We are going to do a comparative analysis of abortion and infanticide laws under different jurisdictions ranging from semi liberals (legalised abortion on specific grounds) to liberals (legalised abortion on request). The answer tries to compare more than two jurisdictions so as to help us better analyse and understand the nuances and reasoning behind such laws, its respective problems and reformative solutions.
Firstly, let’s understand primary issues surrounding abortion that renders it bound to regulation (both positive and negative). This would give us an insight into the purpose behind abortion legislations.
- To deal with the primary issue of foetus’ right to live vs the women’s right to privacy, K.S.Puttuswamy and Anr Vs UOI1 judgement has recognised a person’s right to procreate and in extension the right to abort as a part of the person’s right to privacy. Therefore the actual question now becomes when does the foetus break the legal person barrier from being a part of mother so as to attain its rights to live so as to refrain a women from committing infanticide. The issue is also intertwined with the states duty to protect its female citizens life this extending the issue to decide the period till which the procedure could be completed safely without high probabilities of complications so as to protect the life of the women while exercising her right to privacy.
- Secondly, the cultural influences that trigger both - anti and pro-abortion sentiments by attaching a religious(extended societal) stigma towards the concept of abortion in itself on one hand, simultaneously promoting female infanticidal attitudes through its engrained patriarchal norms on the other. Though female infanticide in primarily indigenous to and most prevalent in South Asian countries such India, China, and Pakistan we could find instances in countries such as Azerbaijan, Brazil etc2.
- Population control yet another issue that pushes governments to promote abortion as an viable option to regulate the undesired births.
The laws and following which our analysis primarily aims on regulating these grounds in the best way to give women as much agency over such issue.
INDIA – SOCIO ECONOMIC APPROACH
Indian abortion laws can be defined as abortion on socioeconomic grounds. Indian legislation covers abortion related provisions primarily through Medical Termination of Pregnancy Act of 2020, and secondarily through various sections in IPC such as S.312-315. The structuring of MTP Act of 2020 was based on the above mentioned grounds, as the act primarily puts 2 limitations over the act of abortion. S.3 says a medical practitioner wouldn’t be held liable for infanticide if termination of a pregnancy was conducted
- Within 24 weeks of the pregnancy - at the discretion of a practitioner till 20 weeks, and two practitioners till 24 weeks – (inculcating a balance between right to privacy and state duty objective)
- Only on the following grounds –
- If the foetus is a life threat to the mother
- If the foetus would have serious physical or mental abnormalities in case of birth
- If the continuance of the pregnancy would make the mother suffer from severe physical or mental injury.
- Anguish caused by a pregnancy that resulted from rape can deemed under mental injury in this case - (inculcating regulation of cultural influence objective)
- Continuance of Pregnancy resulted from failure of contraceptives can also be deemed under mental injury (inculcating population objective)
- With the women’s (married/unmarried) consent or with the consent of the guardian in case of a minor or a lunatic.
An exception to these grounds are made under law that is where there is an immediate life threat to the mother is posed that can be caused due to the continuance of the pregnancy, in that case she is allowed to abort under a practitioner even without fulfilling any grounds even after 24 week period. The law doesn’t discriminate over nationality in case of abortion. That is to say anyone can abort in India given that the fulfil the aforementioned criteria.
SINGAPORE – SEMI LIBERAL APPROACH
Singapore legislation allows for abortion on request. The primary law that now governs abortion in Singapore is Medical Termination of Pregnancy Act of 1985 and secondarily penal provisions such as S.312-315 for miscarriage and infanticide. The MTP of 1985 allows for abortion on request (inculcating the population control objective)
- By any person if it’s under 16 weeks (S.10)
- By a qualified medical practitioner either by qualification, special skill or by appointment in an approved institution if the pregnancy is above 16 but under 24 weeks. (S.4(2)b) - (inculcating a balance between right to privacy and state duty objective)
S.4(1)(a) allows abortion after 24 weeks only in case of immediate threat or grave injury to life, physical or mental health. But they don’t require any grounds to abort pregnancy under 24 weeks. But they discriminate on nationality basis, that is to say S.3 restricts abortion procedures only to couples either of whom are citizens or people with work permits under Employment of Foreign Manpower Act or a 4 months resident of Singapore.
CANADA – LIBERAL APPROACH
Canada unlike many other countries manages its abortion issues through precedents and regulations after the decriminalisation of abortion by the SC in the case R. v Morgentaler(1988). They permit abortions on request and don’t have threshold during the period of pregnancy after which procedural abortion is penalised. They uniquely do not have one specific centralised government legislation to guide them. The abortions in Canada are partly regulated and funded by the Canada Health Act which delegates the power to every medical institution to regulate abortion through their own policies. Therefore in Canada, abortion on request at any point of time is legal and not penalised by law, though access to abortion procedures are regulated by the medical institutions in the country. The entire trust and subsequent burden of not endangering the life of patients (while achieving the balance between right to privacy and state duty objective) is transferred to the medical institutions therein.
Infanticide laws in all these nations are similar –
- Indian and Singapore provides for an imprisonment of 7 to 10 years of either description and fine under sections 312 – 316 of their respective penal codes.
