in the
mother’s womb either under the civil law or under the natural law.
LIMITATION ACT OF 1963:
The explanation attached to section 6
of the limitation act of 1963 considers the child in the mother’s womb as an
infant.
INDIAN SUCCESSION ACT, 1925:
Section 2(e) of the Indian Succession
Act, 1925 declares minor to be of any person who has not attained the age of
majority i.e., any person below 18 years of age. Accordingly, the term minor
can be interpreted to include a foetus.
Such interpretation confers property rights to the child in the mother’s
womb. For instance, if at the time of
partition if a child was in the mother’s womb then under such circumstances the
child should be allotted a share in the joint family property.
THE INDIAN PENAL CODE:
Section 312 of the Indian Penal Code
reads as follows;
“Whoever voluntarily
causes a woman with child to miscarry, shall if such miscarriage be not caused
in good faith for the purpose 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”.
The section clearly
prohibits the abortion of a child in the mother’s permitting it to be done only
for the protection of the rights of the women in good faith.
HINDU SUCCESSION
ACT, 1956:
The Hindu succession
act of 1956 confers certain rights upon the foetus. The child in the mother’s
womb at the time of the death of the intestate and who is subsequently born
alive is entitled to a share in the property by way of intestate succession.
UNIVERSAL
DECLARATION OF HUMAN RIGHTS:
The United Nations
general assembly adopted the universal declaration of Human rights in the year
1948 to which provides for a list of human rights to which all human beings are
entitled to. The right to life is one
among the rights which the UDHR provides for.
Section 3 of the universal
declaration of human rights reads as follows;
“Everyone
has the right to life, liberty and security of person.”
If such rights are interpreted to be
applicable even to the child in the mother’s womb, then there arises a huge
discrepancy between Article21 of the Indian constitution and section 3 of the
Universal Declaration of Human Rights.
But, till date there is no clear inference as to whether the rights
conferred by the UDHR is applicable also to the child in the mother’s
womb.
RIGHT TO
ABORTION:
The right to abortion
is considered to be a argumentative topic which covers certain specific issues
such as the autonomy of the women over their body, rights of foetus and so on.
It has become a complex and multifaceted issue by giving due consideration to
the ethical, legal and philosophical aspect of the same. This research aims at exploring the impact of
right to abortion upon the rights of the foetus and its societal implications. There has been a debate as to where the
person-hood begins and where a line has to be drawn between the rights of the
mother and the rights of the foetus. The
proponents of the fundamental right strongly contend that the women have the
fundamental right to
control their reproductive choices including the right to terminate
their pregnancy. There has been an
universally accepted contention that a individual has the right to decide about
their bodily affairs without the intervention of the state. Therefore from such
a perspective it seems to be that the right to abortion is essential for the
protection of the rights of the women and for women empowerment. Denying a women the right to have access to
the safe and legal abortion services have a more serious repercussions over the
health of the women, her socioeconomic status and well being. Which may further
lead a women to have unsafe and clandestine abortion which may lead to a high
rate of mortality and morbidity. But
those who are against the conferment of the abortive rights to the women
strongly believe that it would affect the inherent moral worth and right to
life that has to be protected from the conception onwards. They are of the opinion that the abortion is
morally equivalent to homicide, as it involves the deliberate termination of
life of the foetus.
One
of the major concerns is that if the foetus is regarded as a person then it
would be conferred with certain rights and the impact of abortion will be such
that it will lead to the violation of the rights conferred upon the
individual(foetus). However the answer to the question whether the foetus is to
be treated as a person is inherently complex and subjective. Because different ethical frameworks had lead
to different conclusions. Some are of
the opinion that the foetus attains the status of an individual person upon its
birth, but others are of the opinion that the person-hood is inherent and it is
right from the conception. But, even if
one accepts that there are certain rights to the foetus, still there would be a
question as to how to bring a balance between the rights of the foetus and the
mother. In cases where there is a threat
or risk to the life of the mother then in such cases priority must be given to
her rights. Further if the foetus is
diagnosed with abnormalities then in such cases the child can be aborted
because rather than giving a birth to a child with disabilities at times the
mother can opt to abort it so as to prevent it from facing the problems in the
society.
The
legal provision relating to the abortion vary significantly across the world
since there is a change in cultural, religious and other political values of
the people. Some countries don’t confer
abortive rights to the women and they in turn have only limited access to the
abortive services. But on the other hand
there are certain countries which prioritize the reproductive rights of the
women and further they have more liberal laws relating to abortion. In the 1973 the landmark judgement pertaining
to the abortion was passed by the supreme court in USA in the case of Roe V.
Wade which legalized abortion.
In
addition to the legal and ethical implication right to abortion has broader
societal implications as-well. Access to safe and legal abortion services is closely linked
to women's ability to participate fully in social, economic, and political
life. When there is a denial upon the right to make
reproductive choices there is denial of full citizenship and autonomy. This ma
in turn hinder the efforts that had been taken in order to bring gender
equality and social justice and may lead to gender inequality. The availability
of the abortive services has its own implications upon the public heath
criteria. In countries where the
abortion is illegal and is highly restricted there are chances of women
resorting to unsafe abortive practices which may pose a serious treat to the
well being of the women and pose treat to their health. But on the other hand in the countries where
there is easy access to the abortive services women can have safe abortion and
there will be low rate of maternal mortality and morbidity.
CONCLUSION:
Right to abortion one of
the most debated and complex issue that raised serious questions as to the
rights of the women and to that of the foetus.
The debate encompasses ethical, legal and philosophical considerations and has a broader societal implications. Finding a balance between
the rights of the women and the rights of the foetus is a challenging task and
it requires careful consideration as to the rights and the needs of the parties
concerned.
Article Information
RIGHT TO ABORTION – AN INSIGHT UPON THE RIGHTS OF THE STILL BORN CHILD: BY: BRINDHALAKSHMI N
Authors: BRINDHALAKSHMI N
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/24
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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