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Abortion in South Asia: Time women make their own decision

Jivesh Jha Tuesday, May 02, 2017 1557 reads

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Former US President George W. Bush’s uncontested saying goes, “I don’t believe the promises of Declaration of Independence are just for the strong, the independent and the healthy. They are for everyone, including unborn children.”

Abortion, as defined by the Oxford Dictionary of English, is the deliberate termination of a human pregnancy, as opposed to miscarriage. The high number of abortion cases, poor pre- and post-natal care and inadequate knowledge about contraceptives are downhearted stories prevalent in South Asia, but the induced abortion has been a source of controversy in the region.    

The South Asian societies are still characterized by their cultural and religious affiliations whereby personal freedoms such as consensual sex, marriage, divorce, adoption, or property rights are governed by the cultural norms and personal laws. Unlike the west, the laws here do not confer an inherent right on women to have an entire control over their body.

While acknowledging the words of Mahatma Gandhi who said, “It seems to me clear as daylight that abortion would be a crime”; the statutes of the member states of South Asian Association for Regional Cooperation (SAARC) criminalize abortion. Although legislations have ensured little say to a woman, who usually feels the burn of pregnancy and childbirth, abortion is permitted if the continuing pregnancy would put the mother’s life in real danger.

Here is something which you should know about criminalization and decriminalization of abortion in South Asian societies.  

  • Existing legal frameworks in South Asia

The laws of the South Asian region come into motion at a time when one steps to prevent ‘undesired’ additions to their family.

In this context, the ‘Muluki Ain’ (National Code) of Nepal allows voluntary abortion up to 12 weeks; up to 18 weeks if the pregnancy is caused by rape or incest; at any gestational period if pregnancy is harmful to the expecting mother’s physical or mental health, and if the fetus has deformity. The statute clarifies that the cases of abortion need to be certified by the physicians and the Code outlaws sex-selective abortion.

Under Chapter-10, the Code prescribes that a person performing an illegal abortion or the abettor to this effect is subject to imprisonment of one year, three years and five years where the fetus aborted was 12 weeks long, 25 weeks long and more than 25 weeks long, respectively. However, the Bhutanese Penal Code under Section 147 simply provisions for one year to three years of jail imprisonment (to the guilt of abortion).

Similarly, Pakistan’s legal system also does not permit one to abort unless the situation is dire. The cornerstone has been set by Section 338 of Pakistani Penal Code (PPC), 1860, which enacts that the outlier would be imprisoned for three years if abortion is caused with the consent of expecting lady in question; while the jail sentence may extend to 10 years if there was no consent of the woman.

However, the story is not the same in India.

The Medical Termination of Pregnancy (MTP) Act, 1971 is an abortion law in India. The MTP Act legislates that a pregnant woman may undergo abortion under the 20-week ceiling with an exception being Section 5 of the Act which allows abortion after 20 weeks in case if it’s “Immediately necessary to save the life of the pregnant woman.”

The Act has an overriding effect on Section 312 of Indian Penal Code (IPC), 1860, which makes voluntarily causing miscarriage an offense in two situations, namely, when a woman is ‘with child’ and ‘quick with child.’ As per the provision, three years of imprisonment is for those undergoing voluntarily abortion and seven years of jail sentence is provisioned in the case of miscarriage of quick with child. The provision is in consonance with Section 303 of the Penal Code of Sri Lanka.

Further, Section 313 of IPC provides that a person may meet the fate of life imprisonment or 10 years of a jail sentence if he is found involved in causing miscarriage without the consent of a woman. However, for the same nature of the offense, the Sri Lankan Penal Code under Section 304 stipulates 20 years of jail sentence.    

The respective provisions of Penal Codes of Sri Lanka and India further provides that if a person takes initiative to prevent a child from being born alive, he would be punished with imprisonment which may extend to 10 years.

The provisions relating to abortion scripted under IPC, 1860 is analogous to Bangladeshi Penal Code (BPC), 1860.

Likewise, the Afghani Penal Code envisages that the performance of an abortion is a criminal offense except to save the life of the mother. Section 402 provisions that a person who intentionally kills or aborts a human fetus by any means is subject to imprisonment of not more than seven years. The legislation provisions for maximum punishments to doctors, nurses or pharmacists, if found involved in performing an illegal abortion.

Surprisingly, flogging or public stoning is the punishment for abortion in Maldives.

Now, one could conclude that the laws of Nepal and Bhutan respond softly in the question of abortion while the other states of SAARC take stringent approaches to deal with it.  

      The statutes unanimously enact, the abettors and the woman submitting herself to miscarry should share the blame equally. Along with imprisonment, the statutes also make provisions for fines.

  • Exceptions:

Within the existing legal frameworks, abortion is decriminalized in South Asia for saving the life of the mother or providing her necessary treatment.

The persons who are qualified to conduct abortion are a victim of rape & incest, women whose physical or mental health are endangered by pregnancy, women facing birth of potentially handicapped or malformed child or serious fetal impairment, pregnancies in lunatic state or the likes. However, in every case, the express permission of Authority is mandatory.       

  • Why do people go for abortion?

The moral values established in the patriarchal society of South Asia have led the general population to stand by an opinion that if abortions are legalized, there will tend to be more irresponsible pregnancies. However, this is a futile claim in the age we live in.

The history is full of instances where even the educated and well-heeled couples are seen resorting for female foeticide.

According to a data of UNICEF, Afghani women have approximately six children over the course of their lives and above all boys are desired. The study provides that 79 percent of the women in Afghanistan don’t use birth control measures, while abortion is only the form of birth control they know.

 The Islamic states of Maldives and Pakistan also share a similar story as miscarriage is considered as a ‘sin’ in Sharia Law.

  • Way-out:

Turning the girl child from an economic burden into an asset could be the most effective way to tackle this problem and it would surely end discrimination on the basis of sex.

On the contrary, the South Asian states should endorse a law that could allow persons with pre-marital teenage pregnancy, with the young girl at the clemency of social stigma, or rape survivor, who has been unluckily loaded with child, to lose their fetus without any hassle.

Above all this, it's high time to acknowledge the words of George Carlin, a famous American stand-up comedian, and philosopher, who has rightly said, “How come when it's us, it's an abortion, and when it’s a chicken, it's an omelet?” 

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