- Canada provide an imprisonment of imprisonment of 5 years under the section 233 of Canadian criminal code.
SIMILARITIES AND DIFFERENCES
Termination of Pregnancy under Indian law can legally happen only in the cases that fall within the inner most circle. Infanticide laws are very similar in India and Singapore.
| India | Singapore | Canada | |
|---|---|---|---|
| Governing Legislation | Medical Termination of Pregnancy Act of 2020 | Medical Termination of Pregnancy Act of 1985 | No common legislation – Canada Health Act delegating power to legislate regulations and funding medical institutions |
| Time barrier | Abortion is penalised after 24 weeks unless in case of exception.Till 16 weeks – at the discretion of one practitioner. 16 - 24 weeks – at the discretion of 2 practitioners. | Abortion is penalised after 24 weeks unless in case of exception.Till 16 weeks – at the discretion of one practitioner. 16 - 24 weeks – at the discretion of 2 practitioners. | Abortion can be done at any time during pregnancy with being penalised. But is still at the discretion of the respective medical institution. |
| Grounds to be fulfilled | Either on threat to life of the women Or threat of serious physical or mental injury to mother or the child. | On request | On request |
| Exceptions to penalisation | In case immediate threat to life or of grave injury | In case immediate threat to life or of grave injury | No penalisation at all |
| Consent | The women’s and the guardian’s in case of minor or a lunatic | Same of India | The women’s (if she is 16 or above) and if below at the discretion of the doctor either only hers or her parents. |
DRAWBACKS, MERITS AND SCOPE OF REFORMATION
We here try to discuss few nuances in Indian law that contradicts and support the purpose of providing the women with best level of agency over this issue from an Indian perspective. There can be different circumstances both morally correct and incorrect under which a women/girl could seek an abortion such as unwanted pregnancy due to the failure of contraceptive, forced impregnation (marital) etc; rape; sex determined to be female (female infanticide). This is to say a medical practitioner simply cannot help a women to legally abort after the period of 24 weeks under normal circumstances whatever the reason for the delay could be or how much ever unwilling she is to continue the pregnancy or however bad the present/future social, economic environment of the mother or the child could be. The only alternative remedy is to get a permission thorough a Writ Petition.
In this study, female foeticide and infanticide being applicable only to and very prevalent in Indian society out of the three nations the laws presently are justified in having specified grounds on which the abortions could be proceeded. But there are other nuances where the law lacks. Some of them being -
- The act doesn’t differentiate between important issues3 such as
- Normal pregnancy and the one’s caused due to Rape
- Impregnation of a minor due to Rape and a Major
- The viability of abortion laws in India lags a bit behind as there is not much clarity in MTP act on various grounds of abortion as it had tried to widen the scope of it by generalising the legislation. This has resulted in practitioners and patients being forced to either rely precedents and interpretations of courts or seeking courts assistance to create a present in their respective circumstance5.
These differentiations are much needed considering the fact that India is a conservative society with prevalent women centric stigmas around rape. This makes it extremely hard for Indian women, especially minors, to come out to their parents, if raped, which in turn makes it even more difficult for the guardians to figure out pregnancy at an earlier stage. Thus, minors in many cases tend to cross the 24 week barrier before officially seeking an abortion. This has proven to be the actuality from the previous case laws4. Impregnation and subsequent birth resulting from a rape could act as lifelong reminders of the traumatic incident. Denying abortion in such cases due to legal technicalities based on probable assumptions (arise of complications during the procedure) could have worse effects on the person. Especially considering the advancements in gynaecology that has drastically reduced the probabilities of complications that might occur during the procedure. The law should make a proper differentiation between such cases.
But unlike Canada, with weak medical infrastructure along with several deep rooted negative cultural influences such as gender based female foeticidal attitudes, India cannot suspend penal laws on abortions while transferring its burden entirely to the medical society. The diagram below shows the justifiable time limit till which abortion could be legalised but proceeded only on discretion of accessible yet better medical infrastructure such as a doctors panel and medical equipment. To elaborate -
- as mentioned earlier a rape victim (minor or a major/ marital or unmarital ) shall be allowed to abort at the discretion of the practitioner any time before the birth after due consideration to her safety on continuing the procedure.
- Unwanted pregnancy shall be allowed to abort till the present barrier in accordance with the present laws
- But along with a check which requires the patients to prove not to have determined the sex of the baby for any abortions after 14 weeks as that is the earliest point to determine the sex of a foetus. Though this is an impractical implementation now, this scheme might be successful when implemented after a period with rigorous awareness campaigns able to break myths of stigma added to having a girl child among the Indian society.
1 (2017)10 SCC 1.
2 S.F.Feitosa, Bioethics, culture and infanticide in Brazilian indigenous communities: the Zuruahá case, 13thmay 2010, http://www.scielo.br/scielo.php?script=sci_arttext&pid=S0102-311X2010000500002, 12th December 2020.
3 NDTV, abortion laws: caught in a time wrap? (24th September 2017), https://youtu.be/LE1TcPUQzFs, 12th December 2020.
4 Samarjit ... vs Union of India, Madhukar Manaji Athwale (In Jail) vs The State of Maharashtra
5 NDTV (n 4)