22 Safe Abortion as a Woman’s Human Right

Suchitra Dalvie

After this one hour chapter, participants should be able to:

• Understand the consequences of unsafe abortion on women’s health
• Analyse women’s right to health as a human right
• Recognize criminalisation of abortion as a violation of many human rights of women

Introduction and Background:

Unsafe abortion leads to 13% of deaths among women and young girls each year worldwide. “Thus, somewhere in the world, a woman dies every 8 minutes because of unsafe abortion.” This is an average and in some parts of India as many as 50% of all maternal deaths are due to unsafe abortions. A study done by Ipas in 2007 in Jharkhand found that 20% of the reported abortions were carried out at home through unsafe methods, of which 51% women had post-abortion complications.

Every year, globally, 21.6 million women and girls experience an unsafe abortion while seeking to terminate an unwanted pregnancy. These are enormous numbers and a serious public health concern as well as a gender and human rights issue.

An unwanted pregnancy may result from contraceptive failure, or failure to use contraception correctly, or at all (unprotected sex). Often the women do not want more children, but appropriate contraceptive methods are either unknown or unavailable to them. Moreover, all contraceptive methods have a failure rate, and therefore access to safe abortion is always needed even in societies with 100% contraceptive prevalence rate.

Country laws vary across the world about the extent to which the access to safe abortions is allowed. Many countries in Asia, including India, have inherited their laws from the colonial rulers.

The Indian Penal Code is almost identical to the earlier British Penal Code. The British law in their own country has now undergone many amendments, but the Indian Penal Code Section 312 still criminalises abortion, specifying punishments for the provider as well as the woman.

The Medical Termination of Pregnancy Act (1971) is an Act of Parliament which allows a termination of pregnancy to be carried out under certain conditions, by a qualified person in an approved location. The law is liberal in its intent and allows a pregnancy termination under a wide range of conditions:

“3. When pregnancies may be terminated by registered medical practitioners:

(2)Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner, –

(a) Where the length of the pregnancy does not exceed twelve weeks, or

(b) Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioner is, of opinion, formed in good faith, that –

• The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
• There is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped.

Explanation 1 – Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2 – Where any pregnancy occurs as a result of the failure of any device or method used by any married woman or her husband to limit the number of children, the anguish caused by such unwanted pregnancy may be resumed to constitute a grave injury to the mental health of the pregnant woman.

(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2) account may be taken of the pregnant woman’s actual or reasonable foreseeable environment.”

Although it does not recognise safe abortion as women’s right, there is no doubt that this law has had a significant impact on the reduction of deaths caused by septic and unsafe abortions. However, it is a tragic reality that the vast majority of women and even some community health workers in our country are still unaware of this law.

A study from the Population Council, India states that “in a community-based study in Rajasthan, only one in six men and women were aware that abortion was legal. Even more alarming was that nearly four in five men and more than one in two women believed it was illegal and formal services are less likely to be sought when women perceive abortion to be illegal.”

Apart from awareness, there are also problems with implementation regarding providers and equipment and sensitive services in the public sector and costs and quality in the private sector.

The situation has been made worse in the last decade with the vigorous implementation of the PCPNDT Act whose posters and slogans have made it seem as though all abortions were illegal, rather than conveying that sex determination is illegal. Second trimester abortions are more likely to be denied due to fear of sex determination, and such women are forced to seek informal and unsafe abortion services.

Unsafe Abortions:

Unsafe abortions are still a reality in India and contribute to at least 13% of the pregnancy related deaths in women and girls. The vast majority of abortion seekers continue to be married women seeking to limit their family size. Unsafe abortions can have many health consequences, including death.

The Centre for Reproductive Rights states that forcing a woman to undergo a life-threatening unsafe abortion threatens her right to life. They also emphasise that denying women access to abortion is a form of gender discrimination.

Health Consequences of Illegal And Unsafe Abortion:

It is important to distinguish between illegal and unsafe, since in countries with restrictive laws, doctors may provide services which are illegal but safe.

