Abortion Laws in Bangladesh and India: A Comparative Study

Abstract: 

The object of this study is to show the differences between the abortion laws of Bangladesh and India, namely, The Penal Code, 1860 in Bangladesh and the Medical Termination of Pregnancy Act, 1971 in India. Throughout the paper, reasons of abortion, features of both the laws and the comparative discussion have been inscribed.  The shape of a law regarding a sensitive issue like this one, how keeps pace with the changing situation and how fails in some cases to keep its footing in right place, have been shown. After the study a great difference has been found between the laws. The result of the study shows that a huge amendment of the law of Bangladesh is needed.

 This study clarifies the points where the laws are going off and insufficient.  

Research Methodology: 

The paper has been written on the basis of bookish study available online. Qualitative research methodology has been followed in this paper.

Introduction: 

A very emotional phase in the life of a woman is the time of pregnancy and becoming a mother. But in certain situations pregnancy may bring misery rather than happiness e.g. rape cases, incest, fetal abnormalities, major complications, life risk of the pregnant woman. In these cases abortion is more preferable.

According to medical perspective, abortion is a loss of pregnancy due to the premature exit of the products of conception (the fetus, fetal membranes, and placenta)    from the uterus due to any. ⁽¹⁾ 

On the other hand, according to legal perspective, Abortion is the artificial or spontaneous termination of a pregnancy before the embryo or fetus can survive on it’s own outside a  woman’s uterus. ⁽²⁾

But the problem which is also the reason of this study is abortion is not permitted by law all the time. There are different laws in different countries.  The laws regarding abortion in India and Bangladesh are the main focus of this paper.

Bangladesh so far does not have any particular law for legalizing abortion except for the Penal Code, 1860, sections 312 to 316.⁽³⁾   On the other hand, India’s Medical Termination of Pregnancy (MTP) Act, 1971 ⁽⁴⁾  along with the amendments is much more furnished law which is said to be an advanced law regarding abortion.

The features of these two laws of Bangladesh and India are compared because these two countries have significant similarities in social, economic and other perspectives. More studies are recommended for latest updates of India’s MTP Act and high court rulings.⁽⁵⁾          

Major Abortion Reasons: 

According to the article named “Women have abortions for many reasons aside from rape and incest” by Christina Zdanowicz, a reporter on CNN of Wednesday May 22 ,2019 , many reasons may be involved for abortions. The research though was conducted on US abortion cases,the grounds of abortion still applies in the scenario of Bangladesh and India. The causes mentioned in this article aside from ‘rape’ and incest are inscribed here-

1. The baby would have been born brain dead .
2. The mother was not ready for more children.
3. The pregnancy was caused due to the failure of birth control tools.
4. In this case she didn’t want to make the purpose of her abortion public and only said of circumstances.
5. This mother didn’t want her child to be born in the abusive household she was in.

Though in these cases abortion was possible for the laws dealing with abortion in US allowed it. But to see through the laws of Bangladesh and India, these abortions would not have been performed legally as the laws do not permit.

But if compared, India’s Medical Termination of pregnancy (MTP) Act, 1971 along with the amendments is much more liberal then the Penal Code, 1860 sections 312-316, the only regulation for abortion in Bangladesh.                              

Features of Penal Code ,1860 (u/s 312 to 316): 

 As it can be said from , the nature of the Penal Code, 1860, it’s a penalizing Act than a law providing guideline .

These sections only provide the rules regarding –

1. When the abortion can not be done .
2. Except for which reason the abortion can not be done.
3. Penalties for disobeying the laws.

The features are detailed herein per section to make it clearer-

Section 312– 

1. When the abortion can not be done: Abortion can not be done when the ‘movement of the fetus of the can be felt ‘. According to the media perspective, the movement of the fetus can be felt between weeks 16 and 25 of pregnancy⁽⁶⁾. In case of the first pregnancy it may be felt when the pregnancy is near 25 weeks and in case of second pregnancy it can be 13 weeks. So, if that’s the case, Penal Code, 1860 allows abortion before 25th week in case of first pregnancy and before 13th week in case of second pregnancy.

But, as the fact of feeling the movements is not a concrete matter and this section also does not give any particular fixed guideline, the whole thing about the timing of abortion becomes uncertain and ambiguous.

A law which is the sole mechanism on a vital issue like abortion, controlling a country of a vast population being ambiguous on a vital point like in which period of time the abortion can be done is alarming.

