ABSTRACT
This paper titled “Rethinking the Prosecution of Offences Related to Miscarriage and Infant Exposure in India: A Call for Reform” highlights the urgency and importance of revisiting the legal approach towards addressing cases involving miscarriage and infant exposure. This paper critically examines the existing legal framework, acknowledging its limitations and the adverse impact on women’s rights and well-being. Through a comprehensive analysis, the abstract emphasizes the need for reform that aligns with human rights principles, gender equality, and social justice. By delving into the cultural, societal, and gender dynamics at play, the paper advocates for a nuanced and compassionate approach that recognizes the complexities surrounding these cases. Ultimately, this research calls for legal reforms that prioritize women’s autonomy, dignity, and access to comprehensive support systems, reflecting a commitment to justice, gender equity, and the well-being of women in India.
RESEARCH METHODOLY
The research methodology employed is qualitative research. Through in-depth interviews, case studies, and content analysis, this study aims to delve into the nuanced complexities of prosecutions related to miscarriage and infant exposure in India. By exploring individual experiences, cultural norms, and legal processes, qualitative research allows for a comprehensive understanding of the societal dynamics at play. This approach facilitates the identification of underlying factors contributing to these cases and offers insights into potential reforms.
OBJECTIVE
The research paper aims to comprehensively reconsider the prosecution of offences related to miscarriage and infant exposure in India, guided by a set of objectives. These objectives include enhancing legal clarity and fairness by refining definitions, prioritizing women’s rights through decriminalization and respectful provisions, and promoting maternal and child well-being via accessible healthcare and psychological support. Child protection is emphasized through safe haven laws and parental support. Aligning with international human rights standards ensures non-discrimination. Collaboration with medical experts informs the legal framework. Community education initiatives raise awareness and empathy. These objectives collectively drive a reformed legal landscape that reflects contemporary understanding, empathy, and responsiveness to the complex challenges surrounding miscarriage and infant exposure.
INTRODUCTION
The criminal prosecution of offences related to miscarriage[1] and infant exposure[2] in India has long been a subject of societal concern and legal complexity. Miscarriages, the unfortunate loss of unborn lives, and cases of infant exposure, where newborns are abandoned, raise profound ethical, social, and legal questions. The prevailing approach to handling these cases often fails to strike a balance between justice and compassion, leading to unintended consequences and significant human rights implications. Miscarriages and infant exposure are unfortunate realities faced by women in India. However, instead of receiving support and understanding, many women are subjected to criminal prosecution, exacerbating their trauma. The existing legal framework, driven by societal biases, demands a re-evaluation to protect women’s rights and foster a more empathetic and just approach.
Chapter XVI of the Indian Penal Code 1860[3] addresses grave offenses related to miscarriage, injury to unborn children, exposure of infants, and concealment of births. These offenses are listed in sections 312-318 of the IPC and carry significant legal consequences.
AN OVERVIEW OF THE ISSUE OF MISCARRIAGE AND INFANT EXPOSURE IN INDIA
Miscarriage and infant exposure present substantial and emotionally charged challenges in India, deeply affecting women and families. Miscarriages, characterized by spontaneous pregnancy loss, stem from factors like genetic anomalies and maternal health. Unfortunately, societal stigma often subjects women to undeserved blame and judgment, compounding their distress. Alarmingly, some women even face criminal investigations and prosecutions after miscarriages, intensifying their suffering. Infant exposure, also termed child abandonment, is another distressing issue prevalent in India, often triggered by societal pressures like poverty, limited resources, teenage pregnancies, and stigma attached to single motherhood. Abandoned infants are left susceptible to health risks and potential fatality without prompt care. These issues are highly concerning as they infringe upon fundamental human principles, women’s dignity, and rights, discouraging them from seeking vital medical care and support. This emphasizes a grave concern centred around the rights and potential criminalization of women grappling with such distressing circumstances. To mitigate these concerns, a comprehensive reform must be instituted, emphasizing the protection of women’s rights, access to healthcare, and the promotion of a just and unbiased society as its core principles.
