CHAPTER I INTRODUCTION

Abortion is the term used for a medical termination of pregnancy before the foetus is capable of surviving independently. Abortion has always been a controversial issue, since it focuses not only on a conscious decision to not give birth, but also on womens rights and religious sentiments. In this project, the researcher shall focus on the term abortion and its social and legal implications. We will also talk about the reasons behind why abortions are carried out, and the ways in which it is exploited. Also explored in this project are the rights of the mother, legal right to stop abortion, and whether the rights of the father can be exercised. 1.1 Research Objective: To analyse the societal implications of abortion in India To examine the laws and social norms regarding abortion To study the phenomenon of female foeticide as disguised abortions To analyse whether or not the fathers consent is necessary for abortion

1.2 Research Methodology: In this paper, a doctrinal method of research has been used. 1.2.1 Data Collection The data has been collected entirely from secondary sources, such as academic literature, business reviews and articles. 1.2.2 Organisation of Data The research project has been chapterised as follows. In chapter two we shall talk about what abortion involves. We will discuss the laws regarding abortion, as they stand in India, and whether or not they work. Also, the social ramifications of abortion and how it is generally viewed by the world. In chapter three, we talk about two important issues. The first is female foeticide 1

in India, i.e., how abortion is being misused. The second is the rights of a father over abortion, and why it doesnt exist.

CHAPTER II ABORTION

2.1 DEFINITION: Abortion is the termination of a pregnancy by the removal or expulsion from the uterus of a foetus or embryo, resulting in or caused by its death. An abortion can occur spontaneously due to complications during pregnancy or can be induced, in humans and other species. In the context of human pregnancies, an abortion induced to preserve the health of the gravida (pregnant female) is termed a therapeutic abortion, while an abortion induced for any other reason is termed an elective abortion. The term abortion most commonly refers to the induced abortion of a human pregnancy, while spontaneous abortions are usually termed miscarriages. Abortion has a long history and has been induced by various methods including herbal abortifacients, the use of sharpened tools, physical trauma, and other traditional methods. Contemporary medicine utilizes medications and surgical procedures to induce abortion. A pregnancy can be intentionally aborted in many ways. The manner selected depends chiefly upon the gestational age of the embryo or foetus, which increases in size as it ages. Specific procedures may also be selected due to legality, regional availability, and doctor-patient preference. Reasons for procuring induced abortions are typically characterized as either therapeutic or elective. An abortion is medically referred to as therapeutic when it is performed to:

save the life of the pregnant woman; preserve the woman's physical or mental health terminate pregnancy that would result in a child born with a congenital Selectively reduce the number of foetuses to lessen health risks An abortion is referred to as elective when it is performed at the

disorder that would be fatal or associated with significant morbidity;

associated with multiple pregnancies.

request of the woman "for reasons other than maternal health or foetal disease."

2.2 LAW ON ABORTION IN INDIA: A pregnancy when carried to term may stretch to about forty weeks. The Medical Termination of Pregnancy Act of 1971 states that women can terminate the pregnancy up to 12 weeks by going to a registered medical practitioner. He can terminate the pregnancy only if he feels that there is a grave danger to the physical and mental well being of the mother. It can also be terminated if medical reports determine that the foetus has such a physical or mental disability that if it were born, it would be severely handicapped. Termination is also possible where the child is the result of rape, or a marriage that has been terminated (it is covered under danger to mental health). If the pregnancy is above 12 weeks in term, but below 20 weeks, the opinion of two registered practitioners is required. While India is one of the few countries that have legalised abortion, the enforcement is terrible. The facilities necessary for a risk free procedure, as well as care for the mother are missing in most places. Illegal centres with quacks instead of actual doctors take their place and put the lives of thousands of women at risk.

2.3 SOCIAL NORMS RELATED TO ABORTION: India was one of very few countries to have legalised abortion. However, when the MTP act was passed in 1971, the focus was not on giving women the power to decide, but as a means of reducing the population. As far as the world is concerned, abortion is a contested issue. Opinions vary from people who think that there should be no restrictions on abortion, to those who compare it to homicide. There are now two factions, called pro choice and pro life, for people who support and disagree with abortion, respectively. Pro-choice advocates argue whether or not to continue with a pregnancy is an inviolable personal choice, as it involves a woman's body, personal health, and future. They believe that both parents' and children's lives are better when abortions are legal, thus preventing women from going to desperate lengths to obtain illegal abortions.

