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LAWS ON

-KANISHKA1, VAISHALI SHARMA2 & HEENA SHARMA3

Abstract

Many people are very concerned with the children in India, with the children in Africa where quite a number die, may be of malnutrition, of hunger and so on, but millions are dying deliberately by the will of the mother. And this is what the greatest destroyer of peace is today. Because if a mother can kill her own child- what is left for me to kill you and you kill me- there is nothing between- Mother Teresa, Nobel lecture, Dec 11, 1979

As part of the increasingly open discussion of sexual matters in our society. New public attention has been also focused on abortion. In all over the world there is lack of access to safe abortion case. There are many reasons of sometimes there is inability to afford a child, due to domestic violence women loses her child as well as her life because it is very risky to the life of the women and in some situations there is lack of support of husband and women’s also not interested to become mother because she was feeling that they are too young and in feeding to child it effects on her health. Sometimes she wants to complete her education and advance a career and in that situation also get rid of unwanted . In cases of rape victims court also ordered to surgeons for doing abortion. In India the main reason of abortion is boy child preference with the help of sex determination (ultrasound) it is find out the child in the mother womb a girl or boy, if girl in that case abortion is done. Over 70.000 women in a year has died due to . So, here we discuss different countries laws and points of view on Abortion.

1 Student, FIMT, GGSIPU, NEW DELHI 2 Student, FIMT, GGSIPU, NEW DELHI 3 Student, FIMT, GGSIPU,NEW DELHI

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Introduction

The word abortion has been derived from Latin term ‘abortus’ means an object which has been detached from its proper site. Abortion is said to occur when the life of the fetus or embryo is destroyed in the woman’s womb or the pregnant uterus empties prematurely before the fetus has attained the stage of viability. Abortion is a very painful topic for a woman and men who find themselves facing the moral dilemma of whether to terminate a pregnancy.4 It is also considered morally wrong because a life of a child is not decided by the parents, doctor’s etc. (Birth and death are in the hand of the God) but due to the mistake of parents it is suffered by an unborn child who not seen this world. Abortion is not an easy task for the parents especially women because a mother has special kind of attachment with their children she feels all the stages and moving of a child in her womb. Abortion is a way for a man to have sex with women without taking responsibility for any resulting children by getting the women to risk their lives in dangerous operation in order to prevent the child being born.5When pregnancy is terminated after the prescribed legal period it is called feticide and when it is terminated before time it is termed as Abortion.

Definition of Abortion

The term abortion refers to the deliberate medical termination of pregnancy which was done by two ways. In medicine, an abortion is a loss of pregnancy due to the premature exit of the products of conception (the fetus, fetal membranes, and placenta) from the uterus due to any cause. An abortion may occur spontaneously (termed a miscarriage) or may be medically induced.6

Medical Abortion – a woman who are less than seven weeks pregnant can undergo in . It is a non- surgical method and must be done under the supervision of a physician. It is done with the help of pills and Medications.

Surgical Abortion – if a woman wishes to undergo an abortion beyond seven weeks of gestation, then perform surgical Abortion. These are much more effective than a medical Abortion with lower risk of an incomplete procedure.

4 www.bbc.co.uk/ethics/abortion/legal/introduction_1.shtml 5 www.bbc.co.uk/ethics/abortion/mother/against_1.shtmt 6 https:/www.medicinenet.com/script/main/art.asp?articleskey=2091

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History

Abortion was legally restricted by every country at the end of 19th century. The following countries Britain, Portugal, Spain and Italy which imposed their own rules on abortion.

According to UN Population division’s compressive website on Abortion laws, legal system under which abortion is legally restricted and it comes under 3 categories at the end the of 16th century.

 Common law - the UK and Australia, Bangladesh, Canada, India, Ireland, Malaysia, New Zealand, Pakistan, Singapore etc.  Civil law- it includes the rest of Europe, Belgium, France, Portugal, Spain, and turkey, Japan.  Islamic law- it includes countries of North Africa and western as (Bangladesh, Indonesia, Malaysia, and Pakistan.7 If we see in history, there are main three reasons of restrictions on abortion 1. Abortions were dangerous and abortionists were killing a lot of women hence the laws had a public health intention to protect women because it may cause danger to the life to the life of women in doing so.so, they still do today if they have no other choice. 2. Abortion was considered a sin or a form of transgression of morality and the law were intended to punish and act as a determent. 3. Abortion was restricted to protect fetus life in some or all circumstances.8