The contemporary legal landscape in India pertaining to miscarriage and infant exposure involves provisions within the Indian Penal Code (IPC), notably Sections 312 to 316, which address pregnancy termination and concealment of childbirth. However, these provisions have been occasionally misused, leading to the unintended criminalization of women who have experienced miscarriages or abandoned infants. The Medical Termination of Pregnancy Act (MTPA)[4] and the Protection of Children from Sexual Offences (POCSO) Act[5] also intersect with these issues. Nevertheless, the vague interpretation of these laws and their inconsistent application can perpetuate societal stereotypes, overlooking underlying complexities. The absence of a clear distinction between deliberate criminal acts and unintended occurrences contributes to an environment where women enduring these traumatic events face potential prosecution. This underscores the necessity for comprehensive reform to ensure fair, equitable, and compassionate legal responses that prioritize women’s rights, healthcare access, and a just society.
This topic holds paramount importance as it concerns the fundamental rights, dignity, and well-being of women facing miscarriage and infants abandoned due to challenging circumstances. The need for reform is evident in the unjust criminalization, stigmatization, and victimization these women endure. Realigning the legal approach with compassion, support, and a focus on addressing root causes rather than punitive measures is imperative. Such reform would not only uphold human rights principles but also contribute to a more equitable and empathetic society, ultimately ensuring the physical and emotional welfare of women and infants while challenging harmful societal norms.
REVIEW OF EXISTING LAWS AND THEIR IMPACT
The current legal landscape in India concerning miscarriage and infant exposure is framed within the Indian penal code (IPC), specifically sections 312 to 316, addressing pregnancy termination and concealing childbirth. Initially designed to combat criminal activities and protect women from harm, these provisions are now being misused, unfairly entangling women in certain situations. Originally encompassing a wide spectrum of pregnancy, childbirth, and infant well-being matters, these laws aimed to ensure maternal health during pregnancy, uphold societal order, and safeguard the rights of infants. The underlying rationale behind implementing these sections was to establish legal measures that balance societal interests and individual rights, with a primary emphasis on safeguarding the well-being of women, children, and maintaining social harmony. However, as societal viewpoints and attitudes have evolved, concerns have emerged over the potential abuse of these provisions to unjustly criminalize women who have endured miscarriages or have been involved in infant exposure cases. Consequently, a growing demand for reform has arisen to establish a more compassionate and just legal approach while upholding the original objectives of these legal provisions. The repercussions of these laws in today’s world are multi-dimensional, accentuating the imperative for comprehensive reform. although initially conceived to safeguard women’s health, protect infants, and ensure public order, their unintended consequences are increasingly evident in contemporary society. In the present global context, these laws can perpetuate negative societal attitudes and stigmas related to women’s reproductive health. The criminalization of women who have experienced miscarriages or infant exposure exacerbates their victimization and psychological distress, discouraging them from seeking essential medical care and support. Additionally, these legal actions divert attention from addressing underlying factors such as poverty, resource scarcity, and societal pressures. In a world that prioritizes human rights, gender equality, and empathy, the misapplication of these laws contradicts these principles, raising concerns about equity, justice, and the preservation of women’s dignity. Consequently, there is an urgent call for reform to ensure a legal approach that aligns with contemporary values, emphasizing empathy, fairness, and inclusivity. This underscores the necessity for a legal framework that is compassionate, equitable, and sensitive to the complex dynamics of miscarriage and infant exposure in today’s evolving society.