More broadly, pro-choice advocates frame their beliefs in terms of individual liberty, reproductive freedom, and reproductive rights. Pro-choice individuals often do not consider themselves "pro-abortion" because they consider abortion an issue of bodily autonomy, and find forced abortion to be as legally indefensible as the outlawing of abortion. Indeed, some who are pro-choice consider themselves opposed to some or all abortions on a moral basis, but believe that abortion bans imperil women's health. Others have a practical acceptance of abortion, arguing that abortions would happen in any case but that legal abortion under medically controlled conditions is preferable to illegal back-alley abortions without proper medical supervision. Pro-life individuals generally believe that human life should be valued either from fertilization or implantation until natural death. The contemporary pro-life movement is typically, but not exclusively, associated with Christian morality (especially in the United States). Pro-life individuals generally believe that human life should be valued either from fertilization or implantation until natural death. From that viewpoint, any action which destroys an embryo or foetus kills a person. Any deliberate destruction of human life is considered ethically or morally wrong and is not considered to be mitigated by any benefits to others; as such benefits are coming at the expense of the life of a person. In some cases, this belief extends to opposing abortion of foetuses that would almost certainly expire within a short time after birth, such as anencephalic foetuses. The issue of pro life or pro choice has become politicised, with aspirants taking a stand on this before elections. The pro choice lobby may accuse others of trying to deprive a woman of the right to her own body and reproductive rights. On the other hand, pro life says that murder cannot be defended by any excuse. India follows the balanced approach, whereby it grants the right of abortion till 12 weeks, in medical cases upto 20 weeks, but after that denies abortion in order to preserve state security. This approach is a lot better than taking a step in any extreme direction. But even this doctrine has its drawbacks. In a recent case, the mother, Nitika Mehta, asked the court permission to abort the foetus, since it had been diagnosed with a heart condition. They said that the infant would die soon after birth, and they lacked the emotional, as well as economic strength to go on with the pregnancy. The court took a strict stance of this issue and denied the possibility of abortion. The case sums up all

the flaws currently prevalent in the Indian system: apathy, textbook knowledge of issues, and lack of understanding about what the family may be going through.

CHAPTER III ABORTION AND OTHER SOCIAL ISSUES

3.1 A DEATH UNSUNG: THE FEMALE FOETUS Female foeticide is a practice that involves pre-natal sex determination and a subsequent abortion if the sex of the foetus is female. Abortion had been introduced in India as a means of reducing the population. In a country where 70% of the population still lives in villages, and the entire population lives in ignorance, this became a tool to systematically kill the girl-child 1. The advent of new technology, especially sonography, proved disastrous. We now see its effect in lopsided sex ratios and a UN report which says that up to 50 million girls and women are missing from Indias population as a result of systematic gender discrimination in India. The sex ratio of 93-1000 is one of the worst in the world. But some backward states fare worse than the rest. Already there are reports of villages in Punjab and Haryana, where this practice is most common, of men having no girls to marry. Diagnostic teams with ultrasound scanners which detect the sex of a child advertise with catch lines such as: spend 600 rupees now and save 50,000 rupees later. The idea is not limited to just villages though. Its a disease most Indians have caught through their cultural and social upbringing. The government enacted the Pre- Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act in 1994, which came into force in 1996. The situation, far from improving, became worse. Even with a 728-1000 sex ratio, only one doctor has been prosecuted in Punjab in the past ten years. The reasoning is straightforward. The girl will not contribute to the household income, since she cant work.2 There will just be an extra mouth to feed. At the same time, there will be a huge expenditure on the wedding, since Hindu marriages are
1 2

Dahlburg, "Where killing baby girls 'is no big sin'," The Los Angeles Times, February 28, 1994. Malavika Karlekar, "The girl child in India: does she have any rights?," Canadian Woman Studies, March 1995.

lavish and always include dowry. Rather than suffer through such hardship and subject her daughter to the atrocities that make up the life of most Indian women, they kill the child. Also, most Indian families are obsessed with the family name. They prefer boys who will carry on the line, since girls cannot. The problem with the lower strata thus, is backwardness and illiteracy. Which necessarily brings us to the question: why is sex-selective abortion still prevalent in the upper classes of Indian society? The answer lies wholly in the mindset we have developed, that tells a woman she has no right to live. Thus, what started out as a noble attempt to reduce the population and give women the power of choice, has been reduces to a sex-selective killing procedure.

3.2

PATERNAL RIGHTS: Parenting authority Armin Brott has said: "A woman can legally deprive a

man of his right to become a parent or force him to become one against his will. Pro choice lobbyists invariably talk about the right of the mother. Her right to her own body, her emotional and mental well being. The right to decide whether or not she is ready to give birth and face all the consequences that follow. Abortion talks about only the womans rights because traditionally, only women held the role of the care giver and nurturer. So now we have laws that state that a woman does not have to take the fathers permission before getting the child aborted. While some insist upon consent in cases of married spouses, in cases of unmarried women, they have full control over their decision. As abortion became more and more common, the state assumed a measure of control in the decision. The state can now stop abortions completely in many countries, and after a particular time in others. It is done so to protect state interest and prevent the downswing in population that will follow. It is also done to appease pro life groups. Whatever the reasons, but the state still has a right in whether a baby can be born or not.

