Comparative Analysis of Abortion Laws in India and USA

Introduction

The birth of a child gives happiness in lives of a couple and their families, but with birth of a child comes a great sense of responsibility. However, there are situations in which pregnancy is unintended and the process of medically ending that pregnancy is known as abortion. But when pregnancy is ended without any medical intervention (interference), it is known as miscarriage.

Having an abortion is always a personal choice of a woman, there can be many reasons of having an abortion. Most common reasons that women sight for having an abortion are financial instability, unplanned pregnancy, pregnant with a sexual abuser’s child, having a bad relation with father of the child and may be any other reason, decision on this matter lies with women or the couple.

But there are cases when pregnancy is planned and still the couple decides to have abortion, which includes if giving a birth to child can cause problems to the health of the mother or in some cases death of the mother can also occur In such cases, couples decide to terminate pregnancy. Termination of pregnancy can be done in two ways: one is through surgical procedure in which termination can be done within 14 weeks i.e. first trimester of pregnancy; and second is through by taking pills in which pregnancy can be terminated within nine weeks. 

For countries like India abortion can be beneficial, as it controls the increase of population as well as the financial stability of a family increases, which increases the per capita income of a person and the standard of living of a person. Countries like India, Canada, Britain, China, Ireland have very flexible laws regarding abortion, which legalize abortion in certain situations. But there are many countries that are strictly against abortion; like, Egypt, Jamaica, Iraq and one of the recent addition to this list is USA with the overturning of Roe vs. Wade.

Social Perception and Impact

As we have seen, for the true meaning of abortion, it is important to understand how society perceives abortion. In general, there are two groups in a society: those who favour abortion and those who do not.

People in favour of abortion believe that it is a woman’s right to determine whether or not to have an abortion. While there are several considerations that go into such important decisions, society as a whole should not have any input. Those who favour abortion believe that prohibiting an abortion is a violation of the individual’s personal liberty. Therefore, it is important to consider things from a woman’s point of view as well; their choice should be the one which is allowed. If we prohibit women from having abortion it will increase population and it can be major problem for countries like India, which will lead to poverty increase as well, it may increase single mothers, teen pregnancies and other leading causes that can affect directly on economy of that country.

There are people in society who do not support termination of pregnancy. There are several reasons why abortion has historically been stigmatized or viewed negatively. Religion is a bigger factor in this than other factors since it teaches that it is immoral to end a pregnancy because people think that children are God’s gifts. Abortion can also be used as an excuse to discourage individuals from using protection during sex, which is very selfish and it can further increase the incidence of Sexually Transmitted Diseases. People think that an unborn child has rights that should be taken into account. In India, the unborn child has been given a legal status and has constitutional protections for their rights. With this in mind, regulations surrounding abortion have been enacted in India.

Abortion Laws in India

There are many laws that are made for abortion in India;

Indian Penal Code (1860):

The Indian Penal code is criminal code of the country, which was drafted in the year 1860. Every general crime is defined under IPC, in which abortion is also defined under certain sections;

Section 312: It says that voluntary miscarriage caused not for the benefit of women shall be punished with imprisonment of either description or which can extend up to the term of 3 years or fine; or both. And if a woman is quick with child (if movement of foetus have been felt by women) and miscarriage is done voluntarily, then one will be punished with imprisonment of either description or term which may extend to seven years or fine; or both.

Explanation – A woman who causes herself to miscarry, is within the meaning of this section.

Section 313: This section mentions that anyone who causes miscarriage of a woman without her consent as per the pervious section; will be punished with imprisonment for life or either description or for a term which may extend to ten years, and shall also be liable to fine.

Section 314: If any person with the intent to cause miscarriage of a woman causes the death of the woman; will be punished with imprisonment either description or of a term which may extend to ten years, and shall also be liable to pay fine. If the same act is done without consent of women that person will be punished with imprisonment for life or same punishment as above.

Explanation – It is not essential to this offence that the of­fender should know that the act is likely to cause death.

