Right to Abortion in the light of Right to Privacy

Introduction

It is believed that the growth and success of a society is heavily dependent on how the society treats its women. Abortion, a subject, that remains highly debatable in biomedical ethics and judicially adjudicated upon for decades. It falls under the banner due to the impact of continuing politicization on the issues concerning a woman’s right to abort and the emerging significance of fetal rights. Apart from being heavily discussed all around the world, the subject is also exposed to divergent views as far as legality is concerned. However, in some societies, it has been recognized as a woman’s constitutional right to choose whether she wishes to terminate pregnancy. Laws across the globe have established frameworks to evaluate the restrictions imposed on abortions. The position today is such that any interference by the state with respect to a woman exercising her choice to abort must be based on a ground as being of such a nature as proving to be of compelling interest i.e. circumstances involving real maternal health concerns or protection of the fetal life in exceptional cases. The right to privacy is a fundamental right that takes under its purview immunity from governmental interference in matters that are personal and intimate such as marriage, procreation, child-rearing and the use of contraception. The right to undergo an abortion is a matter of individual conscience and conscious choice of a woman. It is a woman’s absolute right to live with human dignity and that true parenthood can be experienced only when women remain in control of their own bodies and reproductive processes. To restrict/deprive a woman from making a choice would mean an infringement of her natural right.

The Implications of Defining the Conception of Pregnancy

The recognition/non-recognition of the rights of an unborn child is dependent on the fact i.e. whether a child can be called a person. In order to ascertain the same, it is of paramount significance to understand the various stages of development of the fetus in a mother’s womb. In the technical sense, after a woman conceives, for the first seven hundred and ten days, the accurate terminology used in medical terms is “a developing ovum”, until the occurrence of implantation. It is known as “embryo” from one week after the second month and post this stage, it is addressed as “fetus”. It becomes an infant only when it takes birth. On the date on conception, life may enter immediately in the form of a small cell. However, the mother begins to experience the movement of the fetus only when the fetus is twenty weeks old i.e. five months, as the cell changes its structure and textures transforming into different parts of the body like the eyes, nose, hands, head, etc. and only when the fetus starts to touch the internal walls of the mother’s womb, the actual life adopts a physical form. The complexity in correctly interpreting these stages depends upon a careful understanding of the same. All this confusion has led to the controversy and resulted in implications in defining the pregnancy of a woman.

A fetus as old as five months in the mother’s womb till his/her birth is accepted as being a child in existence. The unborn child who never comes to life, is perhaps, considered to be “person” for the purpose of initiation of any legal action on the ground of a wrongful action resulting in his death. The said view was specifically expressed by the Andhra Pradesh High Court in the case of Oriental Insurance Company Limited v. Santhilal Patal^[1].

It is often witnessed that the gestational period or the age of the baby is calculated from the first day of the mother’s menstrual period. Perhaps, this usually happens at least ten days after the first day of the mother’s menstrual period. According to The American College of Obstetricians and Gynecologists (ACOG), establishment of pregnancy takes some time and remains incomplete until the fertilized egg is implanted in the lining of the woman’s uterus. In order words, it can be said that pregnancy has occurred only when implantation/ conception is complete. However, the said definition is critical for the purpose of distinguishing between a contraceptive that prevents pregnancy and an abortifacient that terminates it. The usage of drugs and devices before the process of implantation prevents, rather than terminates pregnancy.

The reasons responsible for the generation of confusion regarding the calculation of the period of conception can be attributed to the prevalence of distinct factors surrounding conception, which makes it difficult to comment on the exact date of conception.

Recognition of the Rights of the Mother Vis-à-vis Rights of an Unborn Child under the Indian Jurisdiction

Right to personal liberty is one of the most cherished, sacrosanct and inalienable fundamental right that has been granted to the citizens of India under Article 21 of the Indian Constitution^[2]. A genesis of the Right to Life, it is a liberty as guaranteed under Chapter III to the Constitution and hence, there have been several interpretations by numerous courts all over the country on the subject. The right to abortion is considered to be a part of it. As regards international regulations, India is a signatory to the Universal Declaration of Human Rights and the Covenant on Civil and Political Rights. Articles 11 and 12 of the Universal Declaration of Human Rights^[3] and Article 17 of the Covenant on Civil and Political Rights^[4] extend protection in the form of freedom from interference in one’s privacy and family life.