Efforts were made to change abortion laws and practice since 1920

Soviet Union was the 1st country who reform their laws on abortion. This was initiated by feminist Alexander Kollontai, through a decree on women’s health care in October 1920. After, that the change were done in reform. It main focuses on  On public health and human rights grounds  To remote smaller familiar of population and environment reasons

7 http:/www.in.org/en/development/desa/population/publication/abortiuon/abortion/abortion –policies - 2002.shtml. 8 www.habi.hlm.nin.govt/pmc/articles/PMC

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Controlling fertility has become both technically feasible and acceptable in almost all cultures today. 100 years were passed away, of campaign of safe abortion the use of contraception has been completely decriminalized while abortion has done. Abortion is one of the safest Medical procedure if it is done as per who guidelines (World Health Organization) but when if it is unsafe it becomes also a cause of deaths. In WHO, 2004 Research it is also found that there are only six main grounds on which abortion is allowed in most countries.  Grounds 1 risk to life  Grounds 2 Rape or sexual offences  Grounds 3 serious Fetal Anomaly  Grounds 4 risk to physical and sometimes Mental Health  Grounds 5 social and economic reason In global level 25% of ended in induced in Abortion in 2010-2014 including in countries with high rate of controlling prevalence. Moreover, a Growing no. of Gov. in both the Global North and more recently the Global South have begun to Acknowledge that preventing unsafe Abortion is part of this Commitment to reducing Maternal Death and their Obligation Under (IHALL) International human Rights Law9

Abortion Laws in Different Countries. Some of them are discussed below.

ABORTION IN INDIA

In India abortion have been a subject of discussions and debate. In today’s scenario abortion of fetus is considered as a criminal and also morally wrong.10

These are the following Acts, which deals with the .

 Indian Penal Code - Till 1971 in India, provide provisions for abortion but it not directly provide provisions it talks about provisions of miscarriage under Sec 312 to 316.11  Medical Termination of Pregnancy Act- It also known as abortion Act in India. It

9 ibid 10https://www.myAdvo.in/blog/is-Abortion-legal-in-india/Amp 11 Indian Penal Code, 1860

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deals with the provisions of Abortion laws in India. The act provides that Pregnancy is terminated a Pregnancy within 12 weeks and it is help of medical Practitioner if abortion done after 12 weeks in that case there is need of approval of two medical Practitioner. The approval is mandatory to make sure that Abortion taking place must be according to the laws in India12.  Abortion is legal in India or not? Yes, abortion is legal under some circumstances and illegal in others. If a Person Seeking Abortion is an adult then, there is no need of Parental Or spousal Approval Of it. And in India there is no legal age for abortion, if Abortion is done within 12 weeks, then only consent of one medical practitioner is sufficient after that Consent of two is required.13

In what Conditions abortion is Taken Place in India.

As per Abortion Assessment Project from 2000 to 2004, the studies says that 56%, Abortions were Unsafe. Statically 6.4 million Annual Abortion were done out of 3.6 million Abortion were unsafe due to that 13% maternal Death occur in country. 14  The killing of Female Feticide in Mother Womb In Abortion the killing of female feticide at a highest Rate. According to the UN estimated 200 unborn girls are killing every day in India. Increasing female Feticide is the biggest danger. The following are the reasons behind that:-  As compared to girls male is Preferred reasons is that support family business, earn wages and also give old-age support for parents.  Upon marriage of a male there is no requirement of paying of dowry a son makes a daughter –in-law, brings an additional award through dowry payments, while daughter get married off it is an economic penalty through dowry.  In India, patriarchal system of families according to that at least one son is mandatory in order to continue the family line.

12Medical Termination Of Pregnancy Act, 1971 13 ibid 14 https://www.google.com/amp/s/m.timesofindia.com/life-style/health-fitness/health-news/women-know-these- 5-facts-about-abortion-in-india-and-whats-wrong-with-the-act/amp_articleshow/64121702.cms

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 Only son are permitted to provide the funeral pyre of their parents and to assist in soul.

