Understanding of Right to Abortion Under Indian Constitution

12 Pages Posted: 7 Feb 2011

Date Written: January 30, 2011

Abstract

Abortion is one of the subjects that have been discussed extensively in both national and international level. It has become a controversial issue all over the world. Everybody is in dilemma whether a mother has a right to terminate her pregnancy at any time she wishes or an unborn child has a right to life.

The right to life is a very broad concept and is the most fundamental of all. In India, right to life has been recognized under Article 21 of the Constitution which says that “No person shall be deprived of his life and personal liberty except according to procedure established by law”. Person here includes both man and woman. Among various rights which are available to a woman, the right to abortion is also believed to be one of the most essential and fundamental right. Right to abortion has been recognized under right to privacy which is a part of right to personal liberty and which emanates from right to life. But the question always arises whether an unborn child should be considered as a human being and be given the status of a person or not. There are various aspects such as religious, ethics, moral and legal values that rule over the aspect of right to abortion. Abortion is severely condemned in all religions. But in spite of that always the question arises whether the mother has a right to abortion or the child has a right to life. Ronald Dworkin has made a detailed study on the issue of abortion. He did not accept the extreme position taken by the derivative claimers of prohibition of abortion that, the fetus is a complete moral person from the moment of conception. Hence the unborn has the right to live and abortion is a murder or nearly a wrong as murder.

According to Dworkin a fetus has no interest before the third trimester. A fetus cannot feel pain until late in pregnancy, because its brain is not sufficiently developed before then. The scientists have agreed that fetal brain will be sufficiently developed to feel pain from approximately the twenty sixth weeks. Thus, whether abortion is against the interest of a fetus must depend on whether the fetus itself has interests, not on whether interests will develop if no abortion takes place. Something that is not alive does not have interests. Also, just because something can develop into a person does not mean it has interests either. Once a fetus can live on its own it may have interests. This is only after the third trimester.

This paper has been divided into five chapters. Chapter II will examine Indian abortion laws. Chapter III will look at the abortion laws in America will deal with the comparative analysis and understanding of abortion. Chapter IV deals with conclusion and suggestions.

1.2 RESEARCH OBJECTIVE:

HYPOTHESIS: The hypothesis is that the mother’s right should prevail over the right of unborn.

RESEARCH QUESTION: To verify the hypothesis I adopted the following research questions:

1. Meaning of abortion and philosophical background on abortion issues. 2. Abortion laws in India. 3. Comparative study with USA. 4. Comparative analysis between India and USA.

Keywords: abortion. right of mother and unborn, comparative study between India and USA

JEL Classification: I10

Suggested Citation

Gochhayat, Sai Abhipsa, Understanding of Right to Abortion Under Indian Constitution (January 30, 2011). Available at SSRN: https://ssrn.com/abstract=1754455 or http://dx.doi.org/10.2139/ssrn.1754455

Sai Abhipsa Gochhayat (Contact Author)

NLS - NUJS ( email )

Kolkata
India

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