Legalization of Abortion
1.What is an abortion?
Harvard Medical School defines abortion as follows. “Abortion is removal pregnancy tissues, product of conception or the fetus and placenta from the uterus. In general, the terms fetus and placenta are used after eight week of pregnancy.” But the word can be identified as a glossary across different disciplines. In medicine, for example, this is recognized as a procedure related to pregnancy peace. In criminal law, this is considered a legal matter and is intentionally terminated. The main focus of this article is to discuss the legalization of abortion from a legal point of view. But the use of different legal conditions confirms that the term abortion is attempted to be interpreted based on the social, economic and cultural factors that exist within each social order. However, the modern trend is to focus on abortion through a rights-based approach. Therefore, the concept of abortion, which was originally understood as abortion, is not limited to a mere sense, but is concerned with how to legalize it in order to protect women's rights and minimize social conflicts. That is why the term abortion is now more focused on legalization than criminalization.
2.Legal Status of Abortion in India
Prior to 1971, abortion was illegal under section 312 of the Indian Penal Code of 1860. It has been described as a cause of miscarriage. It states that it is an offense under the criminal law to perform a voluntary abortion in a manner that does not endanger the life of the woman. That is, the sole purpose of saving a woman's life can be identified as an exception to abortion. But in the 18th century many countries tried to legalize abortion and the Ministry of Family and Health Welfare of India also paid attention to this. The Medical Termination Pregnancy Act, enacted in August 1971, is an important part of Indian law on abortion, based on the findings of a Shanthilal committee appointed in 1964. The preamble to the Act is as follows.
“An Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto….”
Section 3 (1) states that a registered physician is not guilty of an offense under the Indian Penal Code No. 45 of 1860 on the implementation of the provisions of this Act. That is to say, the idea that abortion, which had been accepted until then, was a crime became somewhat flexible through this. This is because the Act makes it very clear what are the special cases of abortion, what are the deadlines, and who can do it. Article 3 (2) confirms that there are two limits on time.
When it has been decided in the opinion of a medical practitioner that the gestation period should not exceed 12 weeks.
When the gestation period is over 12 weeks but two medical practitioners have determined that it is not more than 20 weeks.
Time alone is not enough and there are occasions when the word 'good faith' is mentioned in the Act. Accordingly, the chances of having an abortion are as follows.
Continuing pregnancy may adversely affect a woman's physical and mental health.
If the baby is born, there is a risk of abnormal mental and physical risk.
The Act also contains two other explanations in respect of those two instances. Its first explanation is that if a pregnancy has been caused by rape at any time, the factors involved must be identified as a cause of psychological risk to the pregnant woman. The second explanation states that even if a married woman or man uses a contraceptive device to limit the number of children, it also has a negative effect on the mental health of the pregnant woman if a pregnancy occurs. It can be argued that these two Acts sought to legalize abortion to cover a wider range when analyzed from a positive perspective.
However, the Medical Termination of Pregnancy Act of 1971 imposed some legal status on abortion issues, but with the evolution of society came various criticisms in this regard. This is confirmed, for example, by the social, economic, moral and political issues surrounding the abortion case. For example, the social, economic, moral and political issues surrounding abortion in the Nikitha Metha case are important. The Mumbai High Court in this case held that the court could not go beyond the provisions of the Act based on Section 3 (2) (b) of the MTP Act which had been in place for 37 years. Therefore, abortion was refused as the period of twenty weeks had passed. But after this ruling, the MTP Act was amended in 2014. It was also discussed that abortion should be allowed beyond 20 weeks on fetal abnormalities. In addition, in 2002, the MTP Act was amended to increase women's access to the private health sector.
In particular, matters of fundamental rights enshrined in Article 21 of the Indian Constitution are also linked to the legalization of abortion. It states that no person shall be deprived of his right to life and liberty except in accordance with the law. But it is questionable whether they have the right to abortion under the right to degrade their reproductive health. The recognition of this right by the Supreme Court in the case of Suchithan Srivastava and others vs. Chandigarh Administration (2009) 11 SCC 409 is a major milestone in the field of abortion law. The case is being reaffirmed through KS Puttaswamy and Anrs vs Union of India (2017) 10 SCC1 decision that the right to abortion is part of a woman's right to privacy. Therefore, it has been emphasized that it is the responsibility of the government to uphold that right. In addition, the legitimacy of the provisions of the MTP Act has been questioned on the basis of Article 21. Cases such as Nand Kishore Sharma vs Union of India and Swati Agrawal and others vs Union of India can be cited as examples. However, despite some shortcomings in the statutory law, the Supreme Court of India, as the primary defender of the rights of the people, has taken a positive approach by working on rights in the modern approach.
