Report No. 42

16.41. Position in Sweden.-

Sweden is a notable example where abortion has been allowed on what are now known as 'socio-medical' reasons. Under the Swedish law (as it stood in 1962), abortion is permitted in the following circumstances1.-

(1) If due to a woman's illness, physical defect or weakness, child birth would entail serious danger to her life or health, i.e. on medical reasons;1

(2) If with regard to a woman's conditions of life and other circumstances there is reason to assume that her physical or psychic strength would be seriously reduced through child-birth and child care, i.e. on medico-social reasons;

(3) If a woman has become pregnant as the result of rape, other criminal coercion or incestuous sexual intercourse, if she is insane or an imbecile, or under 15 years of age at the time of the fertilizing coition, i.e., on humanitarian reasons;

(4) If there is reason to assume that the woman or the father of the unexpected child would transmit to their offspring hereditary insanity, imbecility, a serious disease or a serious physical handicap; i.e. on eugenic reasons. An abortion for the reason of any such hereditary defect in the mother is contingent on sterilization simultaneously with the abortion unless sterilization appears risky or unnecessary (e.g. with regard to the woman's advanced age or because she is to be permanently committed to an institution);

(5) An abortion for reasons other than disease or physical defect in the woman may not be performed after the twentieth week of pregnancy, but the National Board of Health may make exceptions and authorise the performance of the operation before the end of the twenty-fourth week.

The procedure in Sweden appears to be dilatory. About 85 per cent. of all legal abortions in Sweden are authorised by the Royal Medical Board in Stockholm, on the basis of written reports by physicians and social agencies throughout-the country. Consequently, a substantial proportion of legal abortions is performed after the third month. These late abortions contribute heavily to the total number of deaths.2

1. This aspect is developed fully in a book by Professor Ekbald, Induced Abortion on Psychiatric grounds.

2. Report of the Law Committee on the Legalisation of Abortion (1966), p. 21, paras. 2 to 32.

16.42. Position in Soviet Russia.-

The law of abortion in Soviet Russia has now (1965) been made liberal after undergoing major fluctuations during the last 50 years. Soviet women have been given freedom to decide, by themselves, the question of their motherhood. The abortion operation is allowed to all women wishing to undergo the operation, except where the pregnancy is over 12 weeks or there is inflammation of certain parts, or the existence of infectious diseases such as flue, quinsy, etc. and high temperature etc. If necessary a woman could be operated for abortion at a qualified medical institution that guarantees her the maximum innocuousness of the operation.

16.43. Position in Japan.-

In Japan, the matter is regulated by the Eugenic Protection Law which is a very elaborate piece of legislation. It is unnecessary to refer in detail to its provisions. The primary object of the law is to prevent the increase of inferior descendants from the eugenic point of view and to protect the life and health of the mother as well. Provision is made for what is known as "Eugenic Operation" to be performed by a surgeon with the consent of the person concerned and his or her spouse. There is provision for artificial interruption of pregnancy under various circumstances, including pregnancy caused by rape, and also where the mother's health may be affected seriously by the continuation of the pregnancy either from the physical, or the economic view point.

1. Japan's Law No. 156 of July 13, 1948, as extracted in the Report of the Committee to study the question of Legalisation of Abortion (1966), pp. 102 to 106.

16.44. Position in the U.S.A.-

The past few years have seen a definite trend towards liberalisation of the laws relating to abortion in the U.S.A. The position, however, varies from State to State. The New York law, which is the most radical, states that an abortion is justifiable when done with the woman's consent by a 'duly licensed physician, acting (a) under the belief that such act is necessary to preserve her life, or (b) within 24 weeks from the commencement of her pregnancy'. A woman performing abortion upon herself in similar circumstances is also justified. There is no residence requirement.

16.45. Liberalisation of the penal law proposed.-

The penal prohibition of abortion seems to be based on four main grounds, (i) protection of the life of the unborn child, (ii) protection of the society's interest in the continuation of the race, (iii) sentimental objection to the destruction of a potential human life and (iv) protection of the life and health of the mother. On all these matters, opinion is sharply divided and no useful purpose will be served by any elaborate discussion of the various views. General opinion, however, is definitely in favour or attaching paramount importance to the life and health of the mother over all other considerations. It seems to us that the decision whether to bear a child or not must remain with the mother, but a distinction could be drawn between destruction of a nearly full grown child in the womb and termination of pregnancy at an early stage.

As Lord Riddell said,1 "the destruction of a full grown child is a revolting affair, whereas the abortion of an early foetus differs little from the removal of a uterine tumor." Abortion procured by a qualified physician within the first three months of pregnancy is attended with hardly any risk to the life or health of the woman. If the pregnancy is within this period, the woman must have full freedom to have it terminated by a qualified physician. If, however, the duration of the pregnancy exceeds three months, risk to the life and health of the woman is much greater, and termination of the pregnancy may justifiably be permitted only in the circumstances and under the conditions set out in the Bill now before Parliament.2

1. Lord Riddell Medico Legal Problems, (1929), p. 35, cited by Williams, "Sanctity of Life", (1958), p. 209.

2. One of us, Mrs. Anna Chandi, is of a different view set out in a Note appended to this Report.

16.46. Section 312 to be amended.-

We, therefore, recommend that, so far as the Code is concerned, a proviso may be added to section 312 as follows:

"Provided that it shall not be an offence under this section if the miscarriage is caused within three months of the commencement of pregnancy by a registered medical practitioner with the consent of the woman."

