Balancing the rights – of mother and unborn baby -Governance Now


A woman gives birth to a human being. This provides her advantage and disadvantages both. She has a right to motherhood. But the irony is that, whether she has a right to abortion. There is war or conflict between the rights of the mother and the child who have not taken birth till now. In recent years the abortion has become a live topic at the national and international levels. There are two types of views prevailing. One is Pro-life, according to which the unborn child has a right to life. And they consider abortion wrong. And the other type of view is Pro-choice, which says that the woman has a right to choose whether she wants to keep the baby or not. No one shall be compelled to keep an unwanted pregnancy and the state has no business in anyone’s bedroom.


In India Article 21 of the Constitution of India gives the Right to Life and Personal Liberty. Abortion is part of this right to life and personal liberty. In the U.S judgment (Roe vs Wade) the court considers abortion as right to privacy which is again a part of Right to Life and Personal Liberty.  

Section 312 of the Indian Penal code punishes the miscarriage. It uses two words 1) woman with child and; 2) woman quick with child. Woman with a child simply means, a pregnant woman. The period of conception and gestation begins is said to be a woman with a child. The section makes an exception in case of the mother’s life is endangered to keep the child.

The Medical Termination of Pregnancy Act, 1971 allows abortion in special circumstances-

  1. To save the life of the woman
  2. To save physical and mental health
  3. Pregnancy in case of rape and incest
  4. Fetus impairment
  5. Contraceptive failure is also a ground to terminate the pregnancy.

This act allows termination of pregnancy of 12 weeks by a medical practitioner. And in case of termination of pregnancy of 12-20 weeks, the opinion of two medical practitioners is required. In a recent judgment of 2015, the Supreme Court allows a 15 years old rape victim to terminate her pregnancy.


Today there is a trend to recognize the unborn as a human being. The modern biologist’s view is that the heart of the child begins to beat after 18-25 days and at 43rd-day electrical brainwaves starts working. The pregnant woman carries life from the time of fertilization. So, the fetus is a complete person at the very moment of conception. He has the right to life and the government has duty to protect this right. Hence abortion is like murder and the process of taking one’s life. The mother cannot say that she has the right to choose when the right to life of the unborn is going to infringe.

Article 4 of the American Convention on Human Rights states that every individual has the right to life to be respected. And the law should protect this right from the very moment of conception. Ireland in 1983 amended its constitution which is known as the Pro-life amendment.


But there is another view according to which by making the abortion punishable is infringing the Right to Privacy and Right to Dignity of a woman. The right to dignity implies the autonomy of an individual for intimate decisions that affects the private life. And Right to Privacy implies that the State should not interfere in someone’s personal life, includes the right to take the right decision about her child’s future.

In case of rape or incest rape of women, to force a woman to keep the child, will increase the mental trauma. Banning or putting restrictions on abortion will take us to the days of “back street abortion”. This will compel the woman to take the help of unhygienic medical help. This will raise the risk to women’s health.

So, any law which prohibits right to abortion is a clear violation of her –

  1. Right to Life
  2.  Right to Personal Liberty
  3. her Right to Privacy and;
  4. Right to dignity and health.


Every woman has a right to live her life with dignity and honour. As Supreme Court held that, Right to Privacy is a part of the Right to Life under Article 21 of the Constitution. So, it should be the personal choice of a woman whether to keep her pregnancy or not as it should be her right to privacy. The right to reproductive should be free from the Government regulations. The fetus has not got a legal position until he has an interest of his own. When there is a danger to the life of a woman because of pregnancy, it is the mother and child who are in danger. Who is threatened has no-fault and who threatens life also have no-fault. So it should be the personal choice of a woman only.

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