Abstract
Chapter 1 Introduction
2.3: Legal Issues of Abortion
One major problem related to the abortion is the sex-selective abortion. It is already discussed that it is not the problem of India alone; China too takes help of legal measures to
28 Homa Hoodfar, (1996 11 8) “Bargaining with Fundamentalism: Women and the Politics of Population
address this issue. The Chinese Government has acknowledged the problem and introduced laws to deal with it:
• Marriage law prohibits female infanticide.
• Women's Protection Law prohibits infanticide and bans discrimination against women who choose to keep female babies.
• Maternal Health Care Law forbids the use of technological advances, such as ultra- sound machines, to establish the sex of foetuses, so as not to pre-determine the fate of female infants or encourage selective abortion.
In India also in order to restrict sex-selective abortion, some act had been introduced.
To avoid the induced abortion, in 1971, the parliament of India has enacted the Medical Termination of Pregnancy Act (MTP act). It came into force from April 1st, 1972. The MTP act was again revised in 1975.29
The MTP act has certain conditions. According to these conditions, there must be certain solid reasons, behind the abortion, those reasons are given below
First, if a woman is suffering from certain serious disease, under which conditions, continuation of pregnancy could endanger her life like
• Heart diseases
• Severe Rise in blood pressure
• Uncontrolled vomiting during pregnancy
29MTP Act . (n.d.). Retrieved 9 9, 2010, from pcpndtbangalore.in: http://www.pcpndtbangalore.in/mtpact.html
• Cervical / breast cancer
• Diabetes mellitus with eye complications (retinopathy)
• Epilepsy
• Psychiatric illness
Secondly, if the continuation of pregnancy may lead to the serious problems, whether mental or physical to the new born like
• Chromosomal abnormalities
• Rubella ( German measles) viral infection to mother in first three months
• If previous children have congenital abnormalities
• Rh iso-immunisation
• Exposure of the foetus to irradiation Thirdly, if the pregnancy is result of rape
Fourthly, if the socio-economic condition of the mother or the family hampers the progress of a healthy pregnancy and the birth of a healthy child.
If a woman becomes pregnant because of the failure of contraceptive, she can terminate the pregnancy by following some consent:
If married—her own written consent. Husband consent is not requires If unmarried and above 18 years—her own written consent
If below 18 years—written consent of her guardian If mentally unstable—written consent of her guardian
Provision is made for some kind of assurance that the aborting person would be informed of all possible options that are in store, and that she should be provided medical counselling about the procedure to be followed , about its possible risks both prior to and after the abortion phase and its possible remedy.
MTP act has also specified about the kind of persons, who can conduct the MTP:
• Any qualified registered medical practitioner who has assisted in 25 MTPs
• A house surgeon who had done six months post in Obstetrics and Gynaecology
• A person who has a diploma / degree in Obstetrics and Gynaecology
• 3 years of practice in Obstetrics and Gynaecology for those doctors registered before the 971 MTP Act was passed
• 1 year of practice in Obstetrics and Gynaecology for those doctors registered on or after the date of commencement of the Act
• Whenever the pregnancy exceeds 12 weeks but is below 20 weeks opinion of two registered medical practitioners is necessary 30
It is also mentioned in this act that any institutions licensed by the Government to perform MTP can only perform this kind of timely needed safe abortion. It is also written there that the certificates issued by the Government of India should be conspicuously displayed at a place easily visible to persons visiting the place.
30 The Medical Termination of Pregnancy Act. (2013). Retrieved 1 8, 2013, from mtpsolapur.org:
http://mtpsolapur.org/mtpact.aspx
So far as the MTP act is concerned, it can be said that it appears to be very strict still it is very liberal in nature. While making this act, many socio-cultural and individual problems have been taken into consideration.
In 1994 another act, The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act had been freshly introduced. This act was made to provide for the regulation of the use of pre-natal diagnostic techniques for the purpose of detecting genetic or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex linked disorders and for the prevention of the misuse of such techniques for the purpose of pre-natal sex determination leading to female foetuses and, for matters connected there with or incidental thereto.
Whereas in some states, these act used to be followed sincerely, in many other states, these acts are there, only for the name-sake. Among the states, which follow the MTP Act and PNDT act honestly, one of the foremost names is Mizoram. So far as Mizoram is concerned two most positive things about this place is that there is not any case of sex-selective abortion and second, unqualified and quacks do not occur in Mizoram. Mizoram is a very small state and among the whole population 97% of them are tribal. Probably that is why; the craze for male child is not there in the Mizoram. Another good feature regarding this state is that it is the second literate state of India and it has different socio- cultural background in comparison to the other states of the country. One of the important points, which can be noted in the case of Mizoram is that, while the overall conditions of infrastructure in terms of standard of the procedure rooms, conditions of basic furniture, client privacy, water availability, electricity
connections etc. are good in Mizoram, the equipments, drugs and consumables needed in abortion procedure are not to the mark of expectation. The majority of the population in Mizoram is Christian. Because of their religious belief, which suggests them to support pro- life values, sometimes it becomes difficult for the trained physicians also to take the decision, whether they should handle an abortion case or not. The Christian Mizos sincerely believe that since human life has been created by God, it is to be treasured and not to be destroyed.
For them abortion is not right or it is an immoral act, as it destroys a potential human being.
Thus in Mizoram, the issue of abortion sometimes becomes a religious and moral dilemma for many doctors. Many doctors even after having the proper training of MTP, suggests the patient to think, if they have some other options except abortion. Some doctors even arrange for a safe delivery, in case of minor girls also and arrange for adoption of the child after the delivery too. So it can be seen that, though in Mizoram no sex-selective or unhygienic form of abortion is found, but there is great religious and ethical dilemma among the people of the Mizoram, including the doctors regarding the matter of abortion. This case study shows that the issue of abortion is also dependant on how one interprets one’s religious beliefs and practices it. This disparity in the implementation of the MTP act in some states lead us study the role of religious factors in abortion decision31. Another two states that follow both MTP and PNDT act are Tamil Nadu and Kerala.
31 Indrani Dutta (2005), “Abortion in Mizoram” Omeo Kumar Das Institute of Social Change & Development, Guwahati, Assam
It is seen that, whether it is the case of India, Thailand or China, or whether it is the case of sex-selective abortion or abortion due to some other reasons, what is to be valued most is the softer and nurturing feelings of love, tolerance and respect for humanity. What is needed is more awareness and academic discussion for making people educated morally or ethically.
That is how abortion is more a philosophical problem than anything else. To quote Feinberg:32
“Abortion raises subtle problems for private conscience, public policy, and constitutional law. Most of these problems are essentially philosophical, requiring a degree of clarity about basic concepts that is seldom achieved in legislative debates and letters to newspapers”.