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Right to Abortion: Fighting an Age-old Law

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In Bangladesh, according to the Penal Code 1860, abortion is banned unless it is performed to save a woman’s life. Bangladesh does not recognize ‘abortion’ as a right rather considers it as a crime under the guise of ‘miscarriage’.

According to section 312 of the Penal Code 1860, whoever voluntarily causes a pregnant woman to miscarry shall be punished with imprisonment for a term not exceeding three years, or with a fine, or both, if the miscarriage is not done in good faith for the purpose of preserving the woman’s life. If the lady is hasty with her child, she will be penalized by imprisonment for a period of up to seven years, as well as a fine. The reason of the woman or her guardian’s consent for allowing the miscarriage is not excused by the act. Section 313 provides that whoever causing miscarriage without women’s consent shall be punished with imprisonment for life or for a term which may extend to ten years, and with fine. Section 314, section 315, and section 316 of the Penal Code specifies the severity of the penalties for miscarriage-related offenses.

Although abortion could cause a variety of health complications later in life, but it has some important effects like enabling a rape victim not to bear the child of the rapist. Advocate Syeda Nasrin wrote in a writ petition that making abortion illegal encourages many pregnant women to seek secret abortion from untrustworthy doctors and nurses. In many cases, abortion can often lead to serious health problems or even death. She also stated that if rape victims become pregnant, they will be unable to abort the unwanted pregnancy, and their lives will be significantly impacted. The abortion related provisions of section 312 to section 316 of the Penal Code 1860, according to the petition, are discriminatory and in violation of the fundamental rights protected by article 27, article 29, article 31, article 32, article 38, and article 42 of the Constitution.[i]

According to Guttmacher Institution report, while the Penal Code punishes miscarriage severely, government regulations allow for menstrual regulation (MR) procedures (for miscarriage) up to 10-12 weeks after a woman’s last menstrual period (depending on the type of provider) and MRM (MR with medication) up to nine weeks after a woman’s last period. Since 1979, Bangladesh’s national family planning program has included menstrual regulation (MR).[ii] Due to a lack of understanding, ambiguity in the procedures, legal ramifications, and the categorical prohibition of abortion in general under the Penal Code, many women opt to clandestine and dangerous abortions despite the availability of MR services.

The argument over whether abortion should be legal continues to rage around the world. It exists at the intersection of religion, politics, and the law. The ongoing debate between pro-life and pre-choice supporters jeopardizes a woman’s freedom to control her own body. The fact is that MR services are suffering problems such as provider shortages in facilities that are expected to deliver MR, a lack of equipment or providers, and religious or cultural objections. Bangladesh has one of the highest child marriage rates in the world. According to UNICEF Bangladesh, one-third of teenage girls aged 15 to 19 are either pregnant or planning to get pregnant.

Early pregnancy can have major health repercussions for young females, including death. According to the International Centre for Diarrhoeal Disease Research in Bangladesh’s Centre for Health and Population Research. Abortion was 35 times more common among unmarried adolescents. Abortion rates are considerably higher among adolescents under the age of 18 who have not completed secondary school. Approximately 26 percent of women are turned away from MR facilities, the majority of whom are over the legal gestational age restriction.

Abortion must be a common occurrence in a country like Bangladesh where the number of rape cases is dangerously high, the birth rate is high, the illiteracy rate is low, and the state bears no obligation for any child born within its borders. Declaring abortion illegal does not prevent abortion; rather, it encourages women to put their lives in danger by seeking unsafe abortions from inexperienced practitioners. This can lead to health problems such as infertility, organ damage, and death. It further stated that unlawful abortion routes jeopardise the lives of both the woman and the child, causing social stigma and contributing to an increase in orphans and street children. According to Guttmacher’s Abortion study, an estimated 384,000 women in 2014 experienced problems as a result of a covert abortion. One-third of those who required in facility treatment did not receive the necessary post-abortion care (PAC). Hemorrhage and incomplete abortion were the most common problems, but more significant events like shock, sepsis, and uterine perforation were also observed. The groups most likely to experience complications from unsafe abortion include poor women, rural women, and young girls.

Section 312 to section 316 of the Penal Code go against Bangladesh Constitution’s fundamental rights, particularly the right to life and personal liberty. Individual’s rights to life, liberty, and privacy cannot be violated by the law imposing motherhood or parenting. Regardless of whether the fetus enters the womb voluntarily, inadvertently, or forcefully, carrying out a fetus should be a woman’s deliberate decision. Motherhood should be a voluntary decision, not a forced one.

According to the Bangladesh Fertility Survey (BFS), 80 percent of married women under 50 agreed to abortion for pregnancy caused by rape or premarital sex, 53 percent agreed when the mother’s life was in danger, and only 17 percent wanted abortion for economic reasons. As a result, it is evident that these are several causes behind this and that Bangladeshi women agree on them. Then there’s the matter of only one reason while other, more significant causes are neglected.[iii]

In 2017, the Human Rights Committee urged Bangladesh to revise its legislation to provide for additional exceptions to the overly broad ban on abortion, as well as to ensure that women are not denied medical services and are not compelled to resort to unsafe abortions that endanger their lives and health due to legal obstacles, including criminal provisions. Abortion is stigmatised in Bangladesh due to several misconceptions and deeply ingrained traditional, cultural and religious views. As a result, legalising the procedure will not only eliminate dangerous abortion, but will also protect women from social stigma and unexpected pregnancies. It will ensure that both women and children as well as their families live healthy lives. It is high time for the present legal laws on this subject to recognise it as a right rather than a crime.

Writer: Shamsad Nurani, 3rd Year LL.B (Hons’), Department of Law & Justice, Jahangirnagar University.

Endnote:

[i] Dhaka Tribune’s Article About “High Court Issues Ruling on abortion Laws” [ 2020 ] 1(1)    < https://www.dhakatribune.com/bangladesh/court/2020/08/19/high-court-issues-ruling-on-abortion-laws > accessed 25 November 2021

[ii] Guttmacher.org “Menstrual Regulation and Unsafe Abortion in Bangladesh” [ 2017 ] 1(1)   <https://www.guttmacher.org/fact-sheet/menstrual-regulation-unsafe-abortion-bangladesh > accessed 25 November 2021

[iii] Bangladesh Fertility Survey “Attitude Towards Induced Abortion in Bangladesh” 1979 < https://pubmed.ncbi.nlm.nih.gov/12311297/ > accessed 25 November 2021

 

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