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Abortion – Where Law Forces A Right To An Offence

Bangladesh does not recognize ‘abortion’ as a “right”. She recognizes it as an “offence” with the term “miscarriage”. Abortion indicates the intentional termination of pregnancy. Miscarriage is the spontaneous or unplanned expulsion of a fetus from the womb before it is able to survive independently. Law does not lay down any definition of miscarriage or abortion. Whether there is any distinction between ‘abortion’ or ‘miscarriage’ – leaving that issue apart and taking these two interchangeable, this article will discuss the Bangladesh perspective regarding ‘abortion’ from the legal view point while making a comparative analysis of the legal positions in USA, UK and India.

Position in Bangladesh –

Section 312 provides that whoever voluntarily causes a pregnant woman to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. If the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and also with fine. The consent of the woman or of her guardian to the causing of such miscarriage does not justify the act.

Section 313 provides that whoever causing miscarriage without women’s consent shall be punished with imprisonment for life, or for a term which may extend to ten years, and also with fine. Section 314 provides that whoever, with intent to cause the miscarriage of a pregnant woman, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and also with fine. It further provides that if the act is done without the consent of the woman, shall be punished either with imprisonment for life, or with the punishment above-mentioned. This Section goes to a far extent stating that it is not essential to this offence that the offender should know that the act is likely to cause death.

Section 315 provides punishment with imprisonment of either description for a term which may extend to ten years, or with fine, or with both for an act done with intent to prevent child being born alive or to cause it to die after birth. Section 316 states that whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and also with fine.

Under the aforesaid penal provisions, miscarriage/abortion at any stage is a punishable offence, but in reality abortion is available. It is not easy to avoid or prevent abortion in a country where rape cases are alarming, desire to have boy child is still pressing, birth rate is too high, illiteracy rate is significant, many people don’t take birth control protection, people suffers superstition regarding use of protection for sex, adolescent sex is uncontrolled, adult sex is available and State does not bear the responsibility of any child born within its territory irrespective of their parents. Amidst this situation, the illegal route to abortion causes several kinds of complex problems, such as, unsafe and dangerous abortion by the unrecognized hands, aborting the child after birth, endangering the life of woman and child, forced abortion, increasing rate of orphans and street children, suicide, social stigma and other forms of physical and mental tortures. Reports regarding abortion and throwing babies (dead/alive) are very much common in our country. There is no official report on this since State law prohibits abortion but several newspapers, NGOs and Institutes do report on abortion. The rate is increasing day by day.

While the Penal Code provides severe punishment for miscarriage, the Government regulations allow for MR (Menstrual Regulation) procedures (for miscarriage) up to 10–12 weeks after a woman’s last menstrual period (depending on the type of provider), and MRM (MR using Medication) is allowed up to nine weeks after a woman’s last menstrual period as per the Guttmacher Institute report. Menstrual regulation (MR) has been a part of Bangladesh’s national family planning program since 1979. MR is a procedure that uses manual vacuum aspiration or a combination of mifepristone and misoprostol to regulate the menstrual cycle when menstruation is absent for a short duration. These medicines are available in the market with the approval of the Directorate General of Drug Administration (DGDA), Bangladesh.

Moreso, the Constitution of the People’s Republic of Bangladesh protects the rights to life, body, privacy, liberty and freedom of choice. Giving birth to a child and accepting the motherhood (thus parenthood for both) is a vital part of life, body, privacy and liberty. But the provisions of Penal Code which comes long earlier than our Constitution are expressly violative of our fundamental rights. Whether law can impose motherhood, that is a different issue, but in civic sense law should not impose it respecting the individuals’ rights to life, liberty, freedom of choice and privacy. Because, carrying out a fetus in womb should be the deliberate decision of a woman. A fetus may come in the womb intentionally, unintentionally or forcefully. It comes intentionally when sex was consented with the clear plan for giving birth to a child. It comes unintentionally when sex was consented but fetus injected accidentally without any plan to have offspring. And the forceful is barbaric – it comes without consent. In each case, carrying out fetus and giving birth to a child substantially changes a women’s life which not only come along with her body but also with every aspects of her life including mental, social, financial, etc. It is a lifetime issue. When a baby is planned for, it feels as blessing but when the motherhood is either forced or out of rape, it becomes a curse. Motherhood should be of our choice, not compulsion, and of course not compulsion of law. But the present position of law in our country sadly shows the opposite.

