Abortion – offence or a right?

Bangladesh does not recognise 'abortion' as a right rather considers the same as an offence under the garb of the term 'miscarriage'. Abortion indicates the intentional termination of pregnancy whereas miscarriage is the spontaneous or unplanned expulsion of a fetus from the womb.  Keeping the distinction between 'abortion' and 'miscarriage' aside, this article discusses the legal landscape of Bangladesh regarding 'abortion' with a comparative analysis of USA, UK and India.

Section 312 of the Penal Code, 1860 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 for a term which may extend to three years, or with fine, or both. If the woman be quick with child, shall be punished with imprisonment 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. Sections 314, 315 and 316 provide some additional provisions for severe punishment for committing offences relating to miscarriage.

In a country like Bangladesh, where the number of rape cases is alarmingly high, desire to have male issues is still pressing, birth rate is high, illiteracy rate is pessimistic, and the State does not bear the responsibility of any child born within its territory, abortion cannot but be a frequent phenomenon. The illegal route to abortion results in several kinds of complex problems including unsafe abortion endangering the life of woman and child, suicide, social stigma and other forms of physical and mental torture for the women.

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.

The Constitution of Bangladesh protects the rights to life, body, privacy, and liberty. It is submitted that giving birth to a child and accepting motherhood is a vital part of the right to life and liberty. But the provisions of Penal Code which is a colonial holdover, are expressly violative of our Constitution. Law cannot impose motherhood or parenthood respecting the individuals' rights to life, liberty, and privacy. Because, carrying out a fetus in womb should be the deliberate decision of a woman- regardless of whether the fetus come in the womb intentionally, unintentionally or forcefully. Motherhood should be a choice – out of free will, not compulsion.

Abortion is legal in USA and also in most of the countries of North America. Before Roe v. Wade (1972) abortion was illegal in most of the States of USA since Common law had prevailed there wherein the injunctions were similar to those of our Penal Code. In Roe v. Wade, the Supreme Court of USA by majority decision declared the statutes in question regarding abortion unconstitutional, mainly on the grounds of woman's right to privacy, absolute right to her body and her absolute entitlement to terminate her pregnancy at whatever time, in whatever way and for whatever reason she chooses.

Under English Common Law, abortion was illegal. Therefore, the British applied the same in Indian 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, 1968 was passed making abortion legal all over the UK. Unfortunately, the colonial relics are still present in our legal realm while the colonisers have changed their laws.

Abortion is legal in India in certain circumstances. It can be performed on various grounds till 20 weeks of pregnancy. In exceptional cases, a court may allow a termination after 24 weeks. In 1971, the Medical Termination of Pregnancy Act came into force allowing for 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 and others.

Menstruation Manual for family planning in Bangladesh 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 women from social stigma and unwanted pregnancy. It will ensure a healthy life both for the women and children along with their families. It is high time the existing provisions of law on this issue recognised it as a 'right' rather than as an 'offence'.

The writer is an Advocate, Supreme Court of Bangladesh.