Author:
Azeem Mian
Fourth-year student, B.A.LL. B Hons,
Faculty of Law, Jamia Milia Islamia
INTRODUCTION
The abortion decision involves several parties, all with their own legally protected interests, civil liberties or fundamental human rights. These parties are the fetus, the pregnant woman, the doctor, the father of the fetus and the parents of the pregnant minor. The abortion decision becomes a dilemma when these interests conflict with each other, as when the pregnant woman claims her freedom of choice against the fetus claim to have its life protected, or the doctor claims that he cannot perform an abortion because his conscience does not allow him to, or the father of the fetus disagrees with the pregnant woman's decision to have an abortion and claim his right to a family.
The concerned state has to protect and harmonies these rights, but because of their conflicting nature, it has to place them in a hierarchical order.
Human rights institution has guided the need to decriminalise the practice of abortion and to ensure women's right to health and as well as other fundamental human rights interlinked with the women's right to abortion.
The Supreme Court of the United States in its landmark ruling in Roe v. Wades 410 U.S. 113 recognised the abortion right as fundamental liberty protected by the Fourteenth Amendment to the American Constitution. However, the judgment of Roe v. Wades doesn't allow a woman "to terminate a pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses." Rather, the U.S. Supreme Court's initial articulation of the abortion right was limited by the role of the state, the relational nature of the right, and the contexts in which the right of abortion could be exercised.
Roe does not concede a positive right to have an abortion; however, it makes a negative right against some state impedance in the abortion choice. In particular, Roe construes the right to abortion as a harmony between the interests of the state and those of people.
INTERLINKED RIGHTS
1. The right to life of the fetus
Nowadays, there is a trend towards recognising the legal personality of the fetus due to which 'right to life of the fetus' and 'right to privacy' of the mother have always been in conflict. In the case of Webster v. Reproduction Health Service106LEd2d410(1989) the American Supreme Court reversed its earlier judgment of Roe v. Wades and upheld the Missouri Statute which states that 'right to life of each human beings begins at conception' and that 'unborn children have a protectable interest in life, health as well as well-being'. Further, in Davis v. Davis (1989) 15 FLR2097, it was held that as a matter of law, human life begins at conception.
Some of the International Human Rights Convention and Declarations contain the provision of 'right to life'. The Preamble of UDHR 1948, speaks, 'recognition of inherent dignity and equal and inalienable rights of all members of the human family'. Whereas, Article 3 of the UDHR,1948; Article 6 para (1) of the ICCPR, 1966; Article 2 of the ECHR, 1950 contains an explicit provision of 'right to life'.
In the USA, the right to life of the unborn is protected by the Unborn Victims of Violence Act, 2004.
Whereas, in India, the rights of the unborn are protected impliedly through various statutes some of them are IPC, 1860 from section 312 to section 316; Medical Termination of the Pregnancy Act, 2002; section 13 of the Transfer of Property Act, 1882; Section 416 of the Cr.P.C., 1973; Sections 2(e), (7), (112) of the Indian Succession Act, 1925; Section 20 of the Hindu Succession Act, 1956 and Section 6 of the Limitation Act, 1963.
In the case of Aswini Kumar Pan V Primal Debi AIR 1964 Cal. 354 the Supreme Court of India stated that the child in the mother's womb is deemed to be in presence for inheritance and has a right to challenge any transaction and entitled to file a suit as a child.
In the year 2009, a petition was lodged against the MTP Act, demanding that the termination period be increased to 26 weeks, to which Ministry replied, "the state is morally duty-bound as the guardian of the citizens and has parens patriate powers to protect the life of the child in the womb after attaining the stage of viability."
2. The women's right to self-determination
In the judgment of Roe v. Wades, the various fundamental human right had been invoked as the basis of the woman's right to abortion. It had been claimed that the right to abortion is an indispensable part of the woman's right to privacy.
'Right to limit childbearing' is the passive side of the woman's right to self-determination.
Article 34 of the European Convention on Human Rights, 1950 states that "the courts of human rights may receive petitions from any person, NGOs, or group of individual claiming to be the victims of a violation by one of the High Contracting Parties of the rights outlined in the ECHR convention or the Protocol thereto".
In the case of Bruggemann and Scheuten v. the Federal Republic of Germany Application, no 6959/75 two German women complained of the fact that their right to respect for their private life, protected by Article 8 of the European Convention was violated by the indication's solution of the amended German abortion law.
They alleged in the complaint that they were not free to have an unwanted child aborted. The European Commission declared the complained admissible. They were considered as 'victims' as defined by Article 34 of the ECHR.