The year 2020 will see an opportunity to further strengthen the process of legalizing abortion. That is, steps were taken to amend the 1971 MTP Act to promote reproductive rights and gender as part of society. This unique opportunity, as some have interpreted it, is a matter of prioritizing a woman's choice and perspective. These amendments make some of the changes expected.
The aim of this amendment is to try to increase the gestational age associated with abortion from 20 to 24 weeks. However, the approval of two doctors is required for a period of 20 to 24 weeks.
If an abortion is performed after 24 weeks, the permission of a medical board is required.
The period of termination of pregnancy has been extended from 20 to 24 weeks for specialized women, such as those who have had pregnancies due to rape and incest, disabled women and minors.
Further, matters relating to abortion should be kept confidential as stated in this Bill. It is a punishable offense to present the name and other information of an aborted woman to anyone other than an authorized person.
From the above it is clear that although Indian law was initially based on traditional issues, with the passage of time there has been a shift towards certain progressive issues. But even these legal conditions, even the 2020 Amendment Bill, have been criticized in some way. For example, it can still be argued that abortion is not a woman's right but is based on medical opinion. It is also questionable whether the law is advanced enough to address such a situation while creating other relationships that go beyond marriage. However, in terms of past and present law, developmental conditions can be seen in the context of Indian law.
3.What is the Basis for Legalizing Abortion?
Abortion is a condition associated with sensitive emotions. But it is a topic that is subject to criticism through social, economic, political, cultural and religious discussions. For example, in ancient societies abortion was recognized as a factor in the loss of fertility. No matter how social the issue, abortion should be discussed in conjunction with other related issues. Without that, it does not matter how many arguments are made. In discussing the basis for legalizing abortion, arguments can be made in the legal and social spheres, from the sensitive role of the mother to women's rights. But here it is intended to discuss this topic in the legal sense.
The first reason for legalizing abortion is to reduce the adverse effects of illegal abortions. There is a high tendency to resort to unsafe abortions when abortion is prohibited by law. According to Human Rights Watch, unsafe abortions account for about 13% of all maternal deaths worldwide. According to the World Health Organization, between 2015 and 2019, there were 73.3 million abortions worldwide. One-third of this has been done under minimally unsafe and dangerous conditions. The vast majority of these estimated unsafe abortions occur in the Asian region, with the South Asian region leading the way. The World Health Organization (WHO) further points out that the main reason for resorting to unsafe abortions is the lack of a safe abortion method. They also point to the existence of restrictive laws as a major barrier to resorting to safe abortions. According to the World Health Organization, it is time for a peaceful country to reconsider its abortion law.
There are some countries where abortion legalization is subject to many complex restrictions, and it is questionable whether it is possible to achieve the real results of legalizing abortion. For example, According to the World Health Organization's unsafe abortion report (2008), India legalized abortion in 1971. However, due to the complexity of the law and the fact that many women are not aware of this and do not have easy access to the relevant services, about 2/3 of abortions occur without proper health standards. Therefore, legalizing abortion should not only be a matter of enforcing the law, but also of enforcing legal and socially enforced rights enshrined in law.
The second important point in legalizing abortion is the need to protect women's rights. A 2012 report by the World Health Organization called "Safe Abortion is Essential to Protecting Women’s Human Rights" states that "countries with limited abortion laws must comply with WHO guidelines to protect the fundamental rights of women living within their borders." Moreover, if there is any law regarding the legalization of abortion, it should be interpreted as enforcing women's rights. The Center for Reproductive Rights points out that there are four fundamental rights associated with abortion. These are women's right to life, women's right to health, and women’s right to non-discrimination and women's rights to reproductive self-determination. All of these rights are recognized by many international legal frameworks, such as the United Nations Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Discrimination against Women. Under state sovereignty, each state has the power to legislate, enforce the law and administer justice as it applies to its territory, and is also responsible for protecting women's rights under true international law. It can be argued, therefore, that matters relating to abortion should be considered.
The third factor in legalizing abortion is the opportunity to find solutions too many of the problems that are likely to arise socially. Many countries have legalized abortion in cases where a woman's life is in danger. In India it is more progressive as it is considered physically and mentally. But so far some countries have not been able to go beyond this framework. In Sri Lanka, for example, legal abortion is allowed on the grounds that the mother's life is in danger. But rapes sometimes lead to pregnancies in childhood, and abortion helps to maintain their future well-being. It is especially argued that child marriage should be banned in the world because a child does not have the physical and mental well-being to have a child during childhood. Therefore, legalization of abortion can solve many of the problems that can be created socially. India has already legalized this area and it is a unique trend.