Under the Indian legislature, the various laws concerning the protection of a child’s rights have defined the minimum age limit and particularly, as regards Clause IV of the United Nations Convention in relation to a child’s rights in the mother’s womb, the legislature in India stands in the same footing as that of the Convention.

Section 312 to 312 of The Indian Penal Code provides for the offence of miscarriage. It states “whoever voluntarily causes a woman to miscarry, shall, if such a miscarriage be not caused in good faith for the purpose of saving the life of a woman be punished”. Causing miscarriage i.e. induced abortion is therefore, considered to be a punitive offence throughout the territory of the country. Perhaps, it is important to note the significance of the terminology adopted by the relevant sections in the Code. It does not make use of the word “abortion”. Rather, the terms “causing miscarriage” are used, which can inferred to mean criminal abortion and not voluntarily causing miscarriage. What is clearly permitted under the Code is therapeutic abortion i.e. pregnancy being terminated when the life of the mother is at risk and for no other reason.

In this regard, a reference may be made to the case of Manikuttan vs M. N. Baby^[5], wherein the Kerala High Court observed that a fetus is another life in the woman who comes as a baby in the course of time. Therefore, death of the pregnant woman is, in reality, death of two lives and hence, compensation was directed to be paid with respect to the loss of two lives. To express profoundness in the views of the court, the exact words may be reiterated as follows:

“Loss of foetus should not be taken as an injury sustained by the pregnant woman in the accident. In the first place, foetus is another life in the woman and it comes as a baby in the course of time. Though foetus grows in the body of woman, it cannot be equated to or considered to be a part of the body of the woman. In effect, loss of the foetus consequent upon the death of the pregnant woman is actually loss of a child in the offing for the husband of the woman. Secondly, there is no scope for considering compensation for the bodily injury of the victim who died in the road accident. Therefore, it would be illogical to grant compensation treating death of the foetus along with the woman dying in the accident treating it as another bodily injury. Compensation to be granted for the death of a pregnant woman in motor accident is for loss of two lives. Therefore, appellant husband is certainly entitled to claim compensation separately for loss of his child in the womb of his wife who perished in the accident.”

In order to understand the independent recognition of rights, both of the mother as well as the fetus, it is important to throw some light on the relevant sections in the different pieces of legislation.

Different Legal Context which Recognise the Rights of a Pregnant Woman

The right of a mother to choose to be a mother or not emerges from her human right to live with dignity, which falls within Article 21 of the Constitution of India.

The Medical Termination of Pregnancy Act, 1971 is the parent Act laying governing provisions in this regard. In a nutshell, it mentions laws regarding the termination of pregnancy, by whom it can be terminated, the place where pregnancy can be terminated and the punishment for violation of the provisions of the Act. The said Act has legalized abortion in India while the National Health Mission works actively to ensure fair access to abortion. Both form a part of the nationwide strategy to reduce the maternal mortality rate in the country. It clearly specifies that the right of a woman to undergo abortion is to be regarded as an independent decision which is sufficient in itself. Under Section 3 of The Medical Termination of Pregnancy Act, 1971^[6], a woman is in no requirement to obtain the consent of her husband before exercising her right. This right is subject to two conditions viz. she is an adult and is mentally sound under the law. Only in cases where the woman is a minor or is mentally unstable, the written consent of a guardian is mandatory. Also, a rape victim bears no obligation to seek permission from the court to terminate pregnancy caused due to rape. Section 3(2)(b) permits abortion up to 20 weeks of pregnancy^[7]. However, courts have ignored this time limit as established under the Act and have permitted termination of pregnancy in case of rape victims.

