Balancing Reproductive Rights and Child Protection: Safeguarding the Future of Children Born from Unwanted Pregnancies

Published on 28th January 2025

Authored By: Tashu Chauhan
Bharati Vidyapeeth, Pune

Abstract

Reproductive rights and autonomy have long been a contentious and debatable topic across the world. It is a complex issue that cannot be viewed in black and white terms, but rather in varying shades of grey. Questions such as: Do we truly possess full reproductive autonomy? Should abortion be allowed even after 20-24 weeks of pregnancy? Whose rights should take precedence—the rights of the unborn child or those of the pregnant woman?—continue to fuel intense discussions about reproductive rights and abortion policies globally. However, a critical and often overlooked aspect of these debates is the fate of a child born from an unintended pregnancy, particularly when a mother is denied an abortion and decides to place the child for adoption. This scenario brings forth difficult, morally charged questions: Can someone be forced into parenthood against their will? If so, will they be emotionally and psychologically equipped to care for the child, and what are the consequences of bringing a child into the world when the parent feels unprepared? Furthermore, what does the future hold for a child placed into foster care or the child welfare system? Can we guarantee a quality of life for these children, or will they face a system that lacks adequate resources and support? Is the government adequately prepared to care for these children? What alternatives exist to ensure the child has a healthy, fulfilling life?

The answers to these questions are complex and cannot be reduced to a simple “yes” or “no.” Each situation is influenced by personal, social, and systemic factors, including the emotional well-being of the parent, available support systems, and the effectiveness of foster care services. Discussions on reproductive rights and abortion must consider these broader social, ethical, and practical realities. Policy decisions should prioritize the best interests of both parents and children, recognizing that reproductive autonomy requires a nuanced approach, as each case is unique and cannot be addressed with a one-size-fits-all solution.

This paper examines the relationship between access to abortion services and the dynamics of child welfare system.

Introduction

The relationship between access to abortion services and the dynamics of the child welfare system is a critical intersection of public health, social policy, and ethics. Reproductive rights encompass the right to access contraception, abortion, maternal healthcare, and education. These rights are central to personal autonomy, gender equality, and public health. Denying access to these rights can lead to unplanned pregnancies, contributing to socioeconomic challenges for families and placing additional pressure on child welfare systems.

Other leading factors resulting in children being placed for adoption may include societal norms, stigma surrounding childbirth outside of marriage, pregnancies among underage individuals, or unexpected pregnancies discovered late—often between 20 and 24 weeks—due to health issues or delayed awareness. Married couples may also face situations where they are unprepared to have children due to financial constraints or other personal reasons. Policies restricting abortion access correlate with higher birth rates among at-risk populations, potentially overwhelming foster care resources. Unfortunately, the fate of children entering the foster care system can often be harsh, highlighting the need for thoughtful policies and robust support systems and abortion laws to address these complex challenges.

It is unfair for a person that didn’t even wanted a child to force them to be a parent, one cannot to compelled to become a parent even if the child is born but it is also unjust to kill a child who is almost developed. Unfairness extends to the child born out of unwanted pregnancy too as they have to face a big risk in their life. The question at last is about what is the moral thing to do, to abort the child, to keep the child or to give it up for adoption and the answer to all these are always going to be different as it depends on the circumstances. This paper aims to discuss the possibilities for both the pregnant woman and the child born out of unwanted pregnancy.

The Evolution of Abortion Laws in India

Prior to 1971, abortion in India was illegal under Section 312 of the Indian Penal Code, 1860[1], except to save a woman’s life. This led to unsafe, illegal abortions, causing high maternal morbidity and mortality. Rape victims were particularly affected, as they were forced to carry pregnancies resulting from assault. 

Recognizing the need for reform, the government enacted the Medical Termination of Pregnancy (MTP) Act, 1971[2], allowing abortions to save a woman’s life, prevent physical or mental harm, or in cases of rape or foetal abnormalities. The Act permitted abortion up to 20 weeks, requiring one medical practitioner’s opinion for pregnancies up to 12 weeks and two for 12-20 weeks.

In 2021, amendments extended the limit to 24 weeks for specific cases, removed the upper gestational limit for foetal abnormalities, and mandated confidentiality for women undergoing abortions, with penalties for breaches.