Fig 1: Distribution of countries by number of deaths attributable to unsafe abortion

Common complications of unsafe abortions may range from infections and infertility to serious infections and injuries that may lead to the need for removing the uterus and even parts of the intestine, severe blood loss needing transfusions and death due to haemorrhage, internal injuries and infections. Providing access to safe, accessible termination services helps to reduce the chances of all of these consequences. Access to safe abortion, therefore, reduces the mortality rate of women and girls who lose their lives as a result of infections or complications caused by unsafe termination services.

Unsafe Abortions and Maternal Mortality:

The UN’s Human Rights Committee has discussed illegal and unsafe abortion as a violation of Article 6 of the International Covenant on Civil and Political Rights, the right to life and has linked illegal and unsafe abortions and high rates of maternal mortality. The Human Rights Committee has requested that states parties provide information on the effects of restrictive abortion laws on maternal mortality. The Committee has also urged states party to revise their national laws to help women prevent unwanted pregnancies and to prevent women from resorting to clandestine abortions, which put their lives at risk.

Analyzing Women’s Rights As Human Rights:

As the authors R J Cook and B Dickens state in their article on Human Rights and Abortion Laws: “Human rights are invoked both to support and to oppose choices to terminate pregnancies.”Human Rights Treaties: The Preamble of the United Nations Charter, adopted in 1945, reaffirms “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and nations large and small.” The Charter recognizes that one purpose of the United Nations is “to achieve international cooperation in . . .

promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”

In 1999, the Committee on the Convention on the Elimination of Discrimination against Women (CEDAW) elaborated the link between human rights, freedom from discrimination, and women and health in General Recommendation 24 on Article 12 of the Convention.

Within the section headed “Recommendations for government action” they highlighted the need for:

“29. States parties should implement a comprehensive national strategy to promote women’s health throughout their lifespan. This will include interventions aimed at both the prevention and treatment of diseases and conditions affecting women, as well as responding to violence against women, and will ensure universal access for all women to a full range of high-quality and affordable health care, including sexual and reproductive health services.”

“30. States parties should allocate adequate budgetary, human and administrative resources to ensure that women’s health receives a share of the overall health budget comparable with that for men’s health, taking into account their different health needs.”

“31. States parties should also, in particular: ….

(c) Prioritize the prevention of unwanted pregnancy through family planning and sex education and reduce maternal mortality rates through safe motherhood services and prenatal assistance. When possible, legislation criminalising abortion should be amended, to withdraw punitive measures imposed on women who undergo an abortion; …

(e) “Require all health services to be consistent with the human rights of women, including the rights to autonomy, privacy, confidentiality, informed consent and choice;”

The obligation to “reduce maternal mortality rates through safe motherhood services” clearly applies to the mortality of women caused by accessing unsafe abortion services. Further, the obligation to provide “interventions aimed at both the prevention and treatment of diseases and conditions affecting women” if read to include infections and conditions in addition to diseases also applies to preventing the infections and conditions (such as infertility) caused by accessing unsafe abortion when safe abortion is unavailable or culturally, geographically or financially inaccessible.

“Reproductive rights embrace certain human rights that are already recognised in national laws, international laws and international human rights documents and other consensus documents. These rights rest on the recognition of the basic rights of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes the right to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents.”

UNFPA, ICPD Programme of Action, Paragraph 7.3

Women’s Rights are Human Rights is a term used in the women’s rights movement and is the name of a speech given by then American First Lady Hillary Clinton on 5th September 1995 at the United Nations Fourth World Conference on Women in Beijing.

In her speech, Clinton targeted governments and organisations as well as individual females, as she opined that the issues facing women and girls are often either ignored or “silenced” and thus go unresolved as they are not treated as priority issues like some other ‘human’ rights. Issues brought up in the speech include dowry deaths and China’s one-child policy. The speech is considered to be influential in the women’s rights movement and in 2013 Clinton, then as Secretary of State for the USA, led a review of how women’s rights have changed since her 1995 speech.

