Abortion is one of those ancient legal debates which are still unsolved. However, as the Supreme Court of USA is soon to decide the fate of the historical Roe v Wade (1973) case decision, the media attention worldwide is again focused to this matter. However, this article mainly intents to briefly look into the concept of abortion and try to analyze the situation of the Bangladeshi legal system in respect of recognizing and legally guiding this crucial subject matter.
No unanimous definition can be found of abortion. However, the Penal Code 1860, the Bangladeshi law governing abortion, used the word ‘miscarriage’ instead of ‘abortion’ and contained no clear definition of this concept. But the combined reading of sections 312, 313, 314 and 315 suggests that, miscarriage means the situation where because of some action or actions taken irrespective of the consent of the mother, the child dies before its birth.
Ancient Hindu laws strictly criminalized abortion. But it wasn’t criminalized in ancient Rome and Greece. Even abortion was permitted by the early Roman Catholic church, but later on it was prohibited by Pope Sixtus V and severe punishment was introduced. Islam permits abortion within 120 days of conception and later on for circumstances where it is a must to save the mother. In Bangladesh, the right to abortion is unrecognized. Penal Code 1860 section 312, 313, 314 and 315 criminalizes abortion except for saving the mother’s life. Section 312 prescribes a three years jail, or fine, or both as punishment. Even if a raped woman is quick with her unwanted fetus, she is no exception and the punishment is up to seven years, and also with fine or both. Even providing consent by the woman or her guardian is not a ground for miscarriage. However, Section 313 provides protection to a woman in case of forceful miscarriage. And Sections 314, 315 and 316 prescribes severe punishment for miscarriage related various offenses. Now let’s analyze the justness of these provisions.
By using the word ‘miscarriage’ instead of ‘abortion’, the penal code has failed to properly portray the concept of ‘abortion’ as it refers to the intentional termination of pregnancy, whereas, miscarriage is unintentional or accidental termination of pregnancy. It is like the penal code denies that woman could intentionally decide anything at all! Also, Section 312 is discriminatory toward rape victims. As neither state nor society provides any help to the mother to raise a rape child, it is immoral to impose this obligation. Also, Section 312 ultimately forces the women to pursue the illegal route of abortion. As a result, they suffer from serious reproductive health problems and even lose their life.
The most pressing moral question here is, “why a woman would be criminalized if she aborts a fetus of rape?” Our legal system has failed to answer it. Giving birth to a child and accepting motherhood should be recognized as the part of a woman’s life and liberty guaranteed under article 32 of the Constitution. It is the same penal code which prohibits forceful sexual intercourse, is forcing a woman to give birth when she doesn’t want to. In a metaphoric sense, the penal code has also raped our women by forcing them to be mothers. A woman goes through unbearable pain and suffering during pregnancy. So, it should be solely her decision if she is ready to go through this amount of suffering. Moreover, Islam and many major religions recognize the right to abortion. But despite this strong religious base surprisingly the government did not take any action in this regard. A specialized law like the Abortion Act 1968 of the UK should be introduced recognizing and giving procedural direction about abortion right. Recently a writ petition has been brought in the High Court Division challenging these discriminatory provisions. The HCD has issued a ruling asking the authorities why these laws should not be declared illegal. The government should respond to it showing a positive attitude toward changing these laws. Thus, following these recommendations, the right to abortion will be achieved in the very near future.
For hundreds of years the women of this land have suffered for these unjust provisions. And it is surprising that the government took no action for recognizing abortion rights of the woman. But we can reasonably hope a positive future as recently our judiciary has been playing an active role in this matter. But in order to recognize and promote this right, it requires the participation of the whole nation for one common goal. And the nation must do so because the woman carries the future of this nation and deserve the highest respect. Therefore, we hope one day all the discrimination toward women would come to an end and the nation would enjoy the true freedom for which our Freedom Fighters fought in 1971.
Writer: Mashrur Rahman Mahin, 4th Year, LL.B (Hons’), Department of Law & Justice, Jahangirnagar University.
 Leila Hessini, ‘Abortion and Islam: Policies and Practice in the Middle East and North Africa’  15(29) Reproductive Health Matters 76