As a consequential amendment, the Explanation to the section may be modified to read.-

"Explanation.- A woman who causes herself to miscarry when she has been pregnant for more than three months is within the meaning of this section."

16.47. Section 31.-punishment provision to be amended.-

Section 313 rightly makes it a very serious offence to cause miscarriage in a pregnant woman without that woman's consent. The maximum punishment of imprisonment for life, however, seems to be excessive. We propose that the punishment provision should be modified to "rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

16.48. Sections 314 to 316.- Sections 314 to 316 need no change.

16.49. Section 31.-leaving child with a person.-

Section 317 speaks of exposing a child or leaving it 'in any place' with the intention of abandoning it. It does not apply where the child is left with a person who is incapable of looking after it. We considered the question whether this restriction should be removed, in view of an Allahabad decision.

In that case,1 the mother of an illegitimate child aged about six months left the child in charge of a blind woman in whose company she was, saying that she was going to get food and would return shortly. But actually the mother went to another village and did not return. The blind woman handed over the child at the police station. The mother was prosecuted under section 317, but acquitted. On appeal, Blair J. (with whom Aikman, J. concurred)2 observe.-

"It seems to me that the words of section 317 of the Indian Penal Code should be dealt with in the most literal sense. "To expose" literally means to physically put outside, so that such putting outside involves some physical risk to the person put out. Having reference to a child, it would mean putting it somewhere where it could not receive the protection necessary for its tender age; as, for instances, putting it outside the house, whereby it would be exposed to the risk of climate, wild beasts and the like. The exposure contemplated by the Act was one by which danger to life might immediately ensue.

The explanation of section 317 seems to be to indicate with much clearness the scope and purview of the section and the nature of the evil against which it sought to provide. That explanation provides for the case of injuries actually ensuing that the guilty person shall be punished for the injury so inflicted according to the circumstances under which the injury is done i.e. for murder or culpable homicide, as the case may be. It seems to me that, as the word 'leave' comes in immediate juxtaposition with the word 'expose', the word 'leaving' means leaving in a sense ejusdem generies as the exposure, and indicates an offence only slightly distinguishable from exposing.

It cannot in my judgment mean leaving in the large sense of abandonment, but must be construed in strict connection with the word 'exposure'. The narrower construction of the words 'expose or leave' is much strengthened by the insertion of thosestriking words 'in any place'. I cannot conceive of any possible antithesis to those words unless it be 'with any person'. It seems to me manifest that if the framers of the Act had intended to include in the section a case like the present, they would have used after the expression 'in any place' the words 'or with any person', or some other words to that effect.

I find myself wholly unable to understand where, upon any other construction but the one suggested, a line is to be drawn in cases of abandonment of children. I do not see how in point of law the abandoning of a child in the protection of a person able to take care of it, and willing, perhaps, from kindly motives to do so, but under no legal obligation to take care of it, is to be distinguished from leaving a child, as was done in the present case, in the protection of a blind woman who could and did afford some limited protection to the infant. I have yet to see upon what principle this conviction can be supported. Take the case of a person who leaves a child of eleven years of age at a hill school under the care and protection of a schoolmaster with intent to abandon.

I am quite unable to see where a line can be drawn which would include the one case and exclude the other. Of course there may be cases, as my brother Knox pointed out, of much difficulty and requiring some discrimination. One would have to consider whether putting a child in physical possession of another child wholly incapable of protecting it would come at all within the meaning of the section; whether, for instance, leaving a child of eleven years under the care of another child of five years would fall within the purview of the section. These difficulties do not arise in the present case. Here the blind woman was to some extent capable of protecting, and did protect, the child. She was a person with whom the child had been left."

1. Q.E. v. Mirchia, 1896 ILR 18 All 364 (367).

2. Knox J. dissented.

16.50. Corresponding provision in England.-

We note that the English section on the subject does not contain a limitation that the child must be left in a 'place'. Section 27 of the Offences against the Person Act, 1861, provides that "whosoever shall unlawfully abandon or expose any child, being under the age of two years, whereby the life of such child shall be endangered, or the health of such child shall have been or shall be likely to be permanently injured, shall be liable to imprisonment for any term not exceeding five years." It only emphasises the risk of danger to life or risk of permanent injury to health, and is, therefore, wider than the Indian section.

We do not, however, consider it necessary to expand the section in the Code. Cases not covered by the Code will be taken care of by the Children Act,1 which punishes the act of neglecting or abandoning a child so as to cause unnecessary mental and physical suffering. Though the maximum punishment under that Act is not very high (six months' imprisonment), it should be adequate.

1. E.g. section 41, Children, Act, 1960 (60 of 1960).

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