The Human Rights of Women

45 years after the Universal Declaration of Human Rights was adopted, 18 years after the Beijing conference and subsequent Beijing Platform for Action marking International Women’s year, and 12 years after CEDAW entered into force, the 1993 UN World Conference on Human Rights in Vienna confirmed that women’s rights were human rights. That this statement was even necessary is disappointing since women’s status as human beings entitled to rights should have never been in doubt.

Sexual And Reproductive Rights are also Human Rights:

The International Planned Parenthood Federation (IPPF), which is the largest global federation working on sexual and reproductive health service delivery as well as advocacy, has developed a Charter on Sexual and Reproductive Rights as a response to the challenge of interpreting human rights language and applying it to sexual and reproductive health care issues. The classification of specific issues under certain rights represents IPPF’s judgement of where each issue should best appear. It should be noted that, by their membership in international human rights conventions, states recognise legal duties that arise under international law. Many provisions in international conventions quoted in the Charter are obligations that governments have entered into and to which they can be held accountable.

The order in which the rights appear within the Charter reflects their relevance to IPPF’s mission; no order of magnitude or significance among the various rights is implied:

1 The Right to Life

2 The Right to Liberty and Security of the Person

3 The Right to Equality, and to be Free from all Forms of Discrimination

4 The Right to Privacy

5 The Right to Freedom of Thought

6 The Right to Information and Education

7 The Right to Choose Whether or Not to Marry and to Found and Plan a Family

8 The Right to Decide Whether or When to Have Children

9 The Right to Health Care and Health Protection

10 The Right to the Benefits of Scientific Progress

11 The Right to Freedom of Assembly and Political Participation

12 The Right to be Free from Torture and Ill Treatment

As one can infer from this Charter, the rights to access a safe abortion fulfils many criteria integral to the fulfilment of women’s human rights.

Laws which criminalise abortion services affect women only and hence are discriminatory. Forcing a woman to undergo an unsafe abortion violates her right to life, right to healthcare and health protection as well as the right to benefits of scientific progress. In situations where contraception is unavailable or information is also not available and occasionally when contraception fails, a woman must have the right to find a safe service to terminate that unwanted pregnancy since the failure to do so would violate her right to decide whether and when to have children. The need to seek out unsafe and stigmatised services would violate her right to be free from torture and ill treatment.

Recognize Criminalisation of Abortion as a Violation of Many Human Rights of Women:

During the 66th General Assembly of the United Nations, held in October 2011, Anand Grover, the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, said “Criminal laws penalizing and restricting induced abortion provide examples of State interference with women’s right to health,” adding that such laws restricted women’s control over their bodies, undermined their dignity and infringed on their autonomy.

He also stated that criminal laws were ineffective in discouraging women from seeking abortions, their ultimate impact was only actually determining whether abortion was safe or unsafe for women with unwanted pregnancies are likely to seek the procedure regardless of its legal status.

In 2016 the UN Committee on Economic, Social and Cultural Rights released a ground-breaking General Comment. The Comment stated that:

“The right to sexual and reproductive health is also indivisible from and interdependent with other human rights. It is intimately linked to … the physical and mental integrity of individuals and their autonomy, such as the right to life; liberty and security of person; freedom from torture and other cruel, inhuman or degrading treatment; privacy and respect for family life; and non-discrimination and equality. For example, …. denial of abortion [can] often lead to maternal mortality and morbidity, which in turn constitutes a violation of the right to life or security, and in certain circumstances can amount to torture or cruel, inhuman or degrading treatment.”