2. When abortion can be done: According to section 312 , abortion is only allowed for the reason of saving the life of the pregnant woman. To be practical making this the only scope for abortion proves the law to be as narrow as possible.
3. Penalties: The penalties inscribed in this section only close the door for legal abortion in situations except for saving the life of the woman.

Section 313- 

This section deals with consent which is a must while conducting almost every act relating to an individual. So, this section is not totally special for only abortion e.g. the consent is a must for conducting a surgery except for special situation ⁽⁷⁾.

Section 314- 

This section penalizes an individual causing death to the woman while performing abortion. Penalty differs in case of consent.

Section 315- 

This section penalizes  whoever with the intention to stop a child from being born except for the reason to save the life of the woman.

Section 316- 

This section penalizes the act of causing death of the unborn quick child while attempting culpable homicide  on the pregnant women .

To take a glance on these sections, it becomes clear that, the indications relating to abortion in Penal Code, 1860 makes the scopes for abortion narrow and inhuman.

Features of Medical Termination of Pregnancy (MTP) Act, 1971: 

The MPT Act, 1971 is said to be a progressive law among the laws of the countries allowing abortion.

The features can be categorized by sections :-

Termination of pregnancy has been made of legalized by this Act under section 3. A registered medical practitioner can terminate a pregnancy of upto 20 weeks and medical practitioner not less than 2 can terminate a pregnancy of up to 24 weeks.

The grounds for abortion are –

1. 1. Life risk of that woman or physical or mental injury. Mental health injury has been introduced as pregnancy cause by rape and failure of birth controlling device.
2. If the unborn child is to be born as seriously handicaped child the abortion can be done under section 3(4) makes the consent of guardian in case of a minor’s abortion and in other case the consent of the woman a must.
3. Section 4 specifies the hospitals to perform abortion.
4. Sector 5 makes an exception in section 3(2) and section 4 in case of life emergency. Also forbids to cause abortion by other than registered medical practitioner.
5. Section 6 delivers the power to make rules under this section to the central government.
6. Section 7 declares the power of state government and chief medical officer regarding the information and penalizes any contravention of the requirements.
7. Section 8 nullifies any suit to the harm caused in good faith.
8. The amendment of this act on 2020, adds section 3(20) which creates a medical board consisting a gynaecologist, a paediatrician, a radiologist/ sonologist and any number of members notified by the official gazette.

Section 5(A) reserves the privacy of the information of abortion.

Comparative discussion of the features:- 

The above mentioned features under the previous two headings of the laws related to abortion in Bangladesh and India, namely, The Penal Code,1860 and The Medical Termination of Pregnancy ( MTP) Act,1971 along with the amendments. The differences between the features of these two laws can clearly be differentiated.

The subject matter of this study is to show a comparative picture of the law mechanism of the two countries regarding abortion. To make the discussion clearer some points can be structured for the comparative discussion.

1. Defining the subject matter: 

 Here the subject matter is abortion law. But between the two laws of Bangladesh and India none defines abortion in a legal way which may lead to ambiguity as this is a sensitive issue.

2. Scope for legal abortion (Broadness of the Act): 

Scope for legal abortion means in which circumstances abortion is made legal. This scope includes information regarding the pregnancy complications, cause of the pregnancy.

Bangladesh: 

The Penal Code,1860 permits abortion only in case of the life danger of the pregnant women. This can be said as the narrowest law in this regard. Even if this provision had not been included, abortion would have been permitted under article 32 of the Constitution of Bangladesh which ensures the right of life.⁽⁸⁾ 

India: 

On the other hand,  MTP Act, 1971 approves abortion in the cases of –

1. Life risk
2. Physical/mental injury due to rape or failure of birth controlling device
3. When the baby is to be born seriously handicapped. 

To permit abortion directly in such circumstances makes this law more humane and broad. On the basis of a report of National Crime Records Bureau(NCRB) which usually releases data after two years annual,  in 2018 showed the rape rate per 1,00,000 women increased to 58.8% in comparison with 57.9% in 2017. According to recently released official government crime data, a rape is reported every 15 minutes in India.⁽⁹⁾

In this kind of social situation not permitting abortion for the rape caused pregnancy would be inhuman.

On the the other hand, according to a report on April 5, 2020 of Ain O Shalish Kendro(ASK), during January to March, 2020 total 257 women were raped, 12 were dead after being raped, 50 attempts to rape and 4 women committed suicide after being raped. ⁽¹⁰⁾    Even in this scenario, no law is present in Bangladesh permitting abortion in cade of pregnancy caused by rape. 