Position in USA –

Abortion is legal in USA and also in most of the countries of North America. Before Jane ROE, et al. vs. Henry WADE, 410 U.S. 113 (1972) abortion was illegal in most of the States of USA since Common law had prevailed there wherein the provisions were similar to those of our Penal Code. The reasons were obvious. Both USA and Bangladesh were the British Colonies once upon a time.

However, Jane Roe, a single woman who was residing in Dallas County, Texas, instituted a federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face and an injunction restraining the defendant from enforcing the statutes. Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion ‘performed by a competent, licensed physician, under safe, clinical conditions’, – that she was unable to get a ‘legal’ abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue ‘on behalf of herself and all other women’ similarly situated.

The Supreme Court of USA by majority decision declared the said Texas statutes unconstitutional on some grounds, mainly on the ground that –

“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way and for whatever reason she alone chooses.”

Position in UK –

Under Common Law abortion was illegal. So, the British applied the same here in India sub-continent. But now abortion is legal throughout the UK like many other countries of Europe. After severe moral and political debate over this issue, the Abortion Act was passed on 27 October 1967, coming into effect on 27 April 1968 under a free vote making abortion legal all over the UK. Unfortunately, we still own the earlier laws imposed by the British who changed their law but we could not.

Position in India –

Abortion is legal in India on certain circumstances. It can be performed on various grounds until 20 weeks of pregnancy. In exceptional cases, a court may allow a termination after 24 weeks. Before 1971, it was governed under the similar provisions like us. In 1971, the Medical Termination of Pregnancy Act came into force. It allows termination of pregnancy on certain grounds, amongst others, when continuation of pregnancy is a risk to the life of a pregnant woman or could cause grave injury to her physical or mental health, when there is substantial risk that the child (if born or dead) would be seriously handicapped due to physical or mental abnormalities, when pregnancy is caused due to rape (presumed to cause grave injury to the mental health of the woman) or when pregnancy is caused due to failure of contraceptives used by a married woman or her husband (presumed to constitute grave injury to mental health of the woman, or with the declaration of court.

To conclude, it is to be mentioned that even under the ancient society abortion was valid with consent (Roe vs. Wade, 410 U.S. 113(1972)). Law should not compel someone to be mother. Law should not impose parenthood or motherhood. Even the physical relationship is consensual, it doesn’t mean that the persons involved in it must accept their parenthood if the woman catches pregnancy. The biological need of having sex is totally different from parenthood. The former comes with bodies of the persons in it but the later comes with life of another human who becomes the lifetime responsibility. Motherhood should be out of choice, free will, love and dignity. But the existing provisions of the Penal Code are flagrant violations of our fundamental rights to life, freedom, liberty and privacy as guaranteed in Constitution. The Constitution comes later than Penal Code though true, already 49 hears have been passed. It’s time to rethink. The legislature can’t devoid their duties to review laws and take effective steps for repealing/omitting the provisions of laws which are inconsistent with the Constitution. Menstruation Manual for family planning shows the practical necessity and positive intention of the policy makers in favour of abortion. Making the process legal will not only prevent the unsafe abortion but also save us from moral degradation, social stigma and unwanted pregnancy. It will ensure healthy life both for the women and children along with their families. It’s time to change the existing provisions of law on this issue recognizing it as a ‘right’ rather than as an ‘offence’. Legalizing it will help to control the situation. Unless the State takes any effective steps on this issue, it can’t deny its participation in this long on-going crime which comes with denial of the fundamental rights of women.


Writer: Dr. Syeda Nasrin

Advocate, Supreme Court of Bangladesh.

01717041929, lima_law02@yahoo.com

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