Under The Medical Termination of Pregnancy Act 1971, there is ample clarity as to when and how abortion can be permitted to be performed viz. in cases involving physical or mental injury to the mother, where the fetus is medically discovered as handicap, pregnancy resulting due to failure of contraception and pregnancy in case of rape victims. Perhaps, various courts in numerous cases have taken a mixed approach. Some Courts have remained of the opinion that a woman’s choice to abort the fetus is to be supported by the consent of her husband, failing which the abortion shall not be permitted. In other words, it can be commented that such a view holds that the first right on the fetus is therefore, of the father and not the mother and this fact can be challenged as being not only highly unfair and discriminatory but also derogatory to the existence of a woman. For instance, in the case of S.K. Verma vs Usha^[8], the court states that an abortion carried out without the consent of the husband would amount to cruelty. The court in the said case did not take into account the provisions of The Medical Termination of Pregnancy Act, 1971.

It is a well-accepted belief that the right to the enjoyment of one’s limbs and faculties infers the right of a person over his/her reproductive choices/ processes. In the case of Kharak Singh vs State of U.P^[9]., the Supreme Court confirmed that a person has complete right over his “person”. The right to abortion is therefore another right that emerges from the right to live.

Different Legal Context which Recognise the Rights of an Unborn Child

• Section 6 of the Limitation Act, 1963^[10]: The said section provides that where a person is entitled to institute a suit or make an application for execution of a decree is a minor, at the time from which the prescribed period is to be reckoned, he may institute the suit or make the application within the same period after the disability has ceased. Further, explanation the section also clarifies that “minor includes a child in the womb”.
• Section 20 of the Hindu Succession Act, 1956^[11]: The said section lays down that a child who was in the womb at the time when the intestate dies and thereafter takes birth post the death of the intestate, is entitled to inherit in the same manner in which he would have been entitled to inherit has the child taken birth before the death of the intestate. The inheritance in such a case, shall be deemed to vest from the date of the death of the intestate.
• Mulla on Hindu Law, in its Fifteenth Edition, makes a comment on Section 20 which can be reiterated as follows:

It is by fiction or indulgence of the law that the rights of a child born justo matrimonio are regarded by reference to the moment of conception and not of birth (MAC. APP. No. 602/2009 Page 15 of 40), the unborn child in the womb if born alive is treated as actually born for the purpose of conferring on him benefits of inheritance. The child in embryo is treated as in esse (existence in nature) for various purposes when it is for his benefit to be so treated. This view is not peculiar to the ancient Hindu law but one which is adopted by all mature systems of jurisprudence. This section recognizes that rule of beneficent indulgence and the child in utero although subsequently born is to be deemed to be born before the death of the intestate and inheritance is to be deemed to vest in the child with effect from the date of the death of the intestate.

• Section 13^[12] and 20^[13] of The Transfer of Property Act, 1882: The relevant sections concerning the transfer of a property, makes a provision for the creation of an interest in the property for the benefit of a person who is not in existence. When such an interest is created for an unborn person, he acquires a vested interest on his birth.
• Section 112 of The Indian Succession Act, 1925^[14]: The said section highlights the rights of a person coming into existence after the death of the testator.
• Section 7 of The Indian Succession Act, 1925^[15]: This section states that the domicile of origin of a person is the place where the father of such a person was domiciled at the time of his birth and in the case of a posthumous child, it shall be the country in which the father died.

It would also be worth mentioning, the explanation given by The Black’s Law Dictionary on “The Rights of an unborn child”. It says that the rights of an unborn child has received considerable recognition in different legal contexts viz. criminal law, Section 187 of the California Penal Code^[16] which deals with murder includes murder of a fetus as a punishable offence, transfer of property laws which identify the rights of an unborn child for the purpose of creation of beneficial interest in the subject-matter of the property i.e. transfer by will or descent. After the child takes birth, he/she is entitled to initiate a legal action in case of wrongful death caused to his/her parent. In addition to this, if the child takes birth, he/she under law, can adopt legal remedies for the pre-natal injuries sustained and in any event, where the fetus dies, an action lies for his wrongful death. The opinion on this point is however found to be a mixed one. Some states are of the view that any injury caused, even during the early weeks of pregnancy are sufficient to raise an action while on the other hand, others are of the view that the fetus should be viable before any legal action is brought under the name or on behalf of the unborn child.