Section 316: It states that if any person causes the death of quick unborn child or does any act which may cause death will be amounted to culpable homicide, for which he will punished with imprisonment of either description or term which may extend to ten years, and shall also be liable to fine.

The Medical Termination of Pregnancy Act, 1971 (MTP):

Section 3: Pregnancy may be terminated by the medical practitioner who is not guilty under any offence of the IPC, the pregnancy may be terminated when it does not exceed twelve weeks and if one registered medical practitioner is there, and when it exceeds twelve weeks, there should be two medical practitioners and should not exceed twenty weeks. In situations where the pregnancy is fatal for mother, or the child to be born may be born with certain abnormalities; that pregnancy can be terminated under this section.

Section 4: Pregnancy can be terminated at hospital maintained or established by government or place approved by the government for the purpose of this act only.

The Medical Termination of Pregnancy Bill (2021):

This bill was approved by the Rajya Sabha in 2021, but it was passed in Lok Sabha in March,2020. This bill was passed for better excess of facilities to women and more relaxation in MTP (1971). Prominent feature of this act isthat women who get abortion, name and address of those women shall not be disclosed. Gestational period is increased from 20 weeks to 24 weeks. This would include differently abled women, rape survivors, minor girls; the marital status of girl will not be a key factor. And the ground of failure of contraceptive is also extended to women and their partner as well.

Article 21 with regards to Abortion:

Article 21 states that, “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Abortion should always be a personal choice for women and no woman should be deprived of same. Right to privacy, right to health, right to dignity of women has been guaranteed under this article. Every person has a right to privacy in the case of marriage, procreation, his own, his family and no person shall be deprived of same. Certain restrictions can be imposed as this right is not an absolute right. Health is one of the most important factors of life, and it is a state’s legal obligation to ensure the health of its citizens. This does not only include timely, adequate and proper health facilities, but, it also includes the promotion of healthcare, development of children and women.

But if women are deprived of terminating a child, they will choose unsafe options for abortion which will eventually increase mortality rate of pregnant women, which will increase mortality rate in country. Merely a physical existence does not conclude to life, barely the necessities like nutrition, drinking water, shelter, food, health care, education does not lead up to life. Life includes all these factors as well as right to live with dignity and any person has that right regardless of their occupation. In case of rape, women lose their dignity in the society, but hope to survive in the society and if the option of terminating the pregnancy is not available, it will lead suicides or opt for unsafe abortions/ illegal abortion, which will affect their health. But if we talk about right of an unborn; in India, an unborn has been given legal status and certain rights are vested upon it. But, right of living entity is more important than a right of an unborn. And as a child is in womb of a woman, it can be considered as one of the parts of the woman, so if she chooses on her own to terminate pregnancy, then it is better to have an abortion.

Judicial Trend in India

1. Suchita Srivasta   V.   Chandigarh Administration:

In this case, a nine year old woman suffering from mental retardation was raped and as a result of that she was impregnated. High court of Punjab and Haryana stated that she will not be able to take care of a child and there may be chances of child suffering from illness too. So, without women’s consent, the order of aborting the child was given. This verdict was challenged in Supreme Court, it stayed the judgement by saying that termination of pregnancy of women is her personal liberty as per article 21 of Indian constitution, denying her from that may result into violating constitutional provisions. It further stated that just because the woman was mentally retarded, it does not give HC the right to decide abortion without her consent. As per article 21 it clearly means that it is a woman’s personal choice and there is a difference between being mentally retarded and mentally ill.

2. Murugan Nayakkar   V.    Union of India:

In this instance, a 13-year-old minor who had been sexually assaulted and raped requested permission from the court to end her pregnancy at 26 weeks. For this court appointed medical board to review the case. It was held by court that the abortion should be permitted due to the trauma she has had as a result of the sexual abuse, the suffering she is currently experiencing, and most importantly the report of the Medical Board that this Court appointed.

3. Justice K.S. Puttaswamy v. the Union of India and Others:

The court recognized the constitutional right of women to make reproductive choices as a part of personal liberty under Article 21 of the Indian Constitution, which, despite establishing a strong body of law on reproductive rights and a woman’s right to privacy, does not result in a significant transfer of power from the doctor to the patient seeking an abortion.

Constitutionality of US Abortion Laws

The legality of abortion laws in the United States of America has always depended on the state laws itself. In 1973, first case that came was Roe v. Wade that gave abortion a legal status in the States, and gave women abortion as their constitutional right. In this case, it was observed by the Supreme Court that a woman’s choice to get pregnant is a personal privacy right protected by the Due process clause (it means that no person shall be deprived of life, liberty or property). Further court established that an unborn is not considered as a person, as given in due process clause, thus, unborn lacked federal constitutional provision. It was summarized in the end that right to make decision whether to terminate the pregnancy or not depends on women. But in other cases in some states, certain restrictions were imposed such as requiring parental or spousal consent for getting an abortion.

Roe v. Wade was partially overturned in 1992 in Planned Parenthood of Southeastern Pennsylvania v. Casey. The first is the acknowledgement of a woman’s right to choose to have an abortion before viability and to get one without excessive state interference. Prior to viability (case where foetus will survive outside womb without any external medication), the State’s interests are insufficiently compelling to justify either outright bans on abortion or the creation of significant barriers to a woman’s effective right to choose the surgery. Second, if the legislation makes an exemption for pregnancies that jeopardize a woman’s life or health, it confirms the State’s authority to limit abortions after foetal viability. And the third is the idea that the State has legitimate interests in upholding from the beginning of the pregnancy.

Overturning of Roe  v.  Wade

This was the case through which US women got abortion as their constitutional right in 1973. Due to this, abortion law was relaxed in the states. In 2022, this landmark judgement was overturned and gave all the states their individual rights to govern and make their own abortion laws, which means that state doesn’t have to take precedence of roe v. Wade, which gave right to terminate pregnancy to US women in first two trimesters. Due to this, half of the states are going to restrict the abortion, as a result of the Supreme Court’s decision. These affect many women who would either sort to cross state border to get abortion, or would choose some unsafe methods for abortion.

Comparative Analysis

India

Abortion has always been a contentious issue that divides people’s opinions. However, as laws change constantly, women might feel more at ease. We can see that our laws are changing as a result. Since the introduction of the IPC in 1980, abortion has only been permitted when the mother’s health is in danger; or else, it is a crime. When the MTP Act of 1971 was established, most nations did not have legislation to that effect. It was a significant development at the time since one of its goals was to stop female foeticide and prenatal sex determination from becoming crimes in India because of the preference for a boy child over a girl child. Then the new amendments in MTP act states, that medical status of women in out of question and it covers both. Privacy of women is also given an importance and breach of privacy can be punishable under the new amendments, gestational period has also been changed. Thus, there are many improvements coming into the laws relating to abortion in India, but still social acceptance is low and more awareness can be brought for the same.

USA

Abortion was legalized in US through the Roe v. Wade case; the court recognizes the right to abortion as women’s right to privacy. And they think that it is women’s choice to decide whether to terminate the pregnancy or not. Through this decision states becomes one of the first country in world to relax abortion laws. By this decision women could get termination of pregnancy in first trimester of pregnancy. Then, further certain restrictions were imposed on abortion laws as parental or spouse consent for abortion. But overturning of judgement, strikes down the precedent of supreme court that abortion is constitutional right, which gives all the states right to either ban abortion or restrict it in most the cases. Whether it be rape or teen pregnancy, some might not even be exempted from these situations as well. People who advocate’s abortion have criticized this decision, but who supported abortion have applauded the decision of supreme court.

Conclusion

After analyzing the laws of both the countries one can say that India’s abortion laws are much more flexible compared to those of the US. Whether it be India or US, it is a woman’s right to decide, or choose whether they want the child or not. Even though India was late to recognize abortion as a right to liberty under article 21, but they have done it and one can see progress in abortion laws. And abolishing right to abortion violates women’s right to liberty, health, privacy and life. Abortion should have a legal right so as to protect the physical and mental health of women. 

This article is authored by Dhanda Shah, student at LJ School of Law.