HUMAN RIGHTS PERSPECTIVE
Various laws and provisions in India ensure the protection of women’s and children’s rights. From a human rights perspective, prosecuting cases involving miscarriage and infant exposure requires a delicate balance between safeguarding individual rights and those of women and children. Article 21 of the constitution[6] grants women the fundamental human right to autonomy over their bodies, reproductive choices, and healthcare. Criminalizing miscarriage or pregnancy-related complications could impede these rights, deterring women from seeking necessary healthcare and safety measures, risking their well-being. Balancing the rights of both women and children is imperative, necessitating prosecution only for clear violations of the law. Unborn infants possess rights akin to individuals. They have an inherent right to life, health, and survival. Any exposure or abandonment undermines their chances of development and survival. Regardless of circumstances, infants are entitled to fundamental human rights, encompassing health, non-discrimination, healthcare, and equality. The supreme court in STATE OF PUNJAB V. RAMDEV SINGH[7] Emphasized the importance of protecting the rights of the child and highlighted the need for stringent measures against those involved in such offences. Strengthening and intensifying penalties for rights violations are crucial to discourage potential offenders and protect the well-being of women and children. In essence, upholding the rights of women, children, and unborn infants demands a nuanced approach that respects individual autonomy while ensuring their collective well-being. In case of Akhil Kumar v. State of MP [8], a woman had a pregnancy of 24 weeks out of unlawful relations and a doctor applies an injection for termination of the pregnancy but the woman died the next day without miscarriage. It was held that doctor is amounted to voluntarily causing miscarriage under section 312 of the act with section 511[9] as it is presumed that he knows the possible effect of the medicine. In this case the rights of women are violated.
In case of Tulsi Devi v. State of Uttar Pradesh[10], a pregnant woman kicked by an accused woman in her abdomen resulting in miscarriage. Here accused woman convicted under section 313 of IPC.
In case of Jacob George v. State of Kerala[11], the accused was held liable for compensation and was also prosecuted. In conclusion, examining offences related to miscarriage and infant exposure through a human rights lens underscores the intricate balance between upholding individual rights, particularly those of women, and ensuring the protection and welfare of infants. The human rights perspective emphasizes the fundamental principles of autonomy, dignity, equality, and justice. This research has revealed the necessity of a comprehensive approach that acknowledges the complexity of these issues. Safeguarding women’s autonomy over their bodies and reproductive choices while also prioritizing the safety and well-being of infants requires a delicate equilibrium. Striking this balance necessitates a legal framework that is grounded in international human rights standards, ensuring due process, non-discrimination, and the best interests of all parties involved. Moreover, the findings underscore the importance of preventive measures, including public awareness campaigns, comprehensive sex education, and accessible healthcare, to mitigate the occurrence of such offences. Rehabilitation and support systems for women facing miscarriage-related charges are essential to address their physical and psychological well-being. Ultimately, this research highlights that the pursuit of justice must be inextricably linked with the principles of human rights. By prioritizing the rights and welfare of women and infants, while promoting a culture of understanding and support, societies can create an environment where miscarriage and infant exposure cases are dealt with sensitively and justly. As legal systems evolve, it is imperative to ensure that they reflect not only the letter of the law but also its spirit: a commitment to the protection and promotion of human rights for all.
SOCIETAL AND CULTURAL FACTORS
Cultural norms[12] and societal attitudes[13] hold immense sway over the experiences of women during pregnancy and childbirth in India. These deeply ingrained beliefs, often steeped in tradition and expectations, have far-reaching implications for women’s rights, health, and legal standing. This paper critically examines how these norms contribute to the criminalization of women in cases of miscarriage and infant exposure, and looks into the role of patriarchy, stigma, and discrimination in shaping the legal response to these sensitive issues. In India, cultural norms have historically positioned women as the custodians of family honour and the torchbearers of lineage continuity. This societal perspective places immense value on women’s reproductive role, casting pregnancy and childbirth as essential components of a woman’s identity and purpose. The pressure to fulfil these roles flawlessly can be stifling, causing women who experience pregnancy complications or miscarriages to bear not only physical pain but also the burden of cultural disappointment and stigma[14]. Consequently, cases of miscarriage and infant exposure are often met with suspicion, judgment, and in some instances, criminalization. Patriarchal structures compound the criminalization of women by disproportionately attributing reproductive outcomes to