The Comment further linked the aim to reduce maternal mortality with the need to provide access to safe, legal abortion: “To lower rates of maternal mortality and morbidity requires emergency obstetric care and skilled birth attendance, including in rural and remote areas, and prevention of unsafe abortions. Preventing unintended pregnancies and unsafe abortions requires States to adopt legal and policy measures to guarantee all individuals access to affordable, safe and effective contraceptives and comprehensive sexuality education, including for adolescents, liberalise restrictive abortion laws, guarantee women and girls access to safe abortion services and quality post-abortion care.” (citations omitted)

Laws and Policies in India:

The Medical Termination of Pregnancy Act of 1971 gives the legal framework within which safe abortion services can be sought and provided in India. In the last few years, there have been attempts to amend the Act to become more inclusive and make it easier for women to access safe services. Countries such as Nepal and

South Africa which have implemented abortion laws recently have liberal provisions which allow women to seek a safe abortion in any public health facility without having to offer any explanation for a pregnancy up to 12 weeks.

In both these countries, trained mid-level providers and nurses are also allowed to provide safe abortion services, and this facilitates access for women, particularly those living in rural areas where access to a doctor is not easy.

India has other laws which, although unrelated to abortion, have an impact on the way services are offered. The PCPNDT Act which was passed to prevent sex determination is being implemented in a way that is harassing doctors who are providing abortion services and thus reducing access and increasing denials.

Other laws which can make access difficult are the POCSO  wherein the doctor is liable to report to the police any case of sexual intercourse with a young woman below 18 years of age. This will make it difficult for them to provide abortion services to minors who are pregnant. The Prohibition of Child Marriage Act 2006, contains laws addressing marital rape. Here the age of eligibility for marriage is 18 for women and 21 for men. Other laws, however, recognise that intercourse with your spouse is legal if your wife is over the age of 16. This lack of consistency regarding the age of consent creates an obstacle for young women to seek and receive terminations for fear their husband may be punished.

Human Rights Law Defense in Canada, Latin America and Europe:

Some cases have been fought in international committees as well as in regional courts such as the Inter American Commission  where the court judgment has recognised denial to a safe abortion as a violation of human rights.

In October 2005 the Human Rights Committee handed down a landmark judgment in K.L. v. Peru. The decision held the Peruvian government accountable for failing to ensure access to abortion services to an individual.  In 2016 the Human Rights Committee in Mellet v Ireland also stated that Ireland had subjected the author of the complaint to “conditions of intense physical and mental suffering” because it did not provide her with abortion services and after care when her wanted pregnancy was not viable which left her in a “highly vulnerable position.” The Committee also found that the state had unreasonably and arbitrarily violated her rights to privacy and personal decision-making which was against her interest and rights.

In the 1988 ruling of Supreme Court of Canada in R. vs. Morgentaler, the court ruled:

“Section 251 interferes with a woman’s bodily integrity in both a physical and emotional sense. Forcing a woman, by the threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her priorities and aspirations, is a profound interference with a woman’s body and thus a violation of security of the person. Section 251, therefore, is required by the Charter to comport with the principles of fundamental justice.”

Lower courts had found the restrictive abortion provisions in the Criminal Code lawful, but the Supreme Court found them to violate women’s rights declared in the Canadian Charter of Rights and Freedoms of 1982. The Chief Justice of Canada ruled that the Criminal Code violated women’s rights because forcing a woman to carry a foetus to term because of the fear of criminal punishment and the unavailability of abortion services as it may violate national laws and fail to recognise the woman’s priorities and aspirations thereby reducing her status as a full human with rights to life, dignity, freedom from interference and others is a ‘profound interference with a woman’s body and thus a violation of security of the person’. The Court recognised a legitimate state interest in unborn life but considered offensive state-enforced continuation of pregnancy over a pregnant woman’s wishes.

Human Rights Frameworks and Its Interpretation For Women’s Rights:

The Centre for Reproductive Rights (CRR) has put together a discussion of statements relating to abortion made between January 1993 and June 2008 by six committees: the Committee on the Elimination of Discrimination against Women (CEDAW Committee); the Committee on the Rights of the Child; the Human Rights Committee; the Committee on Economic, Social and Cultural Rights; the Committee on the Elimination of Racial Discrimination; and the Committee against Torture.

Such statements made by UN Committees included in the CRR report include:

Cedaw Committee: “It is discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women.”