To focus on another permitting ground of abortion in India, both India and Bangladesh have population problem.  So, birth controlling devices and mediums are inspired by the state itself. It’s only natural for having faults in devices. So an unwanted pregnancy in this kind of situation should have the permission of abortion which India provides but not Bangladesh.

Another scope permitted for abortion is when a child is to be born seriously handicapped. To lead a life worthy of living depends on good physical condition the most. But when the child is clearly to be born in a physical condition where it can’t have a normal life rather than more likely to have a miserable life.  In this case, India permits abortion where such critical situation is in hand.

And just like the other issues, Bangladesh does not give any declaration regarding this aspect.

3. Specifying the authority of abortion : 

As India has a specified law regarding the matter of abortion, it has also specified the authority who can conduct the whole act of abortion. On the other hand, Bangladesh naturally don’t have any specification as it lacks the specific law.    

4. Specifying the place of act : 

Observing the whole discussion till now, it’s quite clear that the Penal Code, 1860 do not provide any specific regulation about where exactly the abortion in to be performed.  Hopefully The Medical Termination of Pregnancy Act, 1971 prescribes that only the hospitals specified by the government can perform abortion.   

5. Rule for privacy of information : 

Abortion is a sensitive issue on the perception of the social system and tendency of both Bangladesh and India.  So, the privacy of the information’s of the abortion is pretty important. Giving a thought in this matter, The Medical Termination of Pregnancy Act, 1971 preserves the privacy of the information’s regarding abortion. Only the designated person/s can access the information’s and that’s also for legal and reasonable purpose. On the other hand, there’s no such declaration in the Penal Code, 1860 which is the sole regulation of abortion mechanism for Bangladesh.

6. Rule for emergency and exceptional situation: 

Emergency and exceptional situation may appear any time. For being a good law, an Act must have regulations for this kind of situation.  The Medical Termination of Pregnancy Act, 1971 includes this kind of regulation and makes section 4 and 3(2) of the Act unnecessary when the of the pregnant woman is at risk.On the other hand, The Penal Code, 1860 makes abortion legal only when the situation is emergency i.e. only when the life of the pregnant woman is at risk.

7. Rule  of penalty when the law is not obeyed: 

 Enforcing a law without any penalty for not obeying that can actually do not reform in practical. Both the Medical Termination of Pregnancy Act, 1971 and the Penal Code, 1860 contains penalty for not obeying the regulations.

8. MTP,1971 and Penal Code ,1860 application: 

 Penal Code, 1860 is in applicable both in Bangladesh and India.  As only Penal Code, 1860 is not sufficient India enacted the Medical Termination of Pregnancy Act, 1971 while Bangladesh stays inactive.

Conclusion: 

Law is created to discipline a particular behavior comes to light gradually.  After that the behavior is judged in good and bad side.  To control or discipline such behavior a law is formulated making the ill side illegal to protect the social order and giving legality to the good portion to encourage people to follow that. But when a behavior keeps changing it’s background and importance along with the social basis the need of amendments of the related law on a specific law become a must for keeping the social order in place.  Otherwise, people will tend to go beyond the legal portion and try to attain what they need even though that’s illegal.

So, after observing the whole situation in this paper, the differences clearly states that, amendments or a whole new specific law is a crying need in Bangladesh and the Medical Termination of Pregnancy Act, 1971 to be working in good shape for the present situation.  The rate of amendments of MTP Ac, 1971 is also satisfying which shows the government is keeping the law up to date. 

Writer: 

Maisha Nawar  ,Department of Law, University of Chittagong.  

End notes: 

1. Medical definition of abortion, William C. Shiel Jr., MD, FACP, FACR. 12 April, 2018.
2. Abortion-Legal Dictionary| Law.com

3. The Penal Code, 1860, section 312-316
4. MTP Act, 1972 | Ministry of Law of India
5. Times of India – MTP Act, 1971 high court ruling.
6. Timeline of Baby Movement, Kecia Gaithe, MD, MPH. WebMD Medical Reference. 17 July, 2018.
7. The Contract Act, 1872, section 10.
8. Article 32, Constitution of Bangladesh.
9. A rape in India every 15 minutes : government data – Asia times. January 15, 2020. By Varalika Mishra.
10. Violence Against Women -Rape (Jan-Mar 2020), April 5, 2020, Ain O Shalish Kendro.