women’s actions and decisions. In a patriarchal society, where familial authority often rests with men, women’s autonomy over their bodies is frequently curtailed. Decision-making power, from medical choices to reproductive health, can be vested in male family members or societal elders. This dynamic effectively disempowers women and erodes their agency, leading to a scenario where miscarriages or infant exposure incidents may be attributed solely to the woman’s supposed failure to uphold her designated role. Stigma further exacerbates the criminalization of women in these cases. Miscarriages, often attributed to “bad luck” or the woman’s actions, can result in societal ostracization and psychological distress. Stigma becomes a powerful force that shapes not only women’s perceptions of themselves but also their interactions with their families and communities. When coupled with legal action, humiliation can create a vicious cycle that pushes women into desperate situations, such as infant exposure, to escape social disgrace and discrimination. Discrimination against women, particularly those from marginalized communities, amplifies the injustice. In the case of Laxmi Mandal v. Deen Dayal Harinagar Hospital[15] the broader societal and cultural factors affected woman’s access to proper health care during pregnancy. Socioeconomic disparities intersect with cultural biases, leading to unequal access to quality healthcare and support systems. Women from disadvantaged backgrounds may lack the resources or education to seek timely medical care during pregnancies, making them more susceptible to miscarriages. These women are then disproportionately targeted by the legal system, perpetuating a cycle of inequality and further victimization. The legal response to miscarriage and infant exposure is also moulded by these cultural norms and biases. This encompasses the issue of sex-selective abortion and child abandonment in India. Historically, certain societies exhibited a preference for male offspring, often leading to the abandonment of female infants. In cultures where gender holds paramount significance, the birth of a girl child often resulted in abandonment due to cultural and societal pressures. Moreover, individuals may opt for the contentious path of sex-selective abortion to achieve a desired gender outcome. The judgement of Supreme court of India in the case of Voluntary Health Association of Punjab v. Union of India revolves around the social evil of sex selective abortion and grave need to undertake measure to resolve the same[16]. Legal frameworks, rooted in patriarchal values and societal expectations, may fail to address the underlying complexities of these issues. Women who experience miscarriages or resort to infant exposure are often viewed as criminals, rather than individuals navigating challenging circumstances within a restrictive social context. This narrow legal interpretation disregards the socio-cultural factors that contribute to these incidents and the need for comprehensive support systems. To rectify this complex web of cultural, societal, and legal challenges, a multi-pronged approach is imperative. Legal reforms must be enacted that take into account the realities of women’s lives, acknowledging the influence of patriarchal norms, stigma, and discrimination. Comprehensive sex education programs can challenge prevailing stereotypes and empower women to make informed reproductive choices. Public awareness campaigns can help debunk myths surrounding miscarriage and expose the damaging impact of stigma. Furthermore, healthcare access needs to be democratized, especially for marginalized women, to ensure that timely and appropriate medical care is available during pregnancies. Support systems, both legal and social, should be designed to provide women with the necessary resources and guidance, rather than criminalizing them for their circumstances.
constitution of India
Article 21 of the Constitution says that Person shall be deprived of his life and person liberty except according the procedure established by law. Here Article 21 may be interpreted meaning that the word ‘person’ applies to all human beings including unborn persons and therefore the state cannot discriminate persons are foetus by less or no protection than other persons. Therefore, the is bound to protect the life of unborn child from unjust destruction provide equal protection on the same footing as a living person as far as possible. An unborn child has fundamental right only when it is considered ‘person’ otherwise not. The concept of person is very difficult to define in legal parlance, a person is a being whom the law regards as capable rights and duties although this view has been criticized. In number of circumstances status of legal personality is recognized to unborn child. Article 21 of the Constitution of India provides personal liberty which may include the liberty of conceiving a child and giving birth to it and simultaneously it implies liberty to terminate the pregnancy, if a woman dislikes to continue it. The absolute discretion whether to conceive or not is limited by Indian Penal Code, 1860 and the Medical Termination of Pregnancy Act, 1971[17] allow abortion under exceptional circumstances only. When there is certain serious problem to mother’s life or to unborn child and chances of child to born alive are rare, the unborn child may lose its life under the present law. In India to abort the child is regulated by Medical Termination of Pregnancy Act, 1971 and Indian Penal Code. Indian law has recognized the right of women to lead a healthy life with dignity. Her decision to having or not to having a child should be final. The law has considered right to personal liberty of a woman to give birth of a child or not and priority has been given to the rights of women over the interest of foetus. In 2008, Court protected the right of health of women to allow her to abort the child of twenty-four weeks. But the Supreme Court decline to permit 37-year-old women[18] to terminate her 24-week-old foetus suffering from Down Syndrome after a medical board opined that chances of survival on birth were high. The court rejected the plea by ordering that everybody knows that children with Down syndrome are undoubtedly less intelligent, but they are fine people.