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There are 77 countries across the world viz, the USA, Canada, Germany, China, Nepal, Iceland, Singapore, Netherlands, South Africa etc. which have legalized abortion. 13 countries viz, India, Japan, Fiji, Finland, Great Britain etc. permit abortion depending on the woman’s social or economic situation and taking into account the potential effects of pregnancy and childbearing. 50 countries like Bhutan, Brazil, Sri Lanka, UAE, Indonesia etc. allow abortions when a woman’s life is in danger or is a rape victim. Abortion is completely illegal in 24 countries like Egypt, Iraq, El Salvador, Laos,The Dominican Republic etc. These countries have such repressive laws that even if the pregnancy is the result of rape or incest or could endanger the life of the mother, abortion is treated as illegal.
Indian Laws are governed by Medical Termination of Pregnancy Act 1971. For permitting termination, pregnancy should not exceed 20 weeks. Even in the case of rape victims no permission is granted if the pregnancy exceeds 20 weeks. To carry out the MTP two doctors have to certify that the pregnancy is likely to cause grave risk to the life of the woman if she continues with pregnancy or cause harm to the physical or mental health of the pregnant woman or the child is likely to have a serious birth defect.
Unfortunately, the law doesn’t take into account the amount of physical pain, brutality, trauma, mental agony, helplessness, loss of dignity and self esteem suffered by the rape victims. Further, it doesn’t empathize with the child’s isolation from the society and the ostracism and the mental agony faced by the mother to bring up an unwanted child in a male dominant society. Every moment of the child’s presence will bring back the dreaded memories to the mother driving her to a state of helplessness and depression. It destroys her physical and emotional well being and inflicts extensive emotional distress to make her a “living dead’.
Under these circumstances the judgment of Kerala High Court comes as a welcome relief to all those victims who are rape victims but are carrying foetus of more than 20 weeks. The court in it’s landmark judgment said that:
“Declining permission to a rape victim to medically terminate her unwanted pregnancy would amount to forcing her with the responsibility of motherhood and denying her human right to live with dignity which forms a significant part of the right of life guaranteed under Article 21 of the Constitution.”
Further the court said “The right of a woman or a girl to make autonomous decisions about her own body and reproductive functions is at the very core of her fundamental right to equality and privacy. Reproductive rights include the right to choose whether and when to have children, the right to choose the number of children and the right to access to safe and legal abortions. The constitutional right of women to make reproductive choices as a part of personal liberty under Article 21 of the Constitution of India.” This constitutional right, the court highlighted, was firmly established by the Supreme Court in the landmark judgment in ‘K.S. Puttaswamy v. Union of India’ [(2017) 10 SCC 1].
This landmark judgment should be a trailblazer to all the future judgements and the rape victims should have an non-negotiable and an undisputed right to terminate the unwanted pregnancy even if there is no threat to the life of the victim or to the child.
The right to terminate pregnancy shouldn’t be left to the recommendations of a couple of doctors and to the judges who would decide whether the rape victim should continue with the pregnancy or not based on her health condition without considering the victim’s right to live with dignity as enshrined in the constitution. It should be the sole and exclusive right of the victim to take a decision whether or not to carry on with pregnancy.
Suitable amendments may be brought in the Bharatiya Nyaya sanhita 2023 to include the right to abortion in the case of rape victims.
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