Legal Regulation of Abortion Conflict of Rights

Legal Regulation of Abortion: Conflict of Rights


Legal regulation of abortion remains highly contested even today. In the United States of America, 27 abortion bans have been enacted across 12 states in 2019, with Alabama having only one exception being ‘where the woman’s health is at risk’. This has steered mass protests in the nation where the population remains divided between contradicting ideologies. The Washington Post claims that in a poll study 59% of Americans are pro-abortion with no exceptions under any circumstance, where 11% completely oppose the idea demanding abortion to be illegal under any situation.Undoubtedly, abortion is one of the major political fault-line for the upcoming 2020 U.S. elections. Meanwhile, in India the Union Cabinet has approved the Medical Termination of Pregnancy Bill, 2020 on 29th January, 2020 which will now be presented before the Parliament for its approval. This amendment bill liberalizes abortion rules and is the urgent need of the hour for a country where 15.6 million abortions are carried out each year as opposed to a government statistic of 0.7 million; a study conducted jointly by researchers at the International Institute for Population Sciences (IIPS), Mumbai; the Population Council, New Delhi; and the New York–based Guttmacher Institute in 2017. The government is yet to modernize the existing medical infrastructure providing a safe environment for abortion; which in many ways falls short of the minimum core as required under the ICESCR (International Covenant on Economic, Social and Cultural Rights).Likewise, in South Africa, where abortion is also legal up to 12 weeks,safe access and shortage of abortion clinics remains a challenge till date and pregnant women have to resort to illegal backstreet abortions. The National Health Department records that approximately one-fourth of maternal deaths is a result of such illegal abortions.

In May 2018, Ireland’s exceptional and staunch attitude towards upholding criminalization for abortion was defeated by a public referendum, repealing the eighth amendment to pave way for the Health (Regulation of Termination of Pregnancy) Act, 2018. But the ideological battel is far from over, as anti-abortion protestors continue to abuse users hampering their access to medical institutions; which has now led to a demand of protest free zones outside identified medical facilities and abortion centers.

Recently, South Korea’s Supreme Court overturned the ban on abortion in April, 2019; whereas New Zealand is underway to pass the Abortion Legalization Bill, 2019 decriminalizing abortion. In 2018, Argentina’sVoluntarily Termination of Pregnancy Bill introduced to legalize abortion succeeded in the House of Deputies but failed to be passed in the Senate. According to the World Abortion Policies Report, 2013 by the Department of Economic and Social Affairs (United Nations)only 30% of participatory nations and 42% of women population in all participatory nations combined have access to abortion on request within a minimum of 12 weeks from pregnancy. Amidst such controversy, when we question abortion rights and its regulation, the dialog is caught up as to where do we draw the line? And who gets to draw the line?

The world scenario leads us to many questions and an effort is made to conceptualize them. As Sandra Fredman suggests, whether the right is a stand-alone right or is distributed subject between right to life, privacy, equality and reproductive freedom? Further it is argued, if the foetus is accorded personhood it would lead to a direct clash of right to life between the freedom of choice of the mother to that of the unborn child. Different answers to the options posed above would lead to various possible outcomes of the understanding of abortion rights.

The first question that needs to be addressed is that does legal consideration of regulation of abortion evoke the question of human rights? There is no debate that a woman as an individual has human rights which is deemed to be protected by the State, the controversy begins when the right of the woman starts to coincide, conflict, overlap or interfere with the new forming domain of rights of a new human being, if so. The solution would be in the answer as to at what stage do we start recognizing the other as a human being; after conception, end of respective trimesters or after birth? Taking Irish Constitution as a starting point where it expressly recognizes the right to life of the unborn as amended in 1983. In words of de Londras the interpretation of the right to life of the unborn by the Irish Supreme Court completely diminishes the rights of a child bearing woman. Likewise, the German Federal Constitutional Court recognizes that inherently the unborn has a right to life as a basic understanding of human rights. In contrast, other jurisdiction like the United States of America, Canada, Australia and South Africa concluded that legal statutes do not specifically recognize the right of the unborn, hence human rights shall not be extended onto them.