Salmond’s Law on Jurisprudence comments on the issue in its Eleventh Edition on pages 354 and 355 by stating that though dead persons have no legal identity, the position is otherwise when it comes to an unborn child. There is nothing under any law which prevents a person from owning property before he takes birth. The possibility of the person not coming to life cannot be negated. Nonetheless, it still constitutes real and present ownership.

A child in a mother’s womb, is, for various reasons, considered to be already born in support of the maximum “Nasciturus pro jam nato habetur” which means “The unborn is deemed to have been born to the extent that his own benefits are concerned”. The said latin maximum states makes a reference to laws that grants or protects the rights of an unborn child. Thus, under the law of property, a child is considered as a person being in existence for the purposes of: 1. The acquisition of property by the child himself and 2. Being a life chosen to be a part of the period in the rule against perpetuities.

Conclusion and Recommendations to Advance Just and Fair Access to Abortion

Arguments as regards liberalization of laws with respect to abortion have received mixed responses. Many fear that liberalization will result in killing of the innocent fetus on a mass scale and would indeed mean acting extremely unfair towards life. The killing of girl child may also rise. Perhaps, there are also some aspects to the issue. The situation can be kept under control only through strict law enforcement and monitoring agencies like Pre Natal Diagnostic Techniques (PNDT) Act and active state authorities.

In India, though the laws do recognize the unborn child as a legal person, rights are not conferred on the unborn child until it takes birth. In other words, the state can intervene only when the unborn child takes viability and not before. The position in the Indian scenario remains unclear as to how the law will protect the rights of an unborn child and what is the degree of liability that is owed to such an unborn child.

One of the prominent reasons that make not only the mother but also the unborn child vulnerable is the lack of basic antenatal care in the country. The welfare of an unborn child is possible only when the rights of the mother are recognized in the first place and health of the mother is given due consideration. There are numerous reasons for the neglect of a pregnant woman in the society. There are records and reports which reveal that in many cases of pregnancy, the woman is not extended adequate medical attention. It is of paramount significance that laws and their enforcement is taken seriously thereby making respective families and medical practitioners accountable for the neglect towards the same. Only when the issue is addressed considering it as a serious concern, will the true welfare of the fetus take place.

There is a need to move beyond reliance on the judiciary and to work on proactive policies at the state level that ensure just and fair access to abortion. There is a need to put in more efforts to protect and advance abortion rights; relaxation of unnecessary restrictions. There must be limited government interference with respect to reproductive rights and choices, ensuring that access to abortion, so also birth control and sterilization best remains with the patients and their providers. Additionally, health insurance plans and policies must cover maternity health benefits inclusive of abortion care.

(This post has been authored by Zuba Parvez Bubere. She is currently practising at the Bombay High Court, having obtained her LLM Degree in Business Laws from Symbiosis Law School, Pune)

References

1. Oriental Insurance Company Ltd. v. Santhilal Patal, 2007 (4) ACD 835. ↑
2. The Constitution of India, art. 21 (1949). ↑
3. The Universal Declaration of Human Rights, arts. 11, 12 (1948). ↑
4. The International Covenant on Civil and Political Rights, art. 17 (1966). ↑
5. Manikuttan v. M.N. Baby, 2009 ACJ 1497 Kerala HC ↑
6. The Medical Termination of Pregnancy Act, sec. 3 (1971). ↑
7. Id., sec. 3(2)(b). ↑
8. S.K. Verma v. Usha, F.A.O. No. 251 of 1983. ↑
9. Kharak Singh v. State of U.P.and Others 1963 AIR 1295, 1964 SCR (1) 332. ↑
10. Limitation Act, sec. 6 (1963). ↑
11. The Hindu Succession Act, sec. 13 (1956) ↑
12. The Transfer of Property Act, sec. 13 (1882). ↑
13. Id., sec. 20. ↑
14. The Indian Succession Act, sec. 112 (1925). ↑
15. Id., sec. 7. ↑

16. The California Penal Code, sec. 187 (1872). ↑