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Abortion and law: A comparative analysis between the Conservative and the Liberal approaches.

 

Desk Team LawDocs

Contents  hide 

1 Legal position of abortion in India:

2 Legal position of abortion in Ireland:

3 Supreme Court of Ireland

4 How MTPA, 1971 paved the way for a flexible path to making decisions in India:

5 How the repealing of the 8th amendment paved the way for a flexible path to making decisions in Ireland:

5.1 Protection of Life During Pregnancy Act (PLDPA)

6 India v/s Ireland:

6.1 Related

Legal position of abortion in India:

According to section 312 of The Indian Penal Code, 1860, any person who (could be the mother herself 1) would voluntarily cause a woman with a child to miscarry, would be punished with imprisonment according to the conditions mentioned therein, if and only if the act was not done in good faith so as to save the life of the pregnant woman. The Indian law treats the life of the mother to be more precious than the yet to be born life of the child in situations where the mother’s life is at risk. An in-depth perusal of the legal provisions would reveal that the law of abortion in India until 1971-1972 was very strict, and it was honored more in breach than in observance.2.

Before the MTP Act, that is considered as a landmark in the history of social legislations in India, that was passed in April 1972, abortion was only legal on “therapeutic” (medical) grounds. This legalized abortion to an extremely narrow path which gave rise to what is known as induced abortions. There was no law that was in favor of women or one that gave the women a “choice” to carry out the pregnancy to term. Even if a women/girl became pregnant as a result of rape, the law did not legalize the abortion until the pregnancy would be risky to the life of the mother. It was estimated that as many as five million abortions were carried out in India every year, of which more than three million were illegal.3 

Legal position of abortion in Ireland:

Ireland being a country that follows the Conservative approach, it did not permit abortion under any circumstances. It had completely criminalized abortion which forced people to fly to England in order to get an abortion done. In a particular case of Attorney General of Ireland v. Ms. X,4where a 14-year-old girl had become pregnant as a result of alleged rape, the Attorney General, obtained an interim injunction in the High Court so as to stop the family 

  1. Section 312, The Indian Penal Code, explanation
  2. Gaur, K.D. “ABORTION AND THE LAW IN INDIA.” Journal of the Indian Law Institute, vol. 28, no. 3, 1986, pp. 348–363. JSTOR, www.jstor.org/stable/43951024. Accessed 8 Dec. 2020.
  3. N.R. Madhava Menon, “Population Policy, Law Enforcement and the liberalisation of Abortion: A Socio legal Inquiry into the Implementation of the Abortion law in India'”, 16 J.I.L.I., 626 at 632-633(1974) 
  4. 1992 1 IR 1

from flying to England to get an abortion. In Ireland, the right to life of an unborn is on an equal pedestal with that of the right to life of a mother. The court rejected the plea that the 14-year-old girl would go through psychological damage and mental health issues and went ahead with granting the injunction so as to stop the family from doing the process of killing the fetus. The law was so strict that it did not take into consideration that the fetus would be a product of rape and force.

Supreme Court of Ireland

The Supreme Court of Ireland only discharged the injunction when the girl tried to attempt suicide and when the court saw that there was a “real and substantial risk” to life of the mother. Such an extreme and strict law which does not take into consideration the ‘wrong’ that lead to a pregnancy and forces the mother to keep the child has been affecting the lives of women. But, with continued and never-ending protests by the people of Ireland, the law could finally be changed, but this change came with another set of restrictions that makes the to be less successful for most women. 

How MTPA, 1971 paved the way for a flexible path to making decisions in India:

To soften the rigours of the law of abortion contained in the Indian Penal Code, 1860, the Medical Termination of Pregnancy Act of 1971 was passed. This act regulates the conditions under which a pregnancy may be abort. The object of this Act, besides being the elimination of high incidence of illegal abortions, is perhaps to confer on the women the right to privacy, which includes the right to space and to limit pregnancies, the right to decide about her own body.5

The act also tries to ascertain a middle ground between the two conferring opinions. One, the state has an obligation to protect lives and should thus protect the life of the fetus, another view is that, terminating a pregnancy is the choice of the pregnant woman, and a part of her reproductive rights.6 With the passing of the act, a woman is able to terminate her pregnancy within the first 20 weeks,

under the provisions of the law by a registered medical practitioner, when the pregnancy involves:

  • A risk to life of a pregnant woman; or
  • A risk of grave injury to her physical or mental heal
  • If the pregnancy is cause by rape; or 
  • A substantial risk that, if the child would suffer from some physical or mental abnormal be seriously handicap; or
  1. Gaur, K.D. “ABORTION AND THE LAW IN INDIA.” Journal of the Indian Law Institute, vol. 28, no. 3, 1986, pp. 348–363. JSTOR, www.jstor.org/stable/43951024. Accessed 8 Dec. 2020. 
  2. Roe v. Wade, 410 US 113 (1973) 
  • Failure of any device or method used by the mar the purpose of limiting the number of children;
  • Risk to the health of the pregnant woman by reason of her actual or reasonably foreseeable environment.

Even with the existence of the MTP Act, 1971, survivors of rape in India faced tremendous hardships in order to get an abortion. Centre for Enquiry into Health and Al- lied Themes(CEHAT), a research institute that had been surveying health and

violence against women, and had identified that women in public hospitals who had disclosed rape by their husbands faced extreme barriers which led to denial of abortion.7

The two most prominent reasons given by such health care providers were that:

  1. “Refusal in abortion because it was the first pregnancy and that abortion may cause secondary infertility, and that it may be a threat to their lives.” Even though CEHAT provided factual details that contradicted their statements, the health care providers refused to carry out the abortion. 
  2. “Abortion will be offered only if woman agreed to contraception or sterilization.” Women with two or more children were told that abortion would be provided only if they consented to sterilization or accepted a Copper-T IUD. Even though the abortion law does not mention such conditions, abortion was not done without acceptance to these. 

It is so unfair to see that people are ready to go above the law in order to suit their needs or make people agree to their terms, but are scare to do so when they are asked to help a woman in need/pain. The instance for the latter being as follows; several women could not visit health facilities within the 20 week period due to the controlling behaviour of the husbands for an abortion 8, and

such women were turn away because the MTPA only legalise abortions up to a 20 week limit. This was also consider as a major disadvantage of the 1971 Act which was further amend in the 2020 amendment bill. 

  1. BHATE-DEOSTHALI, PADMA, and SANGEETA REGE. “Denial of Safe Abortion to Survivors of Rape in India.” Health and Human Rights, vol. 21, no. 2, 2019, pp. 189–198. JSTOR, www.jstor.org/stable/26915388. Accessed 6 Dec. 2020.
  2. BHATE-DEOSTHALI, PADMA, and SANGEETA REGE. “Denial of Safe Abortion to Survivors of Rape in India.” Health and Human Rights, vol. 21, no. 2, 2019, pp. 189–198. JSTOR, www.jstor.org/stable/26915388. Accessed 6 Dec. 2020.

How the repealing of the 8th amendment paved the way for a flexible path to making decisions in Ireland:

Although abortion was already prohibit in Ireland under the 1861 Offences Against the Person Act, the eighth amendment went a step further to worsen the situation for the citizens of Ireland. The eighth amendment of the Constitution Act 1983 inserted a subsection that recognised the right to life of a foetus on the same lines as that of a pregnant women. Under Ireland’s Catholic-driven state ideology, a woman’s primary role was that of a wife and mother.9Due to the absolute criminalisation of abortion until the 1992 judgement, the mothers start travelling to England in order to get abortions, leading to England also being known as a “safety valve”. Since 1980, more than 170,000 people are record as having travelled to another country, primarily England, for an abortion, often at great personal sacrifice and

often through the generosity of charities like the Abortion Support Network.10

Since the 1992 judgement, the only change in the rape laws that came about was the legalisation of abortion in cases where the life of the mother stood at substantial risk. The fight for abortion had been long going which gained momentum and

attention with the death of Savita Halappanavar, a 31-year-old Indian immigrant living in Galway, Ireland. Halappanavar was pregnant with her first child. Doctors refused to intervene after she was diagnose with an incomplete mis- carriage at approximately 16 weeks of pregnancy.