4.What are the Strong Arguments against Legalizing Abortion?
Opposition to the legalization of abortion can be traced back to the 21st century. Their main arguments are based on religious and moral issues. Sometimes these arguments are presented in a way that is acceptable or unacceptable in each state due to changes in religious philosophy.
The rights of unborn children are paramount here. Since even the fetus is a living thing, trying to destroy it can be seen as depriving the unborn child of his right to life. According to the Catholic’s Bishop Conference of Sri Lanka, "life begins at the moment of conception and becomes sacred, and the loss of one's life is not a right even at the time of conception." But in English case law, De Martell vs Merton and Sutton HA (1992) 2 FCR 832 states that, “according to legal arguments, no harm can be done to anyone before its existence." It was therefore argued that the rights of women should be given more attention than the rights of the unborn child. But this conversation can be done on different bases in different ways.
Conscientious objectors are also a major critique. Although abortion is permitted by law, it is questionable whether the offense of performing an abortion can be avoided. Sometimes that mental illness lasts until death and sometimes it is also a cause of mental illness. It can also be argued that this is based on moral factors. In addition, some people have pointed out that there is a possibility of physical harm through abortion. For example, some scientific theories confirm that breast cancer can develop through abortion. But according to the American Cancer Society, "Abortion is a matter of human emotion. It can be based on religious, political, or personal feelings, but it has nothing to do with something like cancer."
There are a number of other fundamental factors that can be found in society related to the above mentioned fundamental issues. But what needs to be understood is the difficulty of giving equal importance to all social issues in the making of laws. That is, it should be possible to formulate a more positive law by comparing progressive and contradictory arguments with each other.
5.Application of Abortion Law in Sri Lanka and other Countries.
Abortion is a criminal offense under Section 303 of the Penal Code of Sri Lanka. The only exception to this is when abortion is performed in good faith to save a woman's life. But critics say this is a very outdated law. In 1995, 2011 and 2013, various bills were introduced to legalize abortion but were unsuccessful. Historical experience confirms that there was more social activism during the period in which these proposals were made, but that they were later forgotten. But the problem is that illegal abortions take place in Sri Lanka, despite strict abortion laws. The article Liberalizing Abortion Laws in Sri Lanka: Prospect and Challenges states that there were about 500 abortions per day in Colombo, as far back as 1984. In the South Asian region, the strictest abortion laws are enforced only in Sri Lanka and Afghanistan.
Roe vs Wade (1973) is one of the most important cases in the study of the legal framework for abortion in the United States. It was discussed whether abortion should be allowed without subjecting it to unnecessary restrictions. This is a historic situation and a case that has given hope to women around the world for their rights. It has been argued that the "right to privacy" introduced by the 14th Amendment to the U.S. Constitution includes the right of women to decide on abortion.
The Amnesty International website points out that in 2018, Argentina will also achieve a more historic victory. The Senate of Argentina has approved the legalization of abortion on December 30, 2020, the date of writing this article. But the Catholic Church, the biggest influence in Latin America, strongly criticized the bill, but the victory in Argentina is a victory for the Latin American region itself. In Argentina, about 38,000 women are hospitalized each year for a secret abortion. Vilma Ibarra, who drafted the law, has stated that women will never die from secret abortions again.
The above examples show that many countries are moving towards legislation that would legalize abortion while respecting democratic roles. Also, if a state has avoided this legislation, it can be seen that social campaigns are being created against it. That is, legalizing abortion can sometimes be seen as a modern social necessity.
Since abortion is an extremely sensitive issue, it is questionable how this should be justified. However, it must be understood that society has undergone changes in terms of social issues. For example, the methods of sexual intercourse and the age range have changed. It is therefore questionable whether further decisions should be made within the traditional framework. Although abortion has now been legalized in many countries, it has the potential to expand further. Therefore, according to the Royal College of Obstetricians and Gynecologists, abortion should no longer be considered a health problem but a crime. Accordingly, no matter how moral a country is, it is a modernly accepted view that legislation should be made in accordance with constitutional morality and not on issues such as social morality and religious morality. Now is the time and opportunity for every country to reconsider the process of legalizing abortion, and it is up to countries that have already legalized abortion to decide how to further prosecute it appropriately. It has the potential to develop not only the medical scientific basis but also the legal scientific basis under the medico-legal objective.