Father’s Rights In Abortion Cases: A Critical Analysis

KEY TAKEAWAYS

• When it comes to abortion, a hierarchy of rights is present before us which clearly depicts that mother’s rights are given more importance as compared to father’s.
• In India, there are provisions regarding the father’s rights in abortion however, they are not well protected.
• Other than the conflicting views that parents of an unborn child might have, financial responsibility largely remains on the father of the child.
• Various countries are providing equal rights to both parents regarding abortion since both have an equal responsibility.
• In the last notable case of abortion Anil Kumar Malhotra v. Ajay Pisricha (2017), SC held that father’s consent is not required for abortion.
• Therefore, father’s consent has no importance and is not recognised in India yet.

INTRODUCTION

In earlier times, the concept of abortion was encouraged against in our country. Abortion remains to be a sensitive topic despite it being more accepted now. Under Indian law, abortion means expulsion or removal of fetus which is done artificially. The laws on abortion have largely remained unchanged since their creation. Abortion is viewed as an important step towards women empowerment. When IPC was formulated, it was a punishable crime to abort a child, for doctors as well as mothers unless it was to save the life of the mother.

The abortion laws in India which are currently place are consistent with the protection of reproductive rights as envisaged by the International Conference on Population and Development (ICPD) and other similar international agreements. It discourages abortion as a family planning measure but advocates for the promotion of family planning services to prevent unwanted pregnancies while recognizing the importance of providing safe, affordable, accessible, and acceptable abortion services to women who need to end an unwanted pregnancy. The rights of a father are rarely discussed when it comes to abortion. In some cases, parents of the child may have a opposite views and one may want abortion and another may not, however there exists a clear hierarchy of rights which is present in which the mother’s right to abortion prevails over the rights of pre-viable fetuses in all circumstances and the rights of viable fetuses as long as the mother’s health, freely interpreted, is in danger. The legal status of the unborn acts as a catalyst in this discussion. There are various legal frameworks enacted in India, however, the rights of the father in abortion although mentioned, are not correctly protected.

RIGHTS OF FATHER

When it comes to abortion, a mother’s rights are widely known and but there is not much awareness about the father’s rights. This reality remains the same across the world and especially in India.

Paternal rights in an abortion

The role of the fathers usually begins in the case where the mother wants an abortion but the father does not or in a situation where the mother wants to delay the process of abortion but mother wants an early abortion.

Rights of a father in abortion

Both parents contribute to caring for the unborn child. When a child is unborn, the father usually takes care of the mother and the unborn child, financially and emotionally. He protects them and is responsible for any harm caused to them.

It was highlighted in Anil Kumar Malhotra v. Ajay Pisricha (2017),by the Supreme Court of India, that there is no consent required for the father of the child or husband of the mother for the abortion of the child, since there are no provisions mentioned under the Medical Abortion of Pregnancy Act, 1971 regarding the consent of the father for an abortion. Therefore, father has no say case of an abortion which gives rise to the need of an amendment to be made in the abortion laws of India.

THE NEED FOR AMENDMENT

Globally, more importance and recognition is given to the mother’s right and the father’s rights aren’t usually discussed at all, sometimes parents may have conflicting or opposite views on whether to get the child aborted or to give birth to them.

Listed below are certain concerns regarding the rights of the father:

• Consent of the father isn’t required

A father’s consent is not required for abortion in most countries. This is because the mother gets more affected by the pregnancy as it’s her body that carries the child and she has her right to privacy. Commonly, the father’s opinion isn’t even considered on abortion of his own child.

• No need to notify the father about abortion

Consent of a father isn’t required for abortion, however the question that arises is, whether father is to be informed of such abortion. In an American case law, Planned Parenthood v Casey(1992), the court has observed that notifying the husband about the abortion might lay a burden on the pregnant wife. In cases when the wife has not taken the consent of the husband and notifies him about the abortion, she might be risking her safety. Therefore, according to most of the courts across the world, it is not necessary to notify the husband about the abortion.

• Financial obligations remains on the father who wants to remain childless

Fathers are generally liable to provide financially for the needs of the child despite their wish of remaining childless, in some cases. Since there’s also no need to inform the father of the pregnancy, it isn’t discovered until after the birth of the child whether the father was prepared to take the responsibility of a child, financially.