This brings us to a new issue: that of a fathers right to his child. Father figures have traditionally been few and far between. Men are seen as less emotionally available and loving towards children. Since the responsibility of bringing up the child fell to the mother, it was considered logical to give her the right to not obtain the fathers consent. With the new breed of couples who work and housekeep together, has come a call from men who want to choose. They argue that women have full control over depriving them of children, or forcibly making them a father. Philosopher George W. Harris has written that, if a man impregnates a woman with the explicit goal of having a child, in a manner that is mutually consensual, then it would be morally unacceptable for that woman to later have an abortion. 3 The courts have disagreed to give men veto power over a delicate issue. The most common reason is that abortion is not just about the foetus and life, but about the womans body, as the two are inseparable. It is true, though, that for once gender bias targets men. Today, there are paternal rights movements where men and women demand that they be given a choice in whether or not they want a child. However, countless cases in many countries over the past few years have repeatedly turned down all cases where men ask for the power to choose. A better approach would be that fathers should atleast be compulsorily informed about the abortion. While the mother holds the ultimate power, the fathers opinion, especially in married couples, or couples who were consensually having babies, should not be discounted.

Harris, G.W. (1986). Fathers and foetuses. Ethics, 96 (3), 594-603. Retrieved July 25h, 2010

CHAPTER IV CONCLUSION
Abortion is an accepted process in India regulated in a case by case basis. Just like any other process, the process established for the regulation of abortion isnt one that is without its share of flaws and these flaws need to be addressed. The researcher in this research project has illustrated the static nature of the laws in todays social scenario. The rights of the father is an unanswered issue which needs its share of due consideration in the current scenario where men are choosing to stay at home and play a greater role in the life of a child, and its upbringing, where men are coming to terms with the reality of the right of the woman to have as much of an employable life as they do and are no more confining the woman to duties of being a homemaker, but are sharing the duty in a society which is highly sensitized towards the rights of a woman. To leave all the decisions with regard to the child, most importantly, its life and the right to abort it, where the element of life is contributed in part by the man as well, seems to be a deficiency in the law that needs to be dealt with. Cases where the woman chooses to bring this being to life without the consent of the man, where the sperm of the man is obtained without consent is another prevalent social issue that needs to be dealt with. There is no scope in the law of the land to deal with a scenario where the sperm of a man is obtained by fraud, should the man still be obligated to father the child when he did not want it? When he took all the precautions, and moreover, where fraud was in play to induce the pregnancy? There needs to be a revitalisation of the law of the land to safeguard these rights since they remain essential to the institute of fatherhood in todays social scenario. Another concern is social sensitization and awareness. India is an example of a country where spreading awareness works. When the requirement of the polio drug was spread by the government, every nook and corner of the country responded to the awareness spread by taking the drop, literate or not, and today polio is down to a demographic number of 3 cases a year. The only answer to awareness in cases of rights of a child not reaching the masses is inadequate attention being given to the spread of that awareness. The problem of foeticide is far greater than polio was since this is a practice deeply rooted in the mental process of the orthodox Indian. The

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importance of the male child, the concept of vansh and the family name to be carried forward by the male need to be countered effectively to ensure that foeticide occurrence is reduced. Awareness needs to be coupled with incentives for there to be a hope to cross the barrier of orthodox thought. The common Indian family needs to be shown and brought to terms with the scope for the woman being the breadwinner of the family in todays scenario, and if that doesnt work, it needs to be made economically viable with tax rebates or some such incentive to induce sensitization. Law enforcement against those individuals who do indulge in foeticide must be done effectively to induce deterrence and accelerate sensitization. The last concern illustrated in this research project is judicial sensitization. As established in the Nikita Mehta case, there needs to be sensitization of the judiciary with regard to the problems if abortion and that come along with abortion and the social perspective on the same from the point of view of the woman to be able to adequately implement the dictates of law. If in cases where the judiciary needs to take a call on which abortion to allow, if half the bench comprised women judges and the other half men, this sensitization is likely to take place. Also constituting a special bench for cases of adoption could be called for where judges who have been made aware of the requirements of society when in to comes to discharge of the law and those who have been adequately sensitized are placed in the bench to ensure effective discharge and to prevent cases like Nikita Mehta from reoccurring. In the end, the decision to extinguish a human life is one that should be dealt with very carefully and with extreme caution. Advancement in medical science bestows great power on humanity that must be used for noble causes. Unfettered or arbitrary misuse of such power may lead to grave consequences for the society on multiple fronts. Our traditional inclination towards non-violence, tolerance and perseverance must be remembered to arrive at a decision that raises the standards of society and sets an example for others to follow.

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