Under the penal code of 1860, induced abortion is illegal except when performed to save a woman’s life. No exceptions are made to preserve a woman’s physical or mental health, to deal with foetal impairment, for economic or social reasons. The law maker of our country should consider that a woman’s right to make reproductive choices is a clear dimension of personal liberty. Drawing attention of the authority, Nafiul Alam Shupto asked them to consider legal termination of pregnancy in terms of failed contraception to ensure the rights of a woman
In Bangladesh, termination of pregnancy or abortion is only allowed when it is performed to save a woman's life. The pregnancy can be terminated only when a medical practitioner is convinced that continuance of the pregnancy would involve direct risk to the life of the pregnant woman or of grave disruption to her physical or mental health.
To add to these conditions, when there is a substantial risk that if the child is born, it would suffer from different physical or mental abnormalities resulting into being seriously handicapped. Thus the laws of our country have not itemised the legal status of aborting pregnancy which results from failed contraception.
It is not unlikely for contraceptives to fail. If pregnancy occurs from failed contraception there is no such law in Bangladesh to recognise it legally. As mentioned above, abortion can only possible when a pregnancy endangers a woman’s life.
Now, think of a scenario where a woman becomes pregnant because of the failure of birth control methods and she decides to terminate her pregnancy but due to lack of legal interpretation, her choice of not giving birth becomes a criminal offence.
The law would take into consideration of her action if it would endanger her life but since it’s her choice so no such explanation exists. Furthermore it is observed that if a pregnancy is the result of a failed contraceptive method, it is presumed to constitute a grave injury to the woman’s mental health.
It is important to note that an abortion is only legal if it is carried out at a hospital with proper facilities or maintained by the government or a private practitioner approved by the government.
In Bangladesh, the punishment of crime is regulated by the penal code 1860. Section 312-316 of the penal code talks about the punishment of causing miscarriage, causing miscarriage without women's consent and death caused by the act done with intention to cause miscarriage.
Under the penal code of 1860, induced abortion is illegal except when performed to save a woman's life, as discussed above. No exceptions are made to preserve a woman's physical or mental health, to deal with foetal impairment, for economic or social reasons or even for rape victims.
Abortion has been a very controversial subject in many societies throughout history. These controversies are created on religious, moral, ethical, practical, and political grounds. Abortion continues to be banned in 26 countries across the globe, according to the Guttmacher Institute. Major economies such as Brazil, Mexico, Nigeria, Indonesia and the UAE are some of the countries that also do not allow abortions unless it is necessary to save the life of the pregnant woman.
Some information about the current state of different countries regarding abortion might come in handy in this stage. Guttmacher Institute collected the findings of a research which is one of the most comprehensive reports on global abortion trends. According to that report, nearly half of the estimated 56 million abortions done worldwide are unsafe leading to the deaths of 22,800 women every year.
The research also found out that the highest annual rate of abortion is in the Caribbean — estimated at 59 per 1,000 women of reproductive age. Hovering on the other side of the spectrum is Western Europe, where the rate stands lowest at 16 per 1,000 women.
Between 2000 and 2017, 33 countries — including Nepal, Uruguay, Niger and Ethiopia — eased abortion rules, the report said in London. Nicaragua was the only country to tighten its law.
The Supreme Court of India in its decision in the case of Z versus The State of Bihar and Ors (civil appeal no.10463 of 2017) clarified that there was no doubt that a woman's right to make reproductive choices was also a dimension of ‘personal liberty’ as understood under article 21 of the constitution of India. It was important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating.
The crucial consideration was that a woman's right to privacy, dignity and bodily integrity has to be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in a sexual activity or alternatively the insistence on the use of contraceptive methods.
The court also took note of termination of the pregnancy when it is the result of a rape or a failure of birth control methods since both of these eventualities have been equated with a grave injury to the mental health of a woman. The court emphasised that in all such circumstances, the consent of the pregnant woman is an essential requirement for proceeding with the termination of pregnancy.
Almost similar to the article 21 of the Indian constitution, the article 32 of the constitution of Bangladesh also talks about deprivation of life or personal liberty saves in accordance with law. Here the existing laws regarding abortion are violating the major fundamental rights of ‘personal liberty’.
Since it allows termination of pregnancy only when a woman’s life is in danger, prior to have no intention of reproduction but still have to accept pregnancy due to failed contraception clearly puts barriers to an individual’s choice. This violates an individual’s personal liberty without any question. Thus by the discretion of the authority, an individual’s personal liberty is being deprived.
However, the legislation of India has considered the termination of a pregnancy which results from failed contraception, by enacting Medical Termination of Pregnancy Act, 1971 (MTP Act).
It is high time to make changes in the penal code of 1860 which was formed during the British colonial period. It lacks legal interpretation of old laws in the modern context. It is observed by the law scientists that society changes faster than law. But our criminal law is still in the colonial mindset.
So the law maker of our country should consider that a woman’s right to make reproductive choices is a clear dimension of personal liberty. I would like to draw the attention of the authority to take into consideration the above mentioned circumstance of terminating pregnancy legally in terms of failed contraception to ensure the rights of a woman in case of contemplating reproduction as a choice.
Termination of pregnancy due to failed contraception safeguards women’s dignity. Thus the laws are needed to be altered to make abortion easier and reduce social stigma.
Nafiul Alam Shupto is a student of North South University.