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Report No. 42

I. Amendment of section 312

I regret I am unable to agree with the recommendation that a proviso be added to section 312 whereby, causing miscarriage would not amount to an offence if it were done by a registered medical practitioner with the consent of the woman who has not been pregnant for more than three months. In my opinion the effect of this recommendation would be to liberalise our law on abortion beyond socially acceptable limits.

Under the penal laws of most countries, the causing of abortion was considered, until quite recently, a culpable crime except when such abortion is necessary to save the life of the woman. Following widely supported demands for liberalisation of these rules, many countries have enacted less restricted laws on abortion. In India too, there have been demands for such liberalisation, and the Government of India in 1964, appointed a committee to study the question of legislation of abortion.

The committee under the Chairmanship of Sri Shantilal Shah, the then Minister of Health of the Government of Maharashtra consisted of representatives of the Central Social Welfare Board, Family Planning Association of India, Association of Medical Women in India, All-India Women's Conference, Federation of Obstetrical & Gynaecological Societies of India. Indian Medical Association and Indian Council of Child Welfare. The Committee, after a detailed study of the subject, submitted its report in 1966. The recommendations were that the provision regarding abortion in the Indian Penal Code was too restrictive, and should be liberalised to allow termination of pregnancy by a qualified medical practitioner acting in good faith not only for saving the pregnant woman's life but also:

(a) when the continuance of the pregnancy would involve serious risk to the life, or grave injury to the health, whether physical or mental, of the pregnant woman, whether before, at, or after the birth; or

(b) when there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped in life; or

(c) when the pregnancy results from rape, intercourse with an unmarried girl under the age of 16 or intercourse with a mentally defective woman.

It is obvious from its membership, that the committee was a wide-based expert body with adequate representation for women who, after all, are those primarily concerned with the subject of abortion. In my opinion, the Committee's recommendation has gone as far as one may properly go in liberalising abortion laws without doing damage to our social and cultural values.

Contrived termination of pregnancy, at whatever stage of the child's development in the mother's womb, amounts to wilfully extinguishing a human life. One may do so only for good and sufficient reasons. These reasons may change with changing social and cultural values; but there must always be some demonstrable reason. If, at one stage, a society will accept only imminent danger to the mother's life as sufficient justification, the same society at another stage of its evolution may consider the likelihood of an adverse effect on the mother's health as good enough reason for permitting abortion. The recommendation of the Committee appears to reflect such a change in our society's attitude.

However, our present recommendation goes far beyond that. The effect of the recommended proviso to section 312 would be to permit abortion at will during the first 12 weeks of pregnancy. This is a quantum jump from abortion to save the mother's life to abortion for convenience.

It would be difficult to justify such attitude unless we consider the 12 weeks old foetus in the mother's womb not as an incipient human life but merely as a 'uterine tumour'. I do not think such disrespect for human life is compatible with our social values.

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