From Criminalization to Reforms, India has come a long way in terms of reproductive rights and abortion laws. Despite the legal reforms, women still have to face societal stigmas, especially in orthodox regions where a woman is judged, discriminated and are even pressured to carry pregnancies in cases of rape and foetal abnormalities. There are certain challenges too, despite the legal framework unsafe abortions still remain a significant issue and in the implementation of the MTP act the requirement of a Medical Board for abortions beyond 24 weeks can lead to delays, endangering the woman’s health.

Alongside the evolution of abortion rights, solutions for unwanted pregnancies have expanded to include options like adoption, fostering, and comprehensive family planning services.

Key Case Laws shaping the evolution of Abortion Laws

In Suchita Shrivastava & Anr V. Chandigarh Administration[3], the SC included the right to make reproductive choices in ambit of Article 21 of the Indian Constitution and also held that reproductive choices includes both procreation and abstaining from procreation (opting for abortion was also included in this ambit) but the court further noted that the conditions for abortion should be consistent to the MTP act.

In Puttaswamy V. UOI[4], court held that reproductive rights fall under the purview of the right to privacy and information related to a woman’s reproductive choices shouldn’t be leaked without her permission.

Poonam Sharma v. Union of India[5], is a landmark Supreme Court judgment whereby the court allowed a married woman to abort unplanned pregnancy at 26 weeks citing mental & financial reasons.

In X v. Health & Family Welfare Department[6], the court held that unmarried women would be considered within the ambit of Rule 3B of the MTP Act for the purpose of terminating a pregnancy due to change in marital circumstances, between 20-24 weeks.

In R v. UOI, the court allowed termination of pregnancy even after 24 weeks due to change in marital status as the pregnant woman’s husband died.

Global Overview of Abortion Laws[7]

Globally, abortion laws can be categorized into 5 broad groups:-

  1. Prohibited Altogether (21 Countries)
  2. Permitted only to save woman’s life (44 Countries)
  3. Allowed for physical and mental health reasons (47 Countries)
  4. Allowed for Socioeconomic grounds (12 Countries)
  5. Permitted on request (77 Countries)

Restrictive abortion laws can cause enormous harm and are leading factors for unsafe abortions. Unsafe abortions result in approximately 39,000 deaths annually, alongside significant loss of educational and economic opportunities, particularly for those already facing systemic inequalities. In Dobbs v. Jackson Women’s Health Organization[8] the Supreme Court of the United States’ decision to overturn Roe v. Wade[9] and Planned Parenthood V. Casey[10] and the Court ruled that the authority to regulate abortion should be returned to individual states, allowing each state to make its own laws regarding abortion access. This case reignited a heated debate over abortion and reproductive rights. This decision has profound implications, potentially deepening historical marginalization and exacerbating existing social and economic disparities.

Studies ad evidences shows that restrictive abortion laws does not reduce the number of abortions and they have higher unsafe abortion rates and maternal mortality. The average unsafe abortion rate was more than four times greater in countries with restrictive abortion policies in 2011 (26.7 unsafe abortions per 1,000 women aged 15 to 44 years) than in countries with liberal abortion policies (6.1 unsafe abortions per 1,000 women aged 15 to 44 years). The average maternal mortality ratio was three times greater in countries with restrictive abortion policies in 2013 (223 maternal deaths per 100,000 live births) than in countries with liberal abortion policies (77 maternal deaths per 100,000 live births) [11].

The comparative study on abortion laws between different countries shows that restrictions are not the solution to reduce abortions instead there ought to be other solutions to these problems. Some of the solutions are discussed below:

Solutions for Unwanted Pregnancies

What is a better risk for a child born out of unwanted pregnancy to take:- To live with the biological parents that didn’t even wanted them or to have a chance to live with someone willing to accept, love, care and provide for them. The ethical answer would be to end up with someone who would give the child the love that they deserve.  While abortion is one solution for unwanted pregnancies, other alternatives also exist. These solutions ensure that women have the ability to make informed choices about their reproductive health and futures. Below are some key alternatives and solutions:

Central Adoption Resource Authority (CARA)[12] is a statutory body under the Ministry of Women and Child Development (MWCD), Government of India, responsible for regulating and facilitating the adoption of children in India. Established in 1990, CARA’s primary role is to ensure that the adoption process is ethical, transparent, and in the best interest of the children involved. It works to promote the adoption of children who are orphaned, abandoned, or surrendered, ensuring that they are placed in loving and supportive homes. CARA plays a critical role in shaping India’s adoption policies and practices, ensuring that children in need of families are provided with safe and loving homes while respecting the rights of adoptive families.

