ASSIGNMENT- LAW AND EMERGING TECHNOLOGIES
SUBJECT CODE- LLB 405
EXPERIMENTS ON HUMAN BEINGS BABY ABORTION
DEPARTMENT OF LAW
TRINITY INSTITUTE OF PROFESSIONAL STUDIES
SUBMITTED TO: SUBMITTED BY:
Ms. Yashika Sharma Tushar Yadav
Assistant Professor, TIPS BALLB 2020-25
Semester- 7
Roll No. 04820603820
Abstract
Abortion is a phenomenon that has been deliberated upon since times immemorial and continues
to be a topic of contention even today. This debate can be recapitulated in two terms- Pro Choice
and Pro Life. Abortion is multi faceted because it involves the culmination of many aspects such
as religion, ethics, medicine and law. Abortion is a social issue that provides liberation to women
and gives them power to make their own decisions. But the abortion debate in India would be
meaningless if it did not take into account the crucial problem of female foeticide. Liberation of
women, therefore, needs to be equilibrated against the rights of the unborn child.
Introduction
“There is no freedom, no equality, no full human dignity and personhood possible for women
until they assert and demand control over their own bodies and reproductive process…The right
to have an abortion is a matter of individual conscience and conscious choice for the women
concerned.”
-Betty Friedan.
WOMEN AND their right to determine their sexuality, fertility and reproduction are
considerations that have seldom, if ever, been taken into account in the formation of policies
related to abortion. Abortion is one of the most controversial ethical issues because it concerns
the taking of a human life. Generally, if we look at traditional arguments for and against abortion,
we find legal and religious arguments guiding each respectively. When it comes to those who
favor abortion, they point to the argument that abortion represents a woman’s “right to choose”
whether to continue her pregnancy or terminate it. Antiabortionists, generally make a religious
argument as the spearhead of their collective opposition to abortion.
Through the broad sweep of history, women have practised various forms of birth control and
abortion. These practices have generated intense moral, ethical, political and legal debates since
abortion is not merely a medico-technical issue but "the fulcrum of a much broader ideological
struggle in which the very meanings of the family, the state, motherhood and young women's
sexuality are contested”.
Abortion as a human right
The Preamble of the Universal Declaration of Human Rights describes the Declaration as, “a
common standard of achievement for all peoples and nations” and states that “the peoples of the
United Nations have . . . reaffirmed their faith in fundamental human rights, in the dignity and
worth of the human person, and in the equal rights of men and women.” The second article
stresses further that these rights and freedoms belong to everyone, without discrimination, by
virtue of being a human being: “Everyone is entitled to all the rights and freedoms set forth in
this Declaration, without distinction of any kind.” In the third article, explains the first of the
rights belonging to everyone, “Everyone has the right to life.” The right to life is the foundation
of all other human rights. Though the declaration states the understanding of the international
community regarding human rights, it does not create legal obligations.
International Covenant on Civil and Political Rights (ICCPR) echoes and enforces the right to
life of the declaration. The Covenant proclaims, “Every human being has the inherent right to
life. Law shall protect this right. No one shall be arbitrarily deprived of his life.” Notably, the
covenant articulates the right as applying to every human being. Unlike the word “person” that,
through judicial interpretation in the United States (US), has left the unborn outside a sphere of
protection, “human being” is a scientific term for a living human organism. Thus, one view lies
that the basic human-rights documents are against abortion; they certainly do not create a right
for abortion.
Some jurists have asserted that the historical understanding is that the right to life, as protected
by the international bill of rights, begins when a human being is born. This interpretation is
supported by the negotiation history of international human rights treaties.
During the negotiation processes leading up to the adoption of several international and regional
human rights documents, a small number of governments proposed adding language to the
provisions on the right to life, that would have protected the right to life from the moment of
conception. In the vast majority of cases, these proposals have been rejected.