[19] Recently of Supreme Court[20] allowed to abort a foetus of beyond 20 weeks of a rape survivor taking into consideration of her physically, medically, psychological aspects. The decision raised discussions between the right of child to live and the right of the mother to undergo termination of pregnancy. The Constitution of India does not allow taking one’s life and even in the case of an unborn child status will be same. However, life in India is regarded to have started at the time of conception of the child itself. Moreover by 23rd week the foetus would already have formed limbs and it would amount to killing a child. But the Court examined the circumstances in which the girl became pregnant and keeping into physical, financial, emotional and psychological repercussions of unwanted pregnancy, allow the minor girl to go for termination of pregnancy. In India, all abortion cases cover under the Medical Termination of Pregnancy Act 1971.abortion are allowed up to 20 weeks of pregnancy on the medical opinion of two doctors. (ALL INDIA BAR REVIEW 2011)
IMPACT ON WOMEN
The prosecution of offences related to miscarriage and infant exposure in India has profound and multifaceted implications for women. These legal proceedings, often influenced by societal and cultural factors, can significantly impact women’s physical and mental well-being, reproductive rights, autonomy, and social standing. Examining the effects on women provides a deeper understanding of the complex dynamics at play and underscores the need for a nuanced and rights-based approach to address these issues.
Firstly, the emotional toll on women facing prosecution for miscarriage or infant exposure cannot be understated. Sumita Mukherjee v. state of Madhya Pradesh is a case of criminal appeal against the conviction of the appellant for causing miscarriage without the consent of the women, here the element of emotional distress comes into picture.[21]Legal proceedings in such cases can exacerbate existing emotional distress and trauma, potentially leading to severe mental health repercussions. Women who have experienced the loss of a pregnancy or have resorted to infant exposure due to desperate circumstances may already be grappling with grief, guilt, and anxiety. The prospect of criminal charges and the stigma associated with them further compound these emotional challenges, leaving lasting scars on women’s well-being. Societal stigma and discrimination also cast a long shadow over women facing prosecution in such cases. Women who are targeted by legal action for miscarriage or infant exposure may become the subject of judgment, gossip, and ostracization within their communities. This social isolation can lead to a breakdown of support systems, leaving women emotionally and financially vulnerable. The stigma attached to criminal cases can further marginalize women, affecting their marital prospects, social interactions, and access to economic opportunities. Such consequences perpetuate gender inequality and reinforce harmful stereotypes.
The impact on women’s access to healthcare is another critical concern. Legal proceedings may inadvertently discourage women from seeking proper medical care during pregnancies or complications, thereby endangering their health and well-being. Fear of legal scrutiny might compel women to avoid medical facilities altogether, exacerbating their vulnerability to medical risks and complications. The unintended consequence of deterring women from seeking essential healthcare services underscores the need for a legal framework that promotes rather than inhibits proper medical attention during pregnancy. Economically, the prosecution of offences related to miscarriage and infant exposure can disrupt women’s lives and livelihoods. Legal proceedings can result in the loss of employment, educational opportunities, or even family support. The financial burden of navigating the legal system, including legal fees and potential penalties, can exacerbate existing economic disparities. For women from marginalized backgrounds, these consequences can have long-lasting effects on their financial independence and social mobility, perpetuating cycles of poverty and gender-based disadvantage. Family and community dynamics can also be strained due to legal proceedings related to miscarriage and infant exposure. The mere initiation of legal action can strain family relationships, leading to emotional distress and conflict. In cases of infant exposure, familial and societal pressures may have driven women to desperate measures. The involvement of legal authorities can further intensify tensions within families and communities, affecting women’s social support networks and exacerbating their vulnerability.