In Indian, the inalienable right of the mother is protected under Article 21 of the Indian Constitution. In the case of High Court on its own motion v. the State of Maharashtra on 19 September 2016 has unequivocally held that the right of a woman to decide to be a mother or not rises out of her human right to live with dignity which, falls inside Article 21 of the Constitution. Courts have additionally found a way to forestall maternal deaths coming about because of an absence of access to safe abortion.
Also, Section 3 of the MTP Act, 1971 guarantees woman's right to abortion by a registered medical practitioner in a hospital administered by the Government.
3. The father's right
Father can claim his right to procreation to family life (guaranteed by Article 16(1) of the UDHR, 1948; Article 23(2) of ICCPR and Article 12 of the ECHR, 1950 and other human rights conventions), and to equal protection before the laws (guaranteed by Article 5' equality between spouses' of Protocol no. 7 to ECHR, 1950; Article 7 'equal protection of law' of the UDHR, 1948 and Article 3 of the ICCPR, 1966) against the woman's claim to have the exclusive right to decide on abortion.
Procreation requires the involvement of two individuals (father & mother). It might be argued that excluding the father of the fetus from the abortion decision means that his right to procreation guaranteed by various International Human Rights Convention becomes illusory.
Article 14 of the Indian Constitution states' equality before the law and equal protection of law' which is a dynamic concept in itself and cannot be cabined, cribbed or confined in a legal constraint.
In one of the landmark Supreme Court's holding in Samar Ghosh v. Jaya Ghosh it was held that when a wife terminates a pregnancy without her husband's knowledge or consent, it may amount to mental cruelty, which is a ground for divorce.
4. The parent's right
If the pregnant woman is unmarried and has not yet reached majority age, her parents can claim a role in the abortion decision. They can claim the right to have a say in the decision because they have a right (Article 14(2) and Article 18 of the Convention on the Rights of the Child, 1989), to family life. They have a right to decide in affairs that affect family relationships such as their pregnant daughter's decision to have an abortion. Secondly, they can claim that as legal representatives of their daughter, they represent her interests and therefore, must have a say in the abortion decision(Article 27 of the CRC, 1989).
In the case of Bellotti v. Baird 443 U.S. 622 (1979), the Supreme Court in 1979 was called upon to decide on a Massachusetts Parental Consent provision. It was decided:
'as immature minors cannot often make fully informed choices that take account of both immediate and long-range consequences, a State reasonably may determine that parental consultation often is desirable and in the best interest of the minor.'
5. The doctor's right to freedom of action
The doctor has and can claim his right to freedom of action, by virtue of his profession, he has the right to practise according to the medical norms (for example World Medical Association (WMA) International Code of Medical Ethicsand WMA Declaration of Helsinki-Ethical Principles for Medical Research Involving Human Subjects) valid for the medical profession. This means that he has the freedom to perform or not perform an abortion and to choose the way in which to perform it, except in emergency cases where there is a threat to the woman's life is, he is obliged to perform an abortion to save her life. In India (Professional Conduct Etiquette and Ethics) Regulations, 2002 govern this right. Point no. 3 of the 'Declaration A' of the (Professional Conduct, Etiquette and Ethics) Regulations, 2002 says, 'I will maintain the utmost respect for human life from the time of conception'.
ROLE OF THE LAW
In the ongoing modern era, the woman's right to abortion or self-determination has more weightage in comparison to other conflicting interest. Particularly in India, the woman's right to abortion has taken a more definite shape after the introduction of the Medical Termination of Pregnancy (Amendment) Bill, 2020, this amendment would try to reduce maternity-related deaths and would provide reproductive rights to women in progressive reforms.
Under the 1971 Act, a pregnancy may be terminated within 12 weeks by a registered medical practitioner and in a case of termination of pregnancy between 12 to 20 weeks opinion of two medical practitioners is required. The Amendment Bill, 2020 has increased the limit from 12 to 20 weeks and upper limit from 20 to 24 weeks.
The Bill has also replaced the term like 'married woman or her husband' with 'woman or her partner' also ensures protection of privacy of a woman thus, increasing the ambit of the subject matter of the 1971 Act.
Further, for the termination of pregnancy between 20 to 24 weeks, the permission from the Medical Board is required, such board are to be constituted by the State Governments, which again may be hard for many to access, making the abortion a very cumbersome process.
In India, sometimes the women's reproductive rights are put in jeopardy due to several factors such as lack of info about reproductive rights, social stigma, financial constraints, the reluctance of medical practitioner to perform abortion etc.
CONCLUSION
A pregnant woman does not have an unconditional right to abortion, and a woman's right has to be harmonised against compelling state interest to safeguard the mother's health and life of the unborn.
Granting an absolute right of abortion to a woman would cost illegal and unskilled abortion and would subsume the rights which are bestowed upon the characters associated with such woman.
Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.
