Abortion: Women’s Right to Choose


Human rights are the basic rights that all people have without exception, regardless of their race, gender, sexual orientation, colour, religion, language, or any other status. It covers several other rights as well, such as the right to health and the prohibition against torture.

The first legal declaration to outline the fundamental human rights to be universally protected was the Universal Declaration of Human Rights (UDHR), which was adopted by the UN General Assembly in 1948.[2]

A Recent survey conducted by World Health Organization (WHO) in 36 countries, shows that two-thirds of sexually active women discontinued taking contraception out of worry for its adverse effects. Due to this, one in every four pregnancies was unwanted.[3] Unwanted pregnancies have a negative impact on women’s physical and emotional health, including disease, abuse, stress, and anxiety.[4] Therefore, a woman’s access to safe and legal abortion is essential for her health.

According to the Committee on Economic, Social, and Cultural Rights (CESCR) and the Committee on the Elimination of Discrimination Against Women (CEDAW), women’s right to health encompasses their sexual and reproductive health. Reproductive health means the right to make an informed decisions about the body and to decide when to enter the phase of motherhood.[5] Refusing to provide women with the health care they need, such as abortion, is associated with discrimination and may amount to gender-based violence, torture, or other cruel treatment.[6] Hence, would result in violation of human rights.

Recently, the US Supreme Court in Thomas E Dobbs v. Jackson Women’s Health Organization,[7] overturned the precedent-setting Roe v. Wade[8] decision, which held that the right to privacy extends to abortion.

In a recent decision, the Supreme Court affirmed the Mississippi legislation by a vote of 6:3 and stated that “the Constitution does not provide a right to abortion.” Mississippi law prohibits abortion of a foetus after 15 weeks, which is before the viability period (begins usually at 24 weeks) It is a period where the foetus has the capabilities of surviving outside the mother’s womb. The justices believed that the constitution does not specifically address abortion and gave the unborn child’s rights precedence over the mother’s right to privacy and her right to a healthy pregnancy. The states now have the authority to determine their own abortion laws. As a result of this decision, abortion clinics have started to shut down.

In my opinion, giving powers to the states to decide whether they want to legalise or illegalise abortion will impact the poor section more. If a rich person wants to get an abortion, then they can travel to the place where it is legal but at the same time, the poor section will have to suffer between unwanted pregnancy and unsafe abortion. Hence, the decision to carry a baby should be upon the mother and not on the state.

Abortion and India

The Indian constitution provides various fundamental rights to the citizen keeping in mind the basic necessity of a respectful citizen which cannot get violated at any cost. The supreme right is the “ right to life” and it is said that the right to get an abortion is also a part of the right to life of a woman.

Abortion in India is governed by the MTP Act 1971, where termination of pregnancy can only be done in good faith, if there is a danger to the mother or the unborn child mentally or physically up to 12 weeks with the opinion of  one doctor and up to 20 weeks with the opinion of 2 doctors.  It is crucial to take note of the Indian laws governing abortion in the case of Nikita Mehta.[9] In this case, the question was whether or not the legal limit for abortion should be raised from 20 gestational weeks to 24 weeks and beyond.

The petitioner in this case was a married couple who asked for help because they were struggling financially and  their foetus was suffering from heart blockage at a later stage of pregnancy, which was causing the mother to experience mental and emotional trauma. The gestation period, in this case, had gone past the allotted time and was more than 25 weeks. The Court ruled that even if the petition had been filed more than 20 weeks ago, the Court would not have ruled in the petitioners’ favour because the legal requirements of Section 3(2)(ii) read in conjunction with Section 3(2)(b) would not have been met.[10]

As a result, the MTP Act prohibits a pregnant woman from choosing to abort her child, not even during the first trimester. As a result, “abortion on demand” does not exist. “Termination of pregnancy under the provisions of this Act is not the rule but simply an exception,” the courts have stated. Consequently, MTP Act clearly defines the circumstances in which abortion is permissible but does not make it lawful.[11]

The MTP (Medical Termination of Pregnancy) Act and the Indian Penal Code, which themselves held women liable for voluntary abortion until or unless the mother’s life is not in danger, mostly govern abortion in India.

