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21.03.2011 (425 Days Ago)
I am a Supreme Court Advocate
When the Abortion Bill came before the House of Lords, much attention was given to this question. The adjectives "serious," "grave" and "substantial" were considered, but their lordships finally adopted Lord Parker CJ's suggestion (moved in his absence by Lord Dilhorne, a strong opponent of relaxing the law), which now appears in the Act. The risk of injury feared from allowing the pregnancy to continue must be "greater than if the pregnancy were terminated." Lord Parker said of llis amendment that the doctor's decision was to be arrived at by comparing one risk with another, and only if the risk in continuation were greater than the risk in termination would a defence be created under the Act. If that was the test, he said, it would be unnecessary and wrong to talk about risk as being "serious" or "substantial."
In making this move some of the opponents of freer abortion were perhaps misled by propaganda emanating from their own side. It had been widely argued, against the practice of abortion, that it was a dangerous operation, and on this supposition the formula was a restrictive one. Even so, the formula was a doubtful advantage for the restrictionists, because no one knew how long it might be before the danger of the operation was reduced, thus extending its legality. But in any case the assumption that the operation was particularly dangerous was wrong even in 1967, at least in cases where the termination was performed early enough. Figures from Eastern Europe indicated that the operation, properly performed within the first trimester (the first three months of pregnancy), was much safer (at least from the point of view of mortality) than normal childbirth. This has also been found in England, and experience in performing the operation has steadily increased its safety. There are, of course, other risks associated with medical termination of pregnancy besides death, just as there are other risks associated with childbirth.
The wording of the Act, then, suggests the argument that first-trimester abortions are now left to medical discretion in the sense that if the doctor comes to the conclusion that, as the figures firmly show, the general mortality risk of a first-trimester abortion is less than maternal mortality, and if he further believes2 that the morbidity risk does not affect the general conclusion that abortion is safer, 3 and that there is nothing in his patient's condition to affect the application of the statistical argument to her case, he is entitled to terminate an early pregnancy without finding a more specific ground for termination. Although this argument has not been ventilated in court, and would doubtless be regarded with extreme reserve by the judges, there is no logical answer to it. The risks associated with normal maternity must be among the risks resulting from a decision not to terminate, so that they can enter into a calculation of the risks that are "greater than if the pregnancy were terminated"; and if these risks by themselves are greater than the risks of termination, no other question need logically be asked.
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498A_harassed-father wrote 211 Days Ago (neutral) 0Sir,
I suddenly came across about abortion as per Indian law and could understand a bit after going through the whole as above by you. Rather it made me quite panic since my spouse trapped me in DV Act, 2005 and 498a after receiving my divorce petition and today I can understand why she had incorporated abortion allegation in her DV complaint.
I have two minor daughters. The gap between my second daughter was, incidentially, about 10 months (which now i feel was well planned to get me trapped after reading the Act above). My wife is herself a nurse whereas me in clerical line.
Can I be convicted by the court as she said that I forced her to get the second baby abort since being a girl child? The fact is I never came to know at any point of time before my wife's delivery what was the sex of my child!! She hatched a story that some Pandit had predicted before me that my wife will give birth to a female child and as a result i forced my wife to get the baby abort whereas Sir, I deeply and sincerely took care of my wife throughout her pregnancy and she had a safe delivery and till date I love both of my daughters and they are with me whereas their mother had deserted the kids around 4 yrs back.
How can I defend myself if she says that I forcibly made her pregnant and burdened her with pregnancy and forced her to deliver the child and bear the pregnancy? Because as a layman I could understand after going through the Abortion law as above its a crime and imprisonment is sure.
Kindly guide me whether any crime will be made against me?
Regards0 points
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mytarun wrote 425 Days Ago (neutral) 0Can the doctor take account of a risk to the health of the woman arising not during the pregnancy but as a consequence of her having to rear the child, if it is born ?
The words of the Act suggest answers both ways.
The Act refers to "risk of injury to the health of the pregnant woman." and one may argue that when the child has been born the woman is no-longer pregnant. Moreover, it must be "the continuance of the pregnancy" that produces this risk. and it is perhaps slightly strange though not impossible, to say that the burden on a mother of having to rear a child was a result of continuance of the pregnancy,
On the other hand there are two clues in the Act making it reasonably clear that the wider meaning was intended by Parliament.
1. The words just quoted are used with regards to both the health of the woman and the health of existing children of her family. If one pays regard to the health of existing children, ;: the Act allows, it would be illogical to do this only during the time of gestation of the ne' addition to the family. What was evidently intended was that existing children might be adversely affected by the extra child being born and having to be brought up by an already overburdened mother.
2 Subsection (2) provides that "account may be taken of the pregnant woman's actual ( reasonably foreseeable environment." This is not, as has sometimes been thought, a purely "social" ground for termination, since it is related to the question of health. It does not allow the operation merely because the patient will otherwise lose her job or her husband Still, the statutory words make it clear that the question of health is to be considered broadly. There is not much point in directing the doctor to look ahead to the woman future environment if he is to consider only the time of pregnancy. So it is really quite clear, that the Act is intended to provide for the case of the overburdened mother.0 points -
mytarun wrote 425 Days Ago (neutral) 0Can the doctor act at a very early stage, before it has been estabUshed whether the woman is pregnant?
No reason why not: the doctor may acton the ground that if the woman is pregnant it will be bad for the pregnancy to continue.
The point is important because of the practice of menstrual aspiration at an early date when the diagnosis of pregnancy may be uncertain. It may of course be argued, against the legality of operating, that the Abortion Act validates the proceeding only if the woman is in fact pregnant, because it supposes that "a pregnancy is terminated." But this would overlook the question of the mens rea required for an offence under section 58. Because of this consideration, the Law Officers of the Crown expressed the opinion in 1979 that menstrual aspiration is lawful.
Although the section makes it an offence to use means to procure the miscarriage of a woman who is not in fact with child, it obviously supposes that the defendant believed that the woman was or might be with child. Now the attitude of the doctor in the case we are considering is this. If the woman is with child, then what he does will result in an abortion, and it will be lawful under the Abortion Act. If the woman is not with child, then there will be no abortion. Either there will be no abortion, or it will be a lawful abortion. The doctor's intention being not to procure any abortion except a lawful abortion, it cannot reasonably be argued that an offence is committed.0 points -
mytarun wrote 425 Days Ago (neutral) 0But that would mean that we have abortion on demand, which Parliament never intended. So the Act ought not to be interpreted in that way.
Some would say so. The opposing view is that Parliament consciously settled for a certain test for the legality of abortion; that test is acceptable to very many people, and the courts should apply it according to its wording. It is not for the courts to speculate whether Parliament made some mistake of fact, and how it would have worded- the Act if it had not ma4e that mistake.
Some doctors (including hospital doctors) accept the above argument and assume that the Act enables them to terminate on the ground of hardship and distress, provided that they act early enough. Others, however, who disapprove of abortion, construe the Act restrictively; so that a great variation of practice is found between hospitals in different parts of the country.
The argument that abortion is safer than childbirth (or may be held so to be by the particular doctor) applies to vaginal terminations performed in the first two or three months of pregnancy, when the operation is done without incision, by curettage of the womb or by the vacuum aspiration method. Ideally it should be performed within si.x weeks of pregnancy. Mortality and morbidity begin to increase after the second month, and are particularly associated with termination by hysterotomy. Even the higher risk of a late termination can be medically justified in appropriate cases, but obviously it requires more serious grounds than does an early termination.
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