Article 1of ICCPR, declares that, ‘every human being’ has the inherent right to life, while in
respect to other rights the expressions used are ‘everyone’ and ‘every person’. This use of
different terminology raises the question whether ‘every human being’ has a wider connotation
than ‘everyone’ and could therefore be understood to include the unborn child. There is an
absence of authoritative literature on the above contention however it is a well understood fact
that the criminalization of abortion can have implications regarding the right to life. This can be
backed by the instances of suicides, which young females commit as a result of failure to
perform an abortion due to its criminalisation by the state which is a direct violation of right to
life. Failure to prevent unnecessary deaths due to anti-abortion laws would raise issues pertaining
to the obligation to ensure that everyone enjoys the right to life. Another interpretation can be
drawn from article 12 of the CEDAW Convention that provides that, “States parties shall take all
appropriate measures to eliminate discrimination against women in the field of health care in
order to ensure, on a basis of equality of men and women, access to health care services,
including those related to family planning.”
Abortion and the Constitution of India
While establishing the democratic setup, our Constitution framers were vigilant and inculcated
the sprit that people must be protected against misuse of power by the government and its
officials. They, therefore, provided for the fundamental rights in part-III of the Constitution. The
article 21 of Indian constitution provide right to life which includes within its ambit the right to
privacy. Right to life and personal liberty is the most sacrosanct, precious, inalienable and
fundamental of all the fundamental rights of citizens. This guarantee imposes a restraint on the
government and it is part of the cultural and social consciousness of the community in India. In
this context, every woman owe an individual right, right to her life, to her liberty, and to the
pursuit of her happiness, that sanctions her right to have an abortion.
The women have reproductive features and have right to decide about her sexual health and
shape her reproductive choices. To ensure availability of human rights to women and to advance
the development, the international community acknowledged reproductive rights of the woman.
In order to follow the international mandate, governments from all over the world have
recognized and accredited reproductive rights to women to an unprecedented heights. To fulfill
its commitment government enacted formal laws and policies that are prime indicators in
promoting reproductive rights. Thus it can be reiterated that all over the World each and every
woman has an unconditional right to have control over her own body.
Medical Termination of Pregnancy Act, 1971
After the Roe v. Wade case, European and American countries started to legalise abortion. During
the last thirty years, since 1970s many countries have liberalized their abortion laws. Roe case
has been subsequently modified by the US Supreme Court in Planned Parenthood v. Casey
where the legality of the abortion law is now linked to the viability of the foetus rather than the
rigid third trimester test laid down in Roe case.
In India, the Central Family Planning Board on August 25, 1964 recommended the Ministry of
Health to constitute a committee to study the need of legislation on abortion. The
recommendation was adopted in the later half of 1964 constituting a committee which consisted
of members from various Indian public and private agencies. The committee – called Shantilal
Shah Committee. After analysing a vast expanse of statistical data available at that time, this
committee issued its report on December 30, 1966. On the basis of this report, the government
passed the Medical Termination of Pregnancy Act, 1971 (MTP Act of 1971) and liberalised
abortion laws in India.
The committee acknowledged that there did not exist and would not exist in the predictable
future either the doctors or the medical facilities to support an extensive abortion programme. It
also specifically denied that its intention was to force down for the legislation of abortion only
for the population control in India. The committee further pointed out:-
It is felt, that legalising abortions with a view of obtaining demographic results is unpractical
and may even defeat the constructive and positive practice of family planning through
contraception.
It is noteworthy that the MTP Act was implemented in the month of April, 1972 and again
revised in the year of 1975 to eliminate time consuming procedures for the approval of the place
and to make services more readily available. This Act was amended in the year 2002 and again in
2005. The Preamble of the Act states, “An Act to provide for the termination of certain
pregnancies by registered medical practitioners and for matters connected therewith or incidental
thereto”.
The Act, consisting of just 8 sections, deals with the various aspects like the time, place and
circumstances in which a pregnancy may be terminated by a registered medical practitioner. It
legalizes abortion in case where there is a failure of contraceptives or where the pregnancy will
adversely affect the physical or mental termination of pregnancy, consent of the pregnant woman
is a must unless she is a minor or lunatic when her guardian’s consent is required.