Pregnancy can be terminated with the opinion of a single doctor if it does not exceed 12 weeks, but if the pregnancy is between 12 and 20 weeks, two doctor consultations are required. However, if the abortion is performed by a registered practitioner, it is protected by MTP.

This amendment significantly aids a woman in regaining her reproductive autonomy by making the clause apply to both married and unmarried women.

Furthermore, MTP 1971 saw a change. According to the Amendment Act, the gestational period has been extended from 12 weeks to 20 weeks, where the pregnancy may be terminated based on the advice of one registered medical practitioner, and from 20 weeks to 24 weeks, in the case of such a category of women as may be prescribed by rules made under the Act, if not less than two registered medical practitioners believe that the termination is advisable in light of the provisions of the Act. This change was made in response to medical advancements.[12]

The purpose of this amendment, which was created with the present state of the nation in mind, is to protect women from the non-voluntary burden of carrying a child that may result from contraception failure, pregnancy as a result of rape, or pressure from family members, particularly the spouse. This was created to protect the mental health of women.[13]

While a doctor must consider the mother’s health when making an abortion choice, voluntary abortion without a risky medical condition is still illegal in India.

While it is true that an unborn child has some legal protections, it is also true that the decision to carry the child into this world belongs to the mother at that point. This makes us question the law’s interpretation of a woman’s right to privacy and an unborn child’s right to life.

People in India will find alternative unlawful ways to have abortions if they are outlawed . Even though it will be damaging and risky to the mother and may even result in her death, people will nonetheless do it if they so choose. Therefore, let the mother decide whether or not she wants to keep her baby. If you force a mother to keep her baby in a situation where she doesn’t want to or where she can’t, the woman would likely abandon the child, which is riskier for the child than having an abortion.

Carrying a baby is a choice of a woman, it should not affect the mother mentally or physically and through this amendment married or unmarried women have the right to get an abortion along with some conditions. A nine-Judge Bench of the Supreme Court in 2017 held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21”, the right to privacy is now a fundamental right of the people.[14]

Respect for a women’s right to plan her family requires the government to make abortion safe and accessible to all women whether it be in India or USA. Decisions a lady makes about her reproductive capacity, lie squarely in the domain of her private decision-making, it should be her discretion only to have the child or not. Government should play no role in it.

[1] Komal Jain and Vaanya Mathur, 2nd year, Institute of law, Nirma University.

[2] UNITED NATIONS HUMAN RIGHTS, https://www.ohchr.org/ (last visited July 13, 2022).

[3] WORLD HEALTH ORGANIZATION, https://www.who.int (Last visited July 13, 2022).

[4] NATIONAL CENTER FOR BIOTECHNOLOGY INFORMATION, https://www.ncbi.nlm.nih.gov  (Last Visited July 13, 2022).

[5]INFORMATION SERIES ON SEXUAL AND REPRODUCTIVE HEALTH AND RIGHTS, https://www.ohchr.org  (last visited July 14, 2022).

[6] Id.

[7] Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization, et al. MANU/USSC/0021/2022.

[8] Roe v. Wade, 410 U.S. 113 (1973).

[9] Nikhil D. Dattar and Ors. V. Union of India (UOI) and Ors. MANU/MH/0937/2008.

[10] Id.

[11] Medical Termination of Pregnancy Act, 1971.

[12] Safe and Legal Abortion is a Woman’s Human Right, https://www.reproductiverights.org (last visited July 15, 2022).

[13] Shristi Talukdar & Jechun Palzer, Right over the womb v. Right of unborn child: A comparative study of abortion laws in India and U.S.A, 4 JOURNAL OF LEGAL STUDIES AND RESEARCH 384 (2018).

[14] INDIA CONST.art.21.

Author: komal jain,
Institute of Law, Nirma University

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