The Tussle between Woman’s Right to Reproductive Choices and the State’s Interest in Regulating Abortions- A Comparative Analysis of Medical Termination of Pregnancy in India and the U.S.A.

  • Vidisha Joshi
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  • Vidisha Joshi

    LLM student at Hidayatullah National Law University, Raipur, India

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Abstract

The development of woman’s rights led to the recognition of the right to reproductive choices as a part and parcel of right to privacy, and thus, protected by the Constitution. However, exercise of such right cannot be allowed without certain restrictions as the state also has an obligation to protect the life of an unborn child. Therefore, a clear balance of these two aspects needs to be maintained; an imbalance on the either side could prove to be chaotic. The Supreme Court of the United States of America has evolved the principle for balancing these two scales from the trimester framework to the undue burden test. The undue burden test examines whether a particular law creates an undue burden on the exercise of the right of reproductive choices of the woman before the period of viability (before the period wherein the foetus cannot survive outside the womb, either naturally or by medical support). After the period of viability, the state has an inherent interest in protecting the life of an unborn child, and thus, abortion is restricted, except to save the life of the mother. However, in India, the judiciary has not developed a standard test to examine whether the balance has been achieved while restricting the right of woman to reproductive choices vis-à-vis the Medical Termination of Pregnancy Act, 1971. The present study, thus focusses on analyzing how far India has maintained the balance between woman’s right to decide for her own body and the state’s legitimate interest in protecting the life of an unborn child, in comparison with the United States and what lies ahead.

Type

Research Paper

Information

International Journal of Law Management and Humanities, Volume 4, Issue 4, Page 2448 - 2462

DOI: https://doij.org/10.10000/IJLMH.111608

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (https://creativecommons.org/licenses/by-nc/4.0/), which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.

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