Committee on the Rights of the Child: “On several occasions, the Committee on the Rights of the Child has made the link between maternal mortality and high rates of illegal, clandestine, and unsafe abortions.”

ICESCR Committee: “requires at a minimum the removal of legal and other obstacles that prevent men and women from accessing and benefiting from health care on the basis of equality. This includes, inter alia,…the removal of legal restrictions on reproductive health provisions.”

Human Rights Committee (ICCPR): re. The right to life: “give information on any measures taken by the State to help women prevent unwanted pregnancies, and to ensure that they do not have to undergo life-threatening clandestine abortions.”

Committee Against Torture: “medical personnel employed by the State den[y] the medical treatment required to ensure that pregnant women do not resort to illegal abortions that put their lives at risk. Current legislation severely restricts access to voluntary abortion, even in cases of rape, leading to grave consequences, including the unnecessary deaths of women.”

The recent case where Savita Halpannavar died in Ireland due to being denied a uterine evacuation despite increasing septicaemia also provoked strong responses from women’s rights activists in Ireland as well as globally. The issue being debated is the obligation of an institution to provide medical care by employing adequate staff to deliver and implement it while respecting individuals’ rights of conscientious objection.

Right to Life of the Foetus

The international human rights treaties and authoritative interpretations of these treaties suggest that the right to life as spelled out in international human rights instruments is not intended to apply from the moment of conception.65 International legal experts assert that the historical understanding is that the right to life, as protected by the International Bill of Rights, begins when a human being is born. This interpretation is supported by the negotiation history of international human rights treaties as seen in regional and international judgments. Despite this there are movements to limit access to abortion in the USA and organisations that lobby for conscientious objection for medical practitioners. Whilst the latter is permitted under law via the right to freedom of expression if a state fails to provide an accessible alternative this should be read as a failure to fulfil women’s human rights to exercise choice and agency over their own bodies and life, their right to life with dignity, their right to health, and also to be free from degrading treatment.

Conclusion:

Even though several laws have been put in place, both domestically and internationally, to facilitate safe abortions, there is enough evidence which suggests that this is not sufficient. Millions of women die each year in India because of accessing an informal abortion procedure.

The government needs to initiate several awareness campaigns where women are made aware of when terminations can take place. Information on the legal status of abortion needs to be more widely accessible, and signposting to safe abortion clinics also needs to be widely implemented. Awareness is also needed among healthcare providers, doctors and law enforcers so they know when terminations can be legally conducted. The government health facilities are deemed recognised under the MTP Act, but there is a lack of such services which are accessible, affordable and also maintain confidentiality and do not coerce for contraception.  The State needs to be held accountable for ensuring that safe abortion services, including Medical Abortion Pills, are made available to women through the public health sector.

Social issues which act as barriers to obtaining a safe abortion such as poverty and lack of knowledge should all be addressed to ensure that women can access and fulfil their human rights to the highest attainable standard of reproductive health rights.

Reference

1. World Abortion Laws map http://worldabortionlaws.com/map/
2. Understanding safe abortion as a women’s right: a study of legal professionals http://www.asap-asia.org/publications/2009/India_Abortion_Booklet_Update.pdf
3. Facts on induced abortion worldwide: http://www.guttmacher.org/pubs/fb_IAW.html
4. A girl who changed the world : LC vs Peru http://www.youtube.com/watch?v=MqV2Xhz6YBM
5. 4 months 3 weeks 2 days: During the final days of communism in Romania, two college roommates, Otilia and Gabita, are busy preparing for a night away. But, rather than planning for a holiday, they are making arrangements for Gabita’s illegal abortion and unwittingly, both find themselves burrowing deep down a rabbit hole of unexpected revelations. http://www.youtube.com/watch?v=ZisE16JBUMA
6. IPPF Charter on Sexual and Reproductive Rights http://www.ippf.org/resource/IPPF-Charter-Sexual-and-Reproductive-Rights