The underlying question remains as to when and if the foetus be recognized as a person so that human rights can be accorded to it, which is not a legal question but a biological one. The biological approach is better suggested than a moral one as morality can only exist when a responsive sentient being comes into existence. The foetus starts responding approximately after the first trimester, thus allowing the State to defend and regulate the rights of the unborn. Thus, until the foetus builds its own responsive ability, being capable of acquiring an identity, the woman has the right to abort at any prior stage. In balancing the human right approach of the woman to that of the unborn child; it can be stated that a woman has absolute freedom to decide to organize her body to give birth or not. The right of the woman changes its nature when it comes in conflict with the newly established right of another human being; over which the State has a right to defend and regulate. It is not to state that the woman has no right to abortion post 12 weeks, but the unborn child’s rights require the right of abortion to be conditional, so that rights of both individuals can co-exist. The conditions can range from acute mental and physical stress to the woman to criminal issues of rape and incest. The newly established human right starts functioning parallel to that of the woman and the right to abortion as a human right remains unconditional until the first 12 weeks of pregnancy. This is one way to understand the interaction of human rights, considering that the woman and the unborn child have two separate rights, contradicting each other.

Legislature has viewed rights in similar manner and has failed to recognize the right of the unborn. In most jurisdiction, cases have been decided on the grounds of applicable legislation and its interpretation, hence the question of legal regulation stays with the legislature; where the debate of other rights comes into play. This feature can be observed in the judgments of Roe v Wade by the US Supreme Court, Paton v British Pregnancy Advisory Service Trustees by the UK High Court, and Attorney General (Qld) (Ex rel Kerr) v T by the Australian High Court. Alternatively, as discussed, the Irish and the Germans have recognized rights of the unborn allowing it to compete with that of the pregnant woman. The possible contemporary solution is discussed under the heading of the next question.

The second question is how legal regulations can ensure a balance between the right of the pregnant woman to that of the unborn child? The observation of human rights is an obligation of the State and hence it is incumbent upon the State to design policies that easily integrate with the needs of the society that it serves, at the same time ensure protection of individual human rights. Reasoned legislations and well-designed policies will further serve as a proper guiding tool to the judiciary, ensuring equal protection of human rights between the pregnant woman and the unborn child. To create the right balance, it is essential to identify the issues and problems associated with both keeping the pregnancy and abortion; localised as well as internationally. The first is clash of ideologies on religious or moral tenets which in-turn is a debate as to when life starts to exist. For this, we have already concluded that a biological and scientific approach will be a rational stand-point to consider that a foetus starts to develop a biological identity at the end of the first trimester, that is 12 weeks. The pregnant woman deserves to enjoy absolute immunity from State induced regulation until the said time period expires. Further, this time period is justifiable on the ground that the pregnant woman had a reasonable and qualified time to decide the fate of her pregnancy.

The second issue is clashing and conflicting rights. After the expiry of such period, it is arguable that the woman deems to have voluntarily endorsed upon herself the duty to protect her pregnancy. The right to life and health of the woman, which is an individual right, now has two parts to it and are not two individual rights, one of the pregnant women and other of the unborn child. If the right is understood to be a coin, the same coin (right) has two faces to it. The rights are so deeply interconnected that it has to be viewed as one. The conflict and contradiction are to be seen as a duty the human right imposes on the pregnant woman.Thus, the human right of the woman and that of the child is one human right until the individual (child) is detached from its mother. Conceptualizing of the human right in this fashion will enable legislatures to draft a balanced legal regulation of abortion. Based upon the above context, a woman maybe conditionally allowed to terminate her pregnancy, such as in cases of acute mental or physical distress to her or the foetus, rape, incest and likewise; which may involve reasonable interference of a medical practitioner or counsellor. Despite preferring a legislation having an exhaustible list of conditions; the statute must allow the pregnant woman to approach the court of law for termination of pregnancy beyond such conditions and period of 12 weeks, where the courts must have the liberty to decide her plea in accordance with equity and libertarian justice. This balanced approach, will not only ensure functioning human rights but will further counter issues relating to unsafe and backstreet abortions; ensuring right to life as a whole.

Induced abortion has been an ancient practice, where abortion procedures and techniques can be first traced in medical texts from China during the period of Emperor Shen Nung (2737-2696 BCE).In the history of mankind and regulation, abortion seems to be initiallyrooted and regulated through religious and moral tenets as self-practiced within the social realms of respective societies, with bare-minimum or no interference from a State like entity or authority. The theme of abortion was governed by societal norms, being neither a legal or human right, explicitly. Over centuries until the contemporary times religious autonomies had dominance over the subject-matter of abortion, with majority oppressing and restricting the choice to abort. Today, we continue to question the right to abortion and debate on conflicting rights; but the ideal solution is to not detach the right of the unborn from its source until the actual physical partition is not achieved. This will allow us to reach a common consensus on the regulation of abortion rights



Devaang Savla (BCL 2019-2020)
Oxford University


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