CARA operates under various laws and acts that govern adoption in India.

  • The Juvenile Justice (Care and Protection of Children) Act, 2015: This act provides the legal framework for the care, protection, and adoption of children in India.
  • The Hague Convention on Intercountry Adoption: Ensures that inter-country adoptions are carried out in the best interests of the child, with safeguards to prevent illegal practices.
  • Domestic Adoption: The Juvenile Justice (Care and Protection of Children) Act, 2015[13], and the Central Adoption Resource Authority (CARA) in India provide a legal framework for domestic adoption. Women can choose adoption as an alternative to keeping an unwanted child. In this system, children are placed in adoptive families after thorough screening and legal procedures.

But Giving up a child into the system and care of government might be a harsh experience for the child as there is no guarantee as to the organisation being able to find a family for the child. Another alternative would be that the pregnant woman herself finds a home for adoption of the unborn child so that just after birth the child will have a home and would not have to suffer.

Foster care is another solution for children who cannot be raised by their biological parents due to several reasons. The child is placed in a family setting for care, protection, and rehabilitation until they can be either reunited with their birth family or placed for adoption.

Foster care can serve as an interim solution while exploring adoption options or as a long-term arrangement for children who may not be adopted.

Prevention of unwanted pregnancies is one of the most essential aspect of managing reproductive health. Effective family planning and contraceptive methods reduce the incidence of unwanted pregnancies and provide women with the ability to control their reproductive futures. The government of India has implemented various family planning programs since the 1950s, promoting the use of contraceptive methods like pills, condoms, intrauterine devices (IUDs), and sterilization. Comprehensive sex education, focusing on reproductive health, is crucial in preventing unwanted pregnancies. Increasing awareness about contraception and reproductive rights among both women and men is essential to reducing the number of unintended pregnancies.

For women facing unwanted pregnancies, counselling plays a crucial role in helping them make informed decisions. Counselling services provide emotional support, inform women about their legal rights, offer guidance on abortion procedures or alternatives like adoption, and help women assess their options in a non-judgmental environment.

Support services can also help women access necessary healthcare, financial assistance, and social services during the period of decision-making. These services can reduce the psychological burden on women and support their autonomy in making reproductive choices.

Conclusion

The evolution of abortion rights in India represents a significant shift toward recognizing women’s autonomy over their reproductive choices, with legal frameworks progressively becoming more inclusive and rights-based. Alongside abortion, solutions like adoption, foster care, family planning, and comprehensive counselling services provide women with the tools to address unwanted pregnancies in a supportive and informed manner.

Through comprehensive reforms and the expansion of services, India can better ensure that both abortion rights and solutions for unwanted pregnancies are accessible and equitable for all women.

 

 References

[1] Indian Penal Code, 1860

[2] Medical Termination of Pregnancy Act, 1971

[3] Suchita Shrivastava & Anr V. Chandigarh Administration, AIR 2010 SC 235

[4] Puttaswamy V. UOI and others, AIR 2018 SC (SUPP) 1841

[5] Poonam Sharma V. UOI, 2023 SCC OnLine SC 1333

[6] X v Principal Secretary, Health and Family Welfare Dept, Govt. of NCT of Delhi & Anr., 2022 SCC OnLine SC 1321

[7] Center for Reproductive Rights, https://reproductiverights.org/about-us/, accessed on 19 December, 2024

[8] Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022)

[9] Roe V. Wade, (1973) 410 U.S. 113

[10] Planned Parenthood of Southeastern Pennsylvania V. Casey, (1992) 505 U.S. 833

[11]United nations department of economic and social affairs, https://www.un.org/en/development/desa/population/publications/pdf/policy/AbortionPoliciesReproductiveHealth.pdf, accessed on 18 December, 2024

[12] Central Adoption Resource Authority (CARA), https://cara.wcd.gov.in/, accessed on 18 December, 2024.

[13] The Juvenile Justice (Care and Protection of Children) Act, 2015

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