In India, the mother’s rights in abortion are considered to be primary, and the father is left with no rights at all.

Few years back, it was reported that Indonesia, Malawi, Syria, United Arab Emirates, Equatorial Guinea, Kuwait, Maldives, Morocco, South Korea, Saudi Arabia, Japan, Taiwan, and Turkey, all had laws that required that an abortion first be authorized by the woman’s husband. All the mentioned countries provide equal rights to the father and the mother in case of abortion. They consider that it is the decision of both the parents and since they will be taking care of the child further and are liable for the act done by them. Even if the pregnancy is abnormal, consent of both parents should be taken into consideration.

While discussing the abortion issue, it's important to remember that the rights of the father must be respected while making family planning options that include abortion.The rights of father are viewed as secondary to the mother however both have an equal responsibility towards the unborn child.As a result, there is a pressing need to not only increase awareness about this "little talked about" topic, but also to press the Indian judicial system to abandon old preconceptions and give fathers an equal say, if not in all cases, then at least in some. In contemporary times, parents play an equally important role in raising children, and their importance can in no way be reduced by marital disharmony between couples. There should be a law that gives the father the same rights as the mother in deciding whether or not to abort the kid. In many circumstances, women may not want to bear the kid in order to retain their physical form or simply because they do not want to be responsible for the child. What the child's father thinks isn't taken into account. As a result, a revision to the MTP Act about the father's approval for abortion in the pregnancye wise be a highly unbalanced domain is required.

RELATED CASE LAWS

The Supreme Court dismissed an appeal in Anil Kumar Malhotra v. Ajay Pasricha (2017), the Supreme Court dismissed the appeal against the Punjab and Haryana High Court’s decision against the Punjab and Haryana High Court's decision in Dr. Mangla Dogra v. Anil Kumar Malhotra (2011), in which a suit for damages filed by the husband against his wife and doctors for terminating his wife's pregnancy without his consent was dismissed on the grounds that the MTP Act does not require the husband's consent for an abortion. Because it recognises women's autonomy, the Malhotra decision was considered as a step forward in respecting and executing their reproductive rights.

In Nirav Anupambhai Tarkas v. State of Gujarat (2008), the Gujarat High Court affirmed the dismissal of a criminal case filed by a husband against his wife and her family for having an abortion despite his opposition, on the grounds that his consent was not required.

The Supreme Court of the United States in Planned Parenthood v. Danforth (1976) ruled that statutes demanding a spouse's agreement for an abortion are unconstitutional. The Court reasoned that a husband's failure to consent would effectively veto a woman's decision to terminate a pregnancy. While both potential dads and pregnant women have an interest in the decision, only one partner's viewpoint can prevail when the two disagree. Because the woman carries the pregnancy, "the balance weighs in her favour," according to the Court, forbidding the husband from vetoing her decision.

The US Supreme Court Planned Parenthood v. Casey (1992) addressed the question of whether a father has the right to be notified regarding termination of pregnancy and found that such a law was unconstitutional. According to the Court, while most women discuss abortion with their partners, those who don't are considerably more likely to be in violent situations. The Court viewed spousal notification requirements as an unreasonable burden on women who may be concerned about their own or their children's safety.

The court held in Roe vs Wade (1973) that a woman's right to privacy includes her decision whether or not to terminate her pregnancy, but that this right is not absolute and may be limited by the state's legitimate interests in protecting the woman's health, maintaining proper medical standards, and protecting potential human life.The court held that the state may not interfere with or regulate an attending physician's decision, reached in consultation with his patient, that the patient's pregnancy should be terminated prior to the end of the first trimester; from and after the end of the first trimester, and until the point in time when the foetus becomes viable, the state may regulate the abortion procedure only to the extent that such regulation relates to the preservation of the foetus; and unless where it is essential to save the mother's life or health, and the state may prohibit all abortions except those done by physicians who are currently licensed by the state.

CONCLUSION

In the recent years, Indian abortions laws have become quite progressive, women finally have an assurance of their rights in abortion. However, since there’s no mention of father’s rights in an abortion, there’s a long way to go for an ideal law in place for abortion. This may seem fair to some, but since our Constitution of India guarantees equality as a basic human right, minor changes in favour of fathers’ rights are now expected for a step further towards equality. Since both parents are responsible for childbirth, wants of both parents shall be considered for a an abortion.