Protection of Life During Pregnancy Act (PLDPA)

Hospital staff told her and her husband that they could not do anything to expedite the miscarriage because a foetal heartbeat was still present. She died of sepsis from medical mismanagement of her condition 11.  In 2013, the Irish parliament passed the Protection of Life During Pregnancy Act (PLDPA). This new law permitted abortion in an exceedingly narrow range of cases namely,

where two doctors were willing to certify that pregnancy put the life (and not health) of a woman at “real and substantial” risk, and three doctors if the risk is the prospect of suicide.12 After a long struggle 

  1. CARNEGIE, ANNA, and RACHEL ROTH. “From the Grassroots to the Oireachtas: Abortion Law Reform in the Republic of Ireland.” Health and Human Rights, vol. 21, no. 2, 2019, pp. 109–120. JSTOR, www.jstor.org/stable/26915381. Accessed 7 Dec. 2020.
  2. Ó. Ryan, “Q&A: Here’s how many women and girls travel to the UK for abortions,” The Journal (May 7, 2018). Accessed 9 Dec. 2020
  3. CARNEGIE, ANNA, and RACHEL ROTH. “From the Grassroots to the Oireachtas: Abortion Law Reform in the Republic of Ireland.” Health and Human Rights, vol. 21, no. 2, 2019, pp. 109–120. JSTOR, www.jstor.org/stable/26915381. Accessed 7 Dec. 2020.
  4. Nöthling-Slabbert, Melodie. “Current Abortion Law in Ireland: a Valuable Lesson for South Africa.” The Comparative and International Law Journal of Southern Africa, vol. 31, no. 2, 1998, pp. 174–186. JSTOR, www.jstor.org/stable/23250270. Accessed 6 Dec. 2020.

in order to relax the laws pertaining to abortion, the Ireland’s president signed the abortion bill into law on December 20, 2018. The new law of the land made abortion services free for any women in the first trimester,

that is up to 12 weeks, but after that, any abortion done would be consider criminal.

India v/s Ireland:

Even though both countries have their own laws and methods of functioning, the fight for relaxation had been tough in both countries. With the passing of the Specific Acts/Bills towards abortion, the situation of the countries had improved. Ireland, a country moved from no abortions under any circumstances to “free” abortions up to 12 weeks. Even though this step was an enormous step towards change, not many women could benefit from it. Women who do not have enough resources to travel abroad after missing the 12 week period continued to use harmful means to terminate their pregnancies.

Women with resources who missed the 12 week deadline also travelled outside to carry out the process. These shortcomings still mark the failure of the bill passed in Ireland. In both the countries, the survivors of rape were indirectly/directly force to take their pregnancy to term. The health care providers in both countries had use unfair advantage of their power in order to refuse abortion, that is, the reasons mention in page 3 for India and in Ireland, the doctors refuse abortion when the women had almost reach her 12 week period. This is so because, abortion done even one day after 12 weeks had an imprisonment of up to 14 years. 

The new law in Ireland is most likely to not work because of its rigid structure of abortion within 12 weeks. 12 weeks is just the start of a pregnancy when the stomach of the mother does not start to bulge.13 In such a situation, a women has high chances of only discovering her pregnancy after 12 weeks. But when a women can actually discover her state, the time limit for a legal abortion surpasses and thus the woman has to resort to illegal means. In Ireland, after visiting the hospital, the mother has to give a three day gap between the examination and the actual abortion,

thus, in most cases, due to this, the 12 week limit is pass. Due to these reasons, the law of abortion in Ireland is not one to prove fruitful.

  1. Valencia Higuera, “When Does Your Baby Bump Start To Show?”, 13 January 2020, Accessed 11December 2020

In India on the other hand, with the existence of so many cases of the medical professionals denying treatment to women, especially rape victims, there has only been one Supreme Court judgement out of the many thousands that exist in which the Bihar government was ask to pay compensation to a woman who was not provide abortion in time.14 Even though section 166B of the IPC criminalises the failure to treat rape victims15, there has not been any conviction of medical professionals against that. After the passing of the MTPA, abortion has governed

by the provisions of that law and it is a major setback of the Act to not mention any law such as Section 166 B of the IPC. Due to this, there will be continue denial to care which will lead to less viability of the law.

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