The Act permits abortion only in certain circumstances. It Act allows medical termination of
pregnancy up to Twenty weeks’ gestation. Though the Act talks about the written consent of the
pregnant mother before the technique is administered to her, the law fails to recognise the social
reality that a woman cannot make a free choice. Thus, it is evident that the Act fails to achieve a
equilibrium between the right of the unborn to be born and the right of the woman, who bears,
gives birth and rears the child, to decide whether she wants the child or wants to abort the foetus.
In Nikhil D. Dattar v. Union of India, section 3 and 5 of MTP Act was challenged on the ground
of non-inclusion of eventualities vires of the Act. In this case the foetus was diagnosed for
complete heart block thus the Petitioner, in her twenty sixth week of pregnancy, had sought
termination of pregnancy. The petitioner contended that section 5(1) of the MTP Act should be
read down to include the eventualities in section 3 and consequently, a direction should be issued
to the respondents to allow the petitioner to terminate the pregnancy. The court held that the
courts are not empowered to legislate upon a statute. Sections 3 and 5 provide for right to
terminate pregnancy only under the specified circumstances. And the remedy under section 5 can
only be available when the non-termination of pregnancy would be dangerous to the life of
pregnant woman. While dismissing the petition the court further held that since twenty six weeks
of pregnancy has already passed the court could not pass any direction for exercise of right under
section 3. This case further reiterated that the physical and mental trauma which may be
experienced by women in such circumstances. It also highlighted the ethical issue faced by the
doctors in similar situations.
Socio- ethical issues
Abortion touches social, religious, economic and political aspects. Its impact on the society seen
can be looked at both in a positive and a negative manner. In the earlier years of forming
abortion policy, the Western civilisations disapproved the practice. By the nineteenth century
many nations passed laws banning abortion. It wasn’t until late in the twentieth century when the
women rights were given importance and after many awareness movements that some nations,
including the US, began to legalise abortion.
In India, which is a country with immense social baggage supplemented by societal evils such as
illiteracy and poverty, the impact of the MTP Act should be judged in the context of changing
social circumstances, values and attitudes. The social implications of MTP Act, in its very raw
form can be segregated into abortion in unmarried girls versus abortion in married woman. These
two have completely different connotations. In MTP Act married woman is not considered as a
social stigma, whereas unmarried girls are not easily accepted. The fact that it is unaccepted
creates hindrances in safe abortions, sometimes defeating the very purpose of abortion i.e., health
of the woman undergoing abortion. In villages where there is in access to medical facilities, girls
are taken to other distant places for MTP Act in the name of preserving the girl's future and
keeping image in the society intact. The legalising of MTP Act has obviously had a positive
stimulus upon the omen in need of MTP and has shown reduced incidence of suicide and
betterment of health and safety. The acceptance of the family planning methods has also
witnessed wider acceptance.
The real problem lies in the implementation of the laws and existing framework. It is the
responsibility of the government to ensure that MTP Act is done by qualified surgeons in
registered clinics or hospitals. The concerned authorities need to deal with another major
challenge and that is of the genuineness of reasons behind requesting termination of pregnancy.
There have been cases reported where in MTP Act is performed flimsy ground such as
examinations, family weddings, tours etc. such abortions are conducted by the medical
practioners for financial gains and go unchecked on most occasions due to fabricated reports.
Such abortions have both long term and short term consequences. It is also unfortunate that
abortion often is used as an alternative to regular methods of family planning. Such issues can
only be addressed by government initiatives and awareness programs. It is the social
responsibility of doctors to counsel all patients coming for termination of pregnancy about the
use of some contraception. It should be emphasised that contraception use is much safer than
termination of pregnancy. To mitigate the ill effects on society, the balancing of the negative and
positive aspects of this social legislation needs to be taken up.