In India determination of sex is prohibited and if any person compel or force women to undergo for a sex determination if he/she do so then will be punished imprisonment for a term 3 years or fine 10,000.15

Govt. also initiated various action plan and policies regarding that

 Survival and development of girl child 1992- This plan recognized the rights of girl child to be free from hunger, ignorance and exploitation.  Balika Samriddhi Yojna- 1. To raise marriage of Girl. 2. To Change negative attitude of community.16

 In case of Abnormalities in Child There are more cases are increased in case of Down syndrome babies. In that condition the parents has an option to abort child. But in that Case there is no Fault of that unborn Child. In view point of a mother it is not easy to abort that child but if she sees the future of that Child he/she always dependent on others after her/his parents in that case there is no other option. Till now (Down syndrome) child are not accepted. There is no need to make or amend laws until families are not accepted there is no solution so essential that family support.  In case of rape victims In 2014 a draft bill under MTP, Act 1971 under that bill the time period is extended from 20 to 24 weeks, it will also help under aged rape survivors who do not understand that they are pregnant in early months but this bill was not approved. Ex- in case of a 10-year-old rape survivor from Chandigarh in 2017 whose parents only become award of the sexual abuse, as well a program after 20 weeks.17 The scale of Abuse in India  A child under 16 is raped every 155 minutes, a child under every 10 hours.

15 http://vikaspedia.in/social-welfare/social-awareness/female-infanticide 16 www.legalservices.com 17 https://www.news18.com/news/india/wh

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 More than 10,000 children were raped in 2015

In India, court refused to allow minor rape victims abortion in 17%, 82 case between April 2016 and July 2019.

The MTP Act, allows abortion until 2o weeks, 40 petitions were filed in court for seeking termination of pregnancy under 20 weeks from April 2016 to July 2019 because doctors refused to perform, as many 33 cases filed by rape victims.18

For not allowing a safe abortion, it may leave the women with two choices.

1. Death due to unsafe and illegal abortion. 2. Psychological and emotional consequences of a program they were not prepared. Due to that 56% of abortion are performed in India are unsafe with 10 women are dying every day due to unsafe abortion, as India reported in Nov 2017, globally around 47,00019 women die annually as a result of unsafe abortion.20 Abortion as a Fundamental Right Abortion causes emotional turmoil for many women and their families, especially when accompanied by coercion by state but it cannot be seen as anything less than an unalienable right for women. Woman has a right over body and reproduction, it cannot be transferred to their families or state. In India, it is more relevant in this country where child bearing is modified by social norms and women right to decide where and if they want to bear children remains theoretical rather than practical. The existing laws on abortion are inadequate and designed to serve interests of family planning, rather than to allow control over bodies. Under MTP, Act women has a restricted right to Abortion at a more general level this makes a mockery of women right to abortion, and in an extended understanding , women over their bodies.21 D. Rajeshwari vs. State of Tamil Nadu and others22

18 y-proposed-amendment-to-abortion-law-may-mean-little-victory-for-womens-reproductive-rights-in-india- 2482739.html 19 https://news.un.org/en/story/2018/09/1021332 20 https://www.indiaspend.com/56-abortions-unsafe-despite-legal-proposed-amendments-hold/ 21 Kabra SG: Abortion in India: not a right but a state-sponsored program me. Issues in Medical Ethics 2000 VIII (3): 70.

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The case is of an unmarried girl of 18 years who is praying for issue of direction to terminate the pregnancy of the child in her womb, on the ground that bearing the unwanted pregnancy of the child of three months made her to become mentally ill and the continuance of pregnancy has caused great anguish in her mind, which would result in a grave injury to her mental health, since the pregnancy was caused by rape. The court granted the permission to terminate the pregnancy.23 Paton vs. United Kingdom24 Under this case court held that abortion is permitted if the continuance of pregnancy involves risk. The right to life of fetus is subject to a implies limitation allowing pregnancy to be terminated in order to protect the life of a mother.25 H vs. Norway26 Under this case court also held that women has the same exclusive right to abortion as to any to any other medical treatment. The prospective fathers have no right to be consulted for the same.27

ABORTION IN AUSTRALIA

The legislature of Australia's New South Wales province also ratified the new abortion law. With this, abortion has gained legal recognition throughout Australia. Earlier in the country, abortion was illegal. There was a provision of 10 years jail sentence for the woman and abortionist for this crime. This law was in effect for the last 119 years.28

