INTRODUCTION
The subject of abortion is a controversial subject for
two different kinds of people. One group is arguing for it and another one is against
legalizing it. Both groups are equally right in their opinions. Because it is not only
the question of the right of the mother but also the unborn child in the mother’s womb. In this
contrast, Many countries came forward with their views and basis where it says
abortion may be legalized. Hence it is important to know the judicial aspects for
finding the answer to the question legalizing abortions is permitted or not. This
article tries to focus on such aspects relating to the legalization of abortions.
VIEWPOINTS ABOUT ABORTION
There are two viewpoints in respect to this matter. First one
is natural law and second one is sociological school of law. It delivers very
contrasting views regarding the legalization of abortions. On one hand Natural
law, centralizing more on the aspects relating to morality and perceptions of law.
It fiercely denies the idea of permitting the abortions legally. In this subject the
views of natural law are extreme. On another hand, the opinion of sociological
school is realistic and sensible. However, even this school faces difficulty while
giving an exact answer to the questions. sociological school of law finds it
difficult to give an exact answer to the question, hence it is a point of particular
conditions. In other words where abortions are permitted but in certain or limited
cases.
LEGAL ASPECTS OF ABORTION
In focusing on the legal aspects of abortion, it is important
to observe constitutional developments on abortion rights, adult and minor rights,
conscience clauses, and issues of abortion and misconduct. In 1973, the U.S.
Supreme Court in Roe v. Wade ruled that the right to privacy under the concept of
individual liberty guaranteed by the Ninth and Fourteenth Amendments to the
U.S. Constitution includes the right to choose whether to have an abortion.
women’s rights to These lawsuits ruled that laws that prohibit abortion or that set
requirements so strict as to make abortion impossible are unconstitutional. While
the court recognized the state’s interest in protecting the health of the mother and
preserving the life of the unborn child, a woman’s right to privacy was an
overriding fundamental right, and the state demonstrated its overriding interest.
The court analyzed abortion rights based on different stages of pregnancy. During
the first trimester, women have virtually unlimited rights to have abortions
without state or federal interference. A decision is made between the woman and
the doctor.
HEALTH AND SUBSTANTIAL RISKS RELATED TO ABORTION
The Abortion Act of 1971 (also known as the “MTP Act”)
is the law that governs the procedure. Until the 20th week of pregnancy, a
the pregnant woman has the right to have an abortion performed by a registered
medical professional if she is able to demonstrate that continuing the pregnancy
poses a risk to her life or “would cause grave injury to her physical or mental
health, or if there is a substantial risk that the child will be born with severe
physical or intellectual abnormalities.” Pregnancy due to rape or because of the
failure of contraceptives could represent grave intellectual fitness damage. Section
five permits the termination of being pregnant past 20 weeks if it’s far right away
important to store the female`s lifestyles.
The Court establishes a Medical Board, a professional body of scientific
professionals who write a Report, “in all cases of abortion past the 20-week mark
that have occurred before the Court. The Report considers two sets of questions:
first, whether the mother’s continued pregnancy poses a significant risk of
physical or mental harm to her, and second, whether the unborn child faces a
similar risk of suffering from severe impairments.”
Also, Read THE LAW OF TORTS GENERAL DEFENCES
JUDICIAL DECISIONS WITH RESPECT TO ABORTION
“In all cases involving abortions after 20 weeks that have
come before the Court, the Court will appoint a Medical Board, which will consist
of medical and scientific experts who will compile a Report.” The Report
examines two sets of questions: first, whether or not the mother faces a substantial
risk of physical or mental harm from continuing the pregnancy, and second,
whether or not the unborn child faces a substantial risk of suffering from severe
impairments. “The Supreme Court has reached similar conclusions in other cases
involving pregnancies that progressed beyond 20 weeks and involved fetuses with
a variety of medical conditions and anomalies that posed a significant risk to both
the foetus and the mother.” “(Tapasya Umesha Pisal vs. Union of India 1 [24
weeks]; Meera Santosh Pal vs. Union of India 2 [23 weeks]; Mamta Verma vs.
Union of India 3 [25 weeks]).” The Supreme Court, in the vast majority of these
1 Tapasya Umesha Pisal vs. Union of India (CIVIL) NO.635 OF 2017
2 Meera Santosh Pal vs. Union of India (2017) 3 SCC 462
cases submitted the issues at hand to a Medical Board before rendering its
the decision, which was then substantially based on the view of the Medical Board.
In Murugan Nayakkar vs. Union of India & Ors. W.P. (C) No. 749/2017,
“Considering the age of the petitioner, the trauma she has suffered due to sexual
abuse and the pain she goes through at present and above all, the record of the
Medical Board constituted via way of this Court, we suppose it suitable that
termination of being pregnant must be allowed,” the Supreme Court ruled in favor
of terminating the pregnancy of a 13-year-old rape victim who was 32 weeks
along at the time.
Also, read Jamiat Ulama-i-Hind challenged anti-conversion laws
However, in “Savita Sachin Patil vs. Union of India,” A woman who was 27
weeks pregnant was not allowed to have an abortion. There was no risk to the
mother’s health, but the fetus had severe physical abnormalities, according to the
Medical Review Board’s finding. After reviewing the Medical Board’s report, the
court ultimately decided to not allow termination for cause.
CONCLUSION
There are a plethora of steps that need to be taken. In order to
expand abortion beyond 20 weeks and make recommendations for the same, a
comprehensive reform of the MTP Act is needed. There are varying viewpoints
among Medical Board members on when termination is suggested, so it’s
important that there are guidelines for the Board to follow while forming its
policies. Numerous situations raise challenging considerations about the fetus’s
incapacity and pit the rights of the female against reproductive autonomy and
incapacity rights. These are complex problems, and it would be a mistake to
3 Mamta Verma vs. Union of India (2018) 14 SCC 289
assume that Medical Board Reports alone will provide solutions. Respect for
women’s reproductive choices must underpin any discussion of abortion after 20
weeks and any substantial regulation or process must be presented in a way that
gives women a voice.
SUBMITTED BY
MS. VAISHNAVI K. PARATE INTERN AT FASTRACK LEGAL SOLUTIONS