Addressing the impact of prosecutions on women necessitates a comprehensive and rights-based approach. Legal reforms should be grounded in human rights principles, ensuring that women’s autonomy, dignity, and well-being are central considerations. Awareness campaigns should be conducted to challenge stigma and promote understanding of the complex circumstances that may lead to miscarriages or infant exposure. Support systems, both legal and social, should be established to provide women with the resources, counselling, and guidance needed to navigate these challenging situations. Furthermore, a just legal response requires recognizing the broader societal context and cultural norms that influence these cases. Efforts should be directed towards sensitizing legal professionals and authorities to the unique challenges women face, particularly those from marginalized backgrounds. Balancing the pursuit of justice with safeguarding women’s rights is imperative to prevent further harm and to ensure that women are not unfairly penalized for circumstances often beyond their control. In conclusion, the prosecution of offences related to miscarriage and infant exposure in India significantly impacts women’s lives across multiple dimensions. Emotional trauma, curtailed reproductive autonomy, societal stigma, restricted healthcare access, economic consequences, strained family dynamics, and legal vulnerability are among the critical concerns. Addressing these impacts requires a comprehensive approach that aligns with human rights principles, challenges harmful cultural norms, and provides robust support systems for women. By recognizing the complexities of these cases and prioritizing women’s rights and well-being, India can move towards a legal framework that upholds justice while safeguarding the dignity and autonomy of women.
COMPARATIVE ANALYSIS
The treatment of miscarriage and infant exposure exhibits striking variations among different countries, a reflection of their distinct healthcare systems, cultural norms, and legal frameworks. In India, addressing miscarriage involves a combination of medical interventions and emotional support. Healthcare facilities offer essential care to manage miscarriages and ensure maternal well-being, employing medical or surgical procedures based on pregnancy stage and circumstances. Additionally, counselling services aid couples in coping with the emotional aftermath, helping them navigate the psychological toll and chart a path forward Conversely, infant exposure in India presents challenges concerning neglected or abandoned infants. Government agencies and non-governmental organizations collaborate to extend temporary care and rehabilitation, prioritizing infant safety, health, and eventual family reunification or suitable long-term placements. In stark contrast, alternative strategies emerge in other nations. Western countries, exemplified by the United States, emphasize both medical treatment and emotional support for miscarriages. Accessible medical care, encompassing surgical options, if necessary, accompanies counselling services that address the holistic impact of the experience. In the context of infant exposure, some countries have instituted “safe haven” laws. These laws permit parents to anonymously leave infants at designated locations, like hospitals or fire stations, with the intent of preventing unsafe abandonment. Such infants subsequently receive medical attention, protection, and efforts to secure an appropriate home, either through adoption or foster care. Meanwhile, Nordic nations like Sweden adopt a comprehensive approach. Their robust social welfare system extends support during miscarriage, while generous parental leave policies grant grieving parents the time needed for emotional recovery. For infant exposure prevention, these countries establish an array of proactive measures, including family counselling, parental education, and financial aid, all aimed at minimizing circumstances leading to infant exposure due to social or financial stress. Regardless of location, legal frameworks hold significant sway in shaping the response to miscarriage and infant exposure. Legal considerations, encompassing reproductive health, parental rights, and child welfare, are pivotal in determining the approach taken. Overall, irrespective of the nation, a shared thread is evident – a recognition of the vital roles played by medical care, emotional support, and legal safeguards for women, families, and infants facing these sensitive issues. The offense of miscarriage and infant exposure is a complex issue that varies across different countries, shaped by diverse legal systems, cultural norms, and societal values. In India, the offense of miscarriage is governed by the Indian Penal Code 1860, with provisions criminalizing acts that cause miscarriage without the woman’s consent or without medical necessity. These laws aim to protect women’s reproductive rights and safety. Regarding infant exposure, Indian law criminalizes the abandonment or neglect of infants under various sections of the Indian Penal Code. The focus is on safeguarding the welfare of the child and ensuring proper care and protection. In other countries, the legal approach to these offenses differs. Western countries often prioritize reproductive rights and provide access to safe and legal abortions, reducing the need for criminalization of miscarriage. Infant exposure laws also vary widely; some countries have “safe haven” laws allowing parents to leave infants at designated locations without legal repercussions, while others criminalize abandonment or neglect. In Nordic countries, comprehensive social welfare systems and family support programs contribute to reducing instances of both miscarriage-related offenses and infant exposure. These nations prioritize prevention, offering robust healthcare, parental leave, and counselling services to families. It’s essential to note that cultural and legal contexts significantly influence the perception and treatment of these offenses. While some countries focus on legal consequences, others emphasize prevention, healthcare, and support. Overall, the approach to miscarriage and infant exposure offenses reflects a blend of legal measures, societal values, and efforts to ensure the well-being of women, families, and infants.