Women can get their abortion up to 22 weeks

Under the new law, women will now be able to voluntarily abort their womb for up to 22 weeks under the supervision of a registered physician. Whereas for abortion longer than this, they have been required to get the consent of two doctors. Under the new law, the area of hospital up to 150 meters around the hospital providing medical facilities for abortion is placed under the Secure Zone. If a doctor does not want to abort the woman herself, then she has to refer the woman to another doctor. A bill was passed declaring abortion a non-criminal act. Abortion is legal in everywhere in Australia. On September 26, 2019, the NSW parliament officially decriminalized abortion in New South Wales, meaning (abortion is now

23 ibid 24 (1980) 3 EHRR 408 25 www.legalservices.com/articles/adoption.htm 26 (1992)73 DR 155 27 ibid 28 www.bbc.com/news/world-australia-49834734

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VOLUME 3 ISSUE 3 MARCH 2020 ISSN:2456-9666 legal in every legal state and territory in Australia)29 According to section -9 of Human Rights Act, 2004 it says that the right to life applies to a person from the time of birth. Full- term abortions on demand are legal in the ACT as there are no gestational limits. The average cost of medical abortion is 560$ and 470$ for the first trimester surgical abortion according to 2017 study which was published in Australian and New Zealand journal of public health but was always a health issue as was decided by the individual state and territory government, not the federal government because of which there was a different laws and rules in every country around the world. The lower house of the parliament passed a bill to decriminalize abortions on 01 Aug, 2019 which is known as Reproductive Health care Reform Bill, 2019 was introduced in the lower house of the parliament. The upper house passed a bill with new amendments changed the name of the bill to Abortion Law Reform Bill, 2019. On 02 Oct, 2019 it becomes a law. So now abortion in Australia is legal as it is the choice of the women whether to keep the baby in the womb or not.

ABORTION IN IRELAND

Ireland has the strictest laws worldwide against the abortion. The offenses against the person act, 1861 under this section-58 and section- 59 tells about that the abortion was a criminal offense. The constitution was amended after a referendum in Ireland in 1983. Under this amendment, the woman and the child in her womb were also given equal rights of life that is abortion was made completely illegal. There was a provision of 14 years punishment for those who did so. But in 1992, protests against the government started demanding abortion of a rape victim. After which the government had allowed people to go outside the country for abortion. After this, any woman who had to undergo an abortion in Ireland had to go abroad. However, according to the law on abortion since 1992, abortion is allowed only in the event of a woman's life being threatened and in rape cases it is not.

Government had to hold a referendum

“People expressed their opinion. A modern country needs a modern constitution. Irish voter’s respect and trust women to make the right decisions and to make the right decisions regarding their health.” Leo Varadkar, Prime Minister, Ireland.30

29 https://amp.theguradian.com/australia-news/2019/aug/19/nsw-abortion-law-the-decrimination-reform- bill-expained 30 www.bbc.com/news/world-eurpoe-44265492

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After a historic referendum in Ireland in early 2018, the country’s parliament passed a bill all abortion for the first time. Irish Prime Minister Leo Varadkar praised the move, calling it a “historic movement”. Significantly, Savita Halappanavar1 was an Indian dentist who died in 2012, at the age of 31 as doctors refused to perform abortions. Due to this death, a movement arose in Ireland, after which a referendum was held and now the country’s parliament has passed a bill to change the law and allow abortion. According to the new law, abortion in Ireland is regulated by the health (Regulation of Termination of Pregnancy Act, 2018) allows for a termination. Abortion of up to 12 weeks has been allowed31, or in such a situation that the pregnant woman’s life is threatened or her health is severely damaged, then the woman will be allowed to undergo an abortion. It will also allow the eradication of an abnormal fetus that can lead to the death of an infant within 28 days of birth or even earlier32.

ABORTION IN SAUDI ARABIA Abortion in Saudi Arabia is generally illegal with only a very narrow exception. An abortion is only a very narrow exception. An abortion is only legal if the abortion will save the women’s life or if the pregnancy gravely endangers the women’s physical or mental health. The fetus must be less than 4 months old and if longer requires a panel of approved specialists to declare that the pregnancy will result in death of the women.

A law regarding abortion was passed through the Government (Alabama’s law) by Kay Ivey a Republican bans abortions in the state at every point in pregnancy and carries a sentence up to 99 years for doctors that performs the medical pedicure. The bill followed similarly restrictive laws in Onio Mississioi, Missouri & Georgia, though none of the other states went as far as the Alabama Legislation.

By contrast there are a number of abortion exception in the country 33Harte z looked at and in the cases of Turkey and Tunisia, legal abortion is done but only through the first trimester. Infact the same person who drