Mission Abort

An Overview of the Reproductive Rights of Women Across the Globe

Over the centuries, women have always been seen as inferior beings in most cultures around the world. They were largely confined to their homes and barely had any substantial rights. After several movements and protests during the last few decades, the overall situation of women in today’s world has greatly improved, but gender inequality is still clearly visible. Over the decades, women have fought to get basic human rights for themselves, and yet some of the basic rights that women are still fighting for are reproductive rights. Reproductive rights not only include a woman’s right to get an abortion but also include free access to reproductive healthcare pre and post maternity. Most countries and religions today are largely based on patriarchal beliefs and condemn abortion.

The Center for Reproductive Rights[1] classifies countries into five categories based on the legality of abortion in these countries. The first category consists of countries where abortion is prohibited altogether by law, the laws in these countries do not permit abortion under any circumstances, including when the woman’s life or health is at risk. 26 countries across the globe fall within this category. Some countries which fall under this category include Iraq, the Philippines, Egypt, Madagascar, and Mauritania. 90 million women (5%) of reproductive age live in countries that prohibit abortion altogether. The second category includes countries where abortion is permitted to save a woman’s life, the laws of these countries permit abortion only when the woman’s life is at risk. 39 countries fall within this category. Some countries that fall within this category include Afghanistan, Indonesia, Myanmar, Iran, Brazil, Chile, and Mexico. 359 million (22%) women of reproductive age live in the countries that fall under this category. The third category includes countries that permit abortion to preserve health, the laws of these countries permit abortion on the basis of health or therapeutic grounds. 56 countries fall within this category, 25 of these countries explicitly permit abortion to preserve a woman’s mental health. A few countries which fall under this category include Poland, Pakistan, Thailand, Saudi Arabia, Jordan, Peru, Columbia, Ecuador, and Bolivia. 237 million (14%) women of reproductive age live in the countries that fall under this category. The fourth category includes countries that permit abortion on broad social or economic grounds, the laws in these countries are mostly interpreted liberally to permit abortion under a broad range of circumstances, these countries often consider a woman’s actual or reasonably foreseeable environment and her social or economic circumstances in considering the potential impact of pregnancy and childbearing. 14 countries fall under this category, these include India, Japan, Ethiopia, Rwanda, Zambia, Great Britain, and Finland. 386 million (23%) women of reproductive age live in the countries which fall under this category. The fifth and final category comprises of those countries which permit abortion on request (Gestational Limits Vary), the most common gestational limit for countries in this category is 12 weeks. 67 countries fall in this category, the countries that fall in this category include the USA, Canada, Greenland, Cuba, Guyana, Spain, France, Turkey, Russia, China, Nepal, Vietnam, and Australia. 590 million (36%) women of reproductive age live in countries that fall in this category.

RECENT DEVELOPMENTS ACROSS THE GLOBE

  • South Korea

On 11th April 2019, the Constitutional Court[2] ruled that the ban on abortion was unconstitutional and that the lawmakers should alter the legislation by 31st December 2020. Seven out of nine Judges ruled that banning abortion was unconstitutional and six votes were necessary to lift the ban. Prior to this, women who had had abortions in South Korea could face up to one year in prison and a fine of up to two million won (1,780 USD), and the doctors or healthcare workers who aided such illegal abortions could be put in jail for up to two years. Prosecutions for the said abortions were rare but did happen. 75% of women aged 15-44 considered the law unfair according to a survey by the Korea Institute for Health and Social Affairs, about 20% of the respondents revealed that they had an abortion even though it was illegal. Abortion was criminalized in South Korea in 1953, exemptions were granted in cases involving rape, incest, and genetic disability. As the years passed, the law appeared to contradict other government policies, social norms, and technological advances. For example, during the early 60s, the government launched a campaign to reduce the number of children per household in an effort to control the size of the population. Traditionally, South Korean couples preferred a male heir and hence would keep having children till they had a male child. The new policy along with the ban on abortion left them with no other alternative. This subsequently, led to the rise of the illegal abortion industry, and many practitioners who carried out these illegal abortions were not trained and qualified enough to carry out such procedures.

The South Korean government[3] announced a new proposal, under which, abortion would be banned after 14 weeks except in the case of a sex crime, if the mother’s health is at risk, or if the fetus displays signs of severe birth defects; in these cases abortion could be allowed for up to 24 weeks. The use of the drug mifepristone was allowed for performing abortions. However, this proposal drew sharp criticism from both sides. The women’s rights group argued that the law still focused on punishing women rather than focusing on how to safely provide access to this procedure. The Catholic Bishops’ Conference of Korea issued a statement saying that all children must be protected “from the very moment of conception”. However, the proposal still remains to be voted on and implemented.

2.Kenya

On 12th June 2019[4], the High Court of Kenya ruled that abortion would remain illegal. A five-judge bench ruled out this judgement. The Kenyan High Court had ruled that abortion would continue to remain illegal in the country but will only be permissible if the mother’s life is at risk. The court also ruled that safe abortion which is procured within the confines of law can be done by permitted medical health practitioners. The ruling judge, George Odunga J., elucidated in regards how mother’s health be defined, said that the court will rely upon medical descriptions that state it is the social, mental, and physical state. Hence, abortion is permitted where the health of a mother is at risk as determined by a trained medical practitioner. He further added that the courts will rely upon the Health Act to describe who is a trained medical practitioner.

3. Poland

On 22nd October 2020[5], the Constitutional Tribunal, consisting mainly of judges appointed by the ruling party, declared the law authorizing abortions for malformed fetuses to be unconstitutional, effectively banning most of the small number of legal abortions that were carried out in the country. The 1993 law that allowed abortion in cases of severe and irreversible fetal abnormalities was ruled unconstitutional. After this ruling was passed, the government stalled for a while to bring this ban into effect due to the widespread protests that were happening across the nation. But soon the government announced that the near-total abortion ban will be enforced from 27th January 2020. After this, abortions will only be permitted in cases of rape, incest, or when the mother’s life is at risk due to the pregnancy.

Poland already had some of Europe’s strictest abortion laws, about 1,000 legal terminations are performed in Poland each year, around 2,00,000 women have abortions illegally or go abroad for the procedure. Poland’s conservative government has strong relations with the country’s powerful Catholic Church. The court justifies its ruling on the grounds that ‘an unborn child is a human being’ and therefore it deserves protection under Poland’s constitution which ensures the right to life. People who support this ban often say that the judgement is a great step towards the realization of human rights of all human beings and that there would be no discrimination against children who were sick and disabled. People who oppose this ban condemn this judgment as it denies women the basic right to choose what is right for themselves. However, this ban is stiff in effect.

4. India

The discussion[6] on the need for an abortion law in India started in the 60s. The government set up the Shantilal Shah Committee to evaluate whether it was necessary to have an abortion law. During that time, abortions were strictly illegal under Section 312 of the IPC, and ‘causing miscarriage’ of a woman was a crime punishable with imprisonment up to three years and/or a fine. The Committee analyzed the legal, medical and socio-cultural aspects of abortion and recommended the legalization of abortion and a law on comprehensive abortion care. These recommendations eventually led to the passing of the MTP Act, 1971, which only allows for medical termination of pregnancies. However, even after the MTP Act was introduced it did not nullify the penal provisions, ‘causing miscarriages’ still is penalized and the punishment remains the same. The MTP act doesn’t use the word abortion and instead chose the phrase ‘medical termination of pregnancy’, this is because the term is aimed to ensure that the abortion laws in the country aren’t framed to grant a choice to women to undergo safe abortions, but rather provides procedures to protect doctors against prosecution for conducting abortions. In contrast to the proposal of the Shantilal Shah Committee for a comprehensive abortion care for women, the MTP Act only has a few protections for women and more provisions for the protection of doctors conducting medical terminations. Section 3 of the MTP gives doctors the power to decide whether a woman should have an abortion or not and the woman has no autonomy.

Even after landmark cases such as Suchita Srivastava v. Chandigarh Admin[7] and Devika Biswas v. Union of India[8], the Supreme Court held a woman’s reproductive autonomy to be part of her fundamental right to privacy, and has said that the decision to have a child or not shall be hers alone, free from any state intervention. However, there are no changes in the MTP to give effect to these judgements.

The Medical Termination of Pregnancy (Amendment) Bill, 2020, proposes to increase the upper limit in applying for abortions to 24 weeks, but there are no provisions in this amendment that address the issue of granting autonomy to women to make decisions about their bodies. The bill was passed in Lok Sabha but the Rajya Sabha has not approved the bill yet.

CONCLUSION

In conclusion, women should have complete autonomy over their bodies. Women should not only have the right to abortion but also a comprehensive set of reproductive rights including access to reproductive healthcare for free or at subsidized rates, pre and post maternal care, comprehensive reproductive counseling, and laws that help pregnant women working in organizations. No one’s opinion on a woman’s choice to have an abortion should matter apart from hers. 24 weeks is an ideal time period after which abortion should be discouraged as the fetus begins to develop human consciousness at this point and hence has the fundamental right to life. At this stage, an abortion would also compromise the health of the mother. Laws made for protecting the reproductive rights of women must primarily focus on the woman’s free will and health, and be free of all social and religious prejudices. All the rights that women enjoy today are something that women couldn’t even imagine a century ago, but still, it is evident that we have a long way to go.

REFERENCES



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Kirit P. Mehta School of Law Publications