India should consider revising specific guidelines and provisions to enhance the protection of human rights and women’s rights. The country could explore implementing safe haven practices inspired by Western countries to ensure the safety of infants, along with adopting comprehensive social welfare measures similar to those in Nordic countries. These changes could contribute to making India a more progressive and improved nation.
PROPOSAL FOR REFORMS
The Indian Penal Code was initially introduced in 1860, and since then, numerous amendments have been incorporated into the legislation to enhance the well-being and interests of the populace. Despite these changes, the code remains deficient in incorporating modern revisions. Therefore, it is imperative to enact reforms concerning miscarriage and infant exposure laws. These reforms are essential to safeguard women’s rights, ensure the well-being of both mothers and children, and effectively tackle the intricacies inherent in these delicate matters. The current legal framework lacks precision, neglects the safeguarding of women’s rights, and inadequately addresses the multifaceted nature of such situations. Consequently, several factors underscore the necessity for reform:
- Women’s Rights and Autonomy: The current IPC provisions related to miscarriage and infant exposure may infringe upon women’s reproductive rights and autonomy. Reform is needed to ensure that women’s choices and bodily autonomy are respected, and they are not subjected to undue legal scrutiny or criminalization for events beyond their control.
- Medical Advances and Understanding: The medical understanding of miscarriage and infant health has evolved significantly. Outdated legal definitions and criteria may not align with current medical knowledge. Reforms can incorporate up-to-date medical perspectives, ensuring that legal definitions and consequences are accurate and fair.
- Preventing Criminalization of Medical Complications: Many cases of miscarriage and infant exposure are due to medical complications or social vulnerabilities. The current IPC provisions can inadvertently criminalize women in these circumstances. Reforms can distinguish between intentional harm and unintended outcomes, preventing unjust criminalization of women facing difficult situations.
- Public Health Approach: Reforms can emphasize a public health approach over punitive measures. Providing support, education, and access to proper healthcare can help reduce the incidence of miscarriage and infant exposure. This approach aligns with a broader societal interest in promoting maternal and child well-being.
- Safe Haven for Infants: The existing legal framework may deter parents from safely surrendering unwanted infants due to fear of legal consequences. Reforming laws to include “safe haven” provisions can encourage parents to place infants in designated facilities, preventing harm to the child and avoiding criminal actions against parents.
- Women’s Psychological Well-being: Criminal charges related to miscarriage or infant exposure can have severe psychological effects on women. Reforms can prioritize providing mental health support and counselling to women in such distressing situations.
- International Human Rights Standards: Reforms can align the IPC with international human rights standards that emphasize women’s rights, child protection, and the need to avoid discrimination and stigmatization.
- Legal Clarity and Consistency: The current IPC provisions might lack clarity, leading to inconsistent interpretations and application by law enforcement, prosecutors, and the judiciary. Reforms can provide clearer guidelines, reducing confusion and ensuring consistent enforcement.