Psychosocial aspects
The famous birth control activist Margeret Sanger once said that “No woman can call herself free
until she can choose consciously whether she will or will not be a mother”. Women have
however now come a long way since those days where in abortion was illegal and medical
termination of pregnancy was socially unacceptable. The crucial consequence that followed this
attitude towards abortion was the psychological implications upon the pregnant woman and her
family. These persons were faced with distress of an uncertain future. In today’s time however, it
is legally available in most countries of the world and due to this the physiological trauma and
social isolation have reduced. Psychologically it gives them a sense of control upon one’s own
future and the power to make choices. However, in the favorable social circumstances following
legalised abortion, the patient’s relief of getting rid of the unwanted pregnancy out shadows and
feeling of guilt that either used to accompany an illegal and socially unsanctioned procedure. In a
minority of patients, one sees psychological disturbances in the form of major psychoses or
depression.
Here are some examples of published experiments on living preborns:
Sweden
In the mid-1970s, researchers from four British medical schools began experimentation on live,
late-term aborted babies. Dr. Ian Donald, the British gynecologist who first applied ultrasound to
obstetrics, told reporters that he had personally witnessed experiments being performed on near-
term alive aborted babies at Sweden's Karolinska Institute.
The babies, who were not even afforded the mercy of anaesthetic, writhed and cried in agony,
and when their usefulness had expired, they were executed and discarded as garbage.
Father Paul Marx, O.S.B. Confessions of a Pro-Life Missionary. Gaithersburg, Maryland:
HLI
Finland
At the University of Helsinki in Finland, Dr. Peter Adam of Case Western Reserve University
participated in experiments on unborn babies of up to 21 week's gestation who were aborted by
hysterotomy. The babies were kept alive and then their heads were cut off (the researchers
thought that such a term was too grisly to use, so they employed the words "isolating surgically
from the other organs").
Post-Abortion Fetal Study Stirs Storm. Medical World News, June 8, 1973.
This was the same type of 'research' performed by Russian lab workers who had kept "surgically
isolated" dog heads alive in the early 1950s. The alleged purpose of this "research," as described
in the June 1973 issue of Medical World News, was to ascertain the chemical-processing
capability of live foetal brain cells. The cranial tissues were kept alive for up to 30 minutes by
pumping fluids through the brain. Dr. Adam later presented the results of his experimentation at
an American Pediatric Society symposium, and also published his conclusions in the
Transactions of the American Pediatric Society and the Acta Paediatrica Scandinavica.
New York, USA
The March 15, 1973 Washington Post reported that Dr. Gerald Gaull, Chief of Pediatrics at the
New York State Institute of Basic Research in Mental Retardation,
"... injects radioactive chemicals into fragile umbilical cords of fetuses freshly removed from
their mother's womb in abortions. While the heart is still beating, he removes their brains, lungs,
livers, and kidneys for study."
Joan Wester Anderson. Beyond Abortion Fetal Experimentation. Our Sunday Visitor, April
13, 1975
Australia
An Australian legislator asked a genetics researcher why he used human fetuses in his
experiments rather than monkey fetuses, and the researcher said that
"Monkey fetuses were more precious, as there were fewer of them available than human
fetuses."
Mark Kahabka. Eugenics Revisited Fidelity Magazine, July/ August 1988
Conclusion
Before concluding and drawing an inference, it would be relevant to understand the basic aim
behind legislating with regards to abortion. One can deduce that the foremost objective is to
provide all women with quality abortion care, which is sensitive to their needs by increasing
aspects such as easy accessibility and affordability to safe abortion services. This may be done
by mobilising human, financial and material resources for provision of care and safety in
abortion procedure and increasing the number of trained persons and equipped abortion centers.
In addition to this by efficiency is increased and ambit is broadened by integrating abortion
services into primary and community health centers, increasing investment in public amenities,
broaden the base of abortion providers by training paramedics to do first trimester abortions,
simplifying registration procedures, link policy with up-to-date technology, addressing the need
for appropriate post-abortion care etc.
In India, legalising abortion through the MTP Act, which was done in 1971 has not yielded the
expected outcomes. Despite the existence of moderate policies, the majority of women still resort
to unsafe abortion. This contributes substantially to the burden of maternal morbidity and
mortality.
References
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