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(2013) PL March 80

Moral Force in the Rule of Law: Morality behind Abortion Laws and Right to
Life of Foetus — In Context of Savita's case

MORAL FORCE IN THE RULE OF LAW: MORALITY BEHIND ABORTION LAWS AND RIGHT TO
LIFE OF FOETUS — IN CONTEXT OF SAVITA'S CASE
by
Om Prakash Gautam* and Amit Kumar Pathak**
Savita Halappanavar, aged 31, went into a hospital on October 21, 2012
complaining of back pain. She was 17 weeks' pregnant at that time. The doctors who
examined her told her that she was having a miscarriage but denied her an abortion
even though she was in extreme pain, her husband has said. Halappanavar died of
septicaemia, or a blood infection, at the hospital. Abortion laws in Ireland are strict
and terminations can only be carried out in exceptional circumstances. Twenty years
ago, the Irish Supreme Court ruled that abortions are allowed when there is a real and
substantial risk to the life of the mother. But the ruling was never been enacted into
law, meaning there is little clarity for doctors or patients as to when an abortion can
and cannot take place.1
P. Ramanatha Aiyer's The Law Lexicon, defines “abortion” as, the delivery or
expulsion of the human foetus prematurely i.e. before it is yet capable of sustaining
life. The unlawful destruction

Page: 81

or the bringing forth prematurely of the human foetus before the natural time of birth.
To cause an abortion is unlawful, unless it is done in good faith for the purpose of
saving the life of the mother.2 A woman is considered to be with child as soon as she
becomes pregnant. Quickening is the name applied to peculiar sensations experienced
by a woman about the fourth or fifth month of pregnancy. As stated in Modi on Medical
Jurisprudence and Toxicology, at the first perception of “quickening” or the foetal
movement by the mother, she is said to be “quick with the child”, and occurs at any
time between 18-20 weeks.3 This term arises from the old notion that a foetus
becomes endowed with life and secures an identity apart from the mother, when the
movements are felt by the mother. However, causing miscarriage of a woman “quick
with child” is considered a much graver offence, than causing miscarriage of a woman
“with child”. So in former, the prescribed punishment is imprisonment of either
description for a term which may extend to seven years and a fine, whereas in the
latter, the prescribed punishment is imprisonment of either description for a term
which may extend to three years or with a fine or both.4

Section 312 of the Penal Code, 1860 provides:

312. Causing miscarriage.—Whoever voluntarily causes a woman with child 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; and, 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 shall also be liable to
fine.
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Explanation.—A woman who causes herself to miscarry, is within the meaning of

this section.5
Under this section, voluntarily causing a woman with the child to miscarry is an
offence if such miscarriage is not done in good faith for the purpose of saving the life
of the woman; and the offence is liable to additional punishment if the woman is quick
with child.
“Miscarriage” signifies in the strict medical sense, an expulsion of the foetus from
the womb within the first six weeks after conception.6 Medically, three distinct terms
viz. abortion, miscarriage and premature labour, are used to denote the expulsion of a
foetus at different stages of gestation. Thus a term, abortion, is used only when an
ovum is expelled within the first three months of pregnancy, before the placenta is
formed. Miscarriage is used when a foetus is expelled from the fourth to the seventh
month of gestation, before it is viable, while premature labour is the delivery of a
viable child possibly capable of being reared, before it has become fully mature.7
The Medical Termination of Pregnancy Act, 1971 (34 of 1971) legalises abortion in
certain circumstances. Section 3(2) of the Medical Termination of Pregnancy Act, 1971
provides as:
3. When pregnancies may be terminated by registered medical practitioners.—
(1)
* * *
(2) … a pregnancy may be terminated by a registered medical practitioner—
* * *
(b) where the length of the pregnancy exceeds twelve weeks but does not
exceed twenty weeks, if not less than two registered medical practitioner
are,
of opinion, formed in good faith, that—
(i) the continuance of the pregnancy would involve a risk to the life of the
pregnant woman or of grave injury to her physical or mental health;8
Section 2(d) of the Medical Termination of Pregnancy Act, 1971 defines:
“registered medical practitioner” [as] a medical practitioner who possesses any
recognised medical qualification as defined in clause (h) of Section 2 of the Indian
Medical Council Act, 1956 (102 of 1956), whose name has been entered in a State
Medical Register and who has such experience or training in gynaecology and
obstetrics as may be prescribed by rules made under this Act.9
Rule 4 of the Medical Termination of Pregnancy Rules, 2003 provides for the
experience and training of the Registered Medical Practitioner.10
The High Court of Rajasthan, while deciding the constitutional validity of Section 3
(2)(a) and (b) and Explanations I and II to Section 3 of the Act and not violative of
Article 21 of the Constitution of India decided that, Sections 312 and 315, IPC, when
read together make it clear that:
11. … the object of the Act was to make the provisions relating to termination of
pregnancy stringent and effective rather than to permit blatant termination of
pregnancy. Section 312 IPC made causing miscarriage an offence except in good
faith for the purpose of saving the life of the woman without laying down the
manner in which pregnancy could be medically terminated. Section 3 of the Act
provides the guidelines or limitation within which the pregnancy could

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be terminated.11
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Now let us consider the arguments behind Right to Life of Foetus. In Abortion
Reform Law case12 , the West German Constitutional Court laid down the following
proposition:
(1) “Everyone” in Article 2 includes an unborn being;
(2) Human life exists in embryo from the fourteenth day of the conception;
(3) It is the duty of the State to protect and promote the life of the foetus and
defend it from unlawful interference by other person;
(4) The right of development accrues in the foetus from the mother's womb and is
not complete even after birth;
(5) If the foetus was considered only as a part of the maternal organism,
termination of pregnancy would be remained entirely in the sphere of private life,
not warranting public interferences. But because the foetus is “an autonomous
human being” under the protection of the Constitution, termination of pregnancy
has a social dimension which demands public regulation;
(6) The Constitution also protects a woman's right to free development of her
personality, which includes freedom to decide against parenthood. But this right
is not guaranteed without limitations. The right of others, the constitutional
order, and the moral code all restrict it;
(7) A compromise which guarantees both protection of foetus as well as the
freedom of abortion of a pregnant woman is impossible because termination of
pregnancy always means “destruction of unborn life”. The legal order cannot,
therefore, make a woman's self-determination, the principle of its regulations. On
the other hand, protection of foetus must be given priority to the woman's right
of self-determination;
(8) The State is to effectively fulfil its duty to protect “developing life”. In
discharging this duty the State is to make a reasonable adjustment between
unborn right to life and the woman's right to her own life and health. The
unborn's right to life can lead to burdens for the woman which sharply exceed
those of a normal pregnancy. In such a case, the State may exempt the
pregnant woman from punishment for destroying the foetus where there is
necessary to protect the pregnant woman from a threat to her life or a threat of a
serious impact on her health or other cases, where the burden is extraordinary;
and
(9) The duty of the court is not to put itself in the legislator's place, but to
determine whether the legislator has fulfilled its duty to protect the “developing
life” and made a reasonable adjustment between the right of the unborn and the
right of the pregnant woman.13
In Roe v. Wade14 , the constitutional validity of the State criminal abortion
legislation was considered, which prohibited abortion except by medical advice for the
purpose of saving the mother, it was contended that woman's right to terminate the
pregnancy is absolute and that she is entitled to terminate the pregnancy for whatever
reason she chooses. The Court upheld the right to privacy, but at the same time held
that the same is not absolute and the State can interfere and regulate the freedom for
“compelling State interests”. It was held that “the childbirth endangers the lives of
some women, voluntary abortion ‘at any time and place’ regardless of medical
standards would impinge on a rightful concern of the society. The woman's health is
part of that concern as is the life of the foetus after quickening. These concerns justify
the State in treating the procedure as medical one.”15
———
*
Om Prakash Gautam, SAU/LLM/2012/016, Master of Laws (LLM), First Semester, South Asian University, New
Delhi.
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**Amit Kumar Pathak, RMLNLU LLM 2012/120102003, Master of Laws (LLM), First Semester, Dr RML National Law
University, Lucknow 226012.
1 Protesters in Ireland rally for abortion rights, Bridget Fallon, CNN, 18-11-2012,
<http://edition.cnn.com/2012/11/17/world/europe/ireland-abortion-controversy/index.html> last accessed 20-11
-2012.
2
P. Ramanatha Aiyer, The Law Lexicon (2nd Edn., 2006) 10.
3Modi on Medical Jurisprudence and Toxicology (21st Edn., 1988) 361-62; Ratanlal & Dhirajlal's The Penal Code,
1860 (32nd Edn., 2010) 1795.
4 Dr K.I. Vibhute, PSA Pillai's Criminal Law (10th Edn., 2009) 873.
5
Section 312, Penal Code, 1860.
6 P. Ramanatha Aiyer, The Law Lexicon (2nd Edn., 2006) 10.
7Malayara Seethu, In re, 1955 Cri LJ 372 (374) (Mys); Ratanlal & Dhirajlal's The Penal Code, 1860 (32nd Edn.,
2010) 1794.
8
Section 3(2), the Medical Termination of Pregnancy Act, 1971.
9 See Section 2(d), the Medical Termination of Pregnancy Act, 1971.
10 See, Rule 4, the Medical Termination of Pregnancy Rules, 2003.
11
Nand Kishore Sharma v. Union of India, AIR 2006 Raj 166, 168, para 11.
12 (1975) 39 B Verf GE.
13Abortion Reform Law case, (1975) 39 B Verf GE 1; D.D. Basu, Commentary on Constitution of India, Vol. III
Edn., 2008 3143.
14
35 L Ed 2d 147 : 410 US 113 (1973).
15Roe v. Wade, 410 US 113 (1973); D.D. Basu, Commentary on Constitution of India, Vol. III (8th Edn., 2008)
3142.
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