Below are my thoughts and recommendations regarding the necessity for reform:
- I propose the addition of a proviso to Section 312, stipulating that the act would not constitute an offence if a miscarriage is performed within the first three months of pregnancy by a registered medical practitioner
- The punishment under Section 313 should be changed from life imprisonment to rigorous imprisonment for up to 10 years and fine as the maximum penalty
- The unnecessary explanation under section 317 should be deleted
- I suggest lowering the age limit for a child protected from exposure and abandonment under Section 317 to 5 years from the current 12 years. This modification aims to ensure enhanced care and safeguarding for younger children.
- Section 318 can be deleted as the same offence can be punished under section 201 of IPC
- I support the enactment of safe haven laws
- Advocate inclusion of Section 318: Criminalize unjustified denial of essentials, endangering life or health of another.
CONCLUSION
In conclusion, the revaluation of the prosecution of offences related to miscarriage and infant exposure in India necessitates a compelling call for reform. The existing legal framework often falls short in accommodating the intricate dynamics and evolving societal norms surrounding these sensitive matters. Reform is imperative to align the law with contemporary perspectives, placing emphasis on women’s rights, maternal well-being, and child protection. By decriminalizing miscarriage and introducing safe haven provisions, the legal system can better reflect the compassion and understanding required in such cases. Moreover, implementing comprehensive prenatal care, clear legal definitions, and psychological support for affected women acknowledges their unique needs and vulnerabilities. These reforms also mirror international human rights standards that prioritize individual autonomy and child welfare. Rethinking the prosecution of these offences not only ensures legal fairness but also sends a message of societal empathy and support. By engaging medical practitioners and stakeholders, a holistic approach can be cultivated that seeks to prevent unwanted incidents while providing a safety net for those affected. In this transformational era, where social progress and inclusivity are at the forefront, the call for reform resonates as an imperative step towards a more compassionate and equitable legal system. It beckons the nation to uphold the rights of women, protect the well-being of both mothers and infants, and foster a culture of understanding and support.
[1] A miscarriage is the sudden loss of a pregnancy within the first 20 weeks of gestation. Up to 1 in 5 women who know they are pregnant will miscarry.
[2] the ancient practice of infant exposure via the abandonment of a newborn within the first week of life.
[3] India Code: Indian Penal Code, 1860
[4] Medical Termination of Pregnancy (Amendment) Act, 2021 (legalserviceindia.com)
[5] India Code: Protection of Children from Sexual Offences Act, 2012
[6] No person shall be deprived of his life or personal liberty except according to a procedure established by law
[7] State Of Punjab vs Ramdev Singh on 17 December, 2003 (indiankanoon.org)
[8] Akhil Kumar vs State Of U.P. on 4 January, 2021 (indiankanoon.org)
[9]Section 511 in The Indian Penal Code (indiankanoon.org)
[10] Tulsi Devi v. State Of Punjab | Punjab & Haryana High Court | Judgment | Law | CaseMine
[11] Dr Jacob George vs State Of Kerala on 13 April, 1994 (indiankanoon.org)
[12] The standards we live by.
[13] The ideas, values and beliefs held by people in a particular society
[14] Something that has a negative association attached to it
[15] Laxmi Mandal vs Deen Dayal Harinagar Hospital & … on 4 June, 2010 (indiankanoon.org)
[16] Voluntary Health Ass. Of Punjab vs Union Of India & Ors on 4 March, 2013 (indiankanoon.org)
[17] mtp-act-1971.pdf (indiacode.nic.in)
[18] Kanojia Ravi, Rights to unborn baby Vs. the social and legal constraints parents. Birth of a new debate. Indian Asso. Paediatric Surg. 2008 Jul-Sept. 13 (3): 92-93.
[19] The Tribune, 1 March, 2017, p. 10.
[20] Suchita Srivastava Vs. Chandigarh Administration, AIR 2010 SC 235.
[21] Smt. Sumita Mukherjee v. The State Of Madhya Pradesh | Madhya Pradesh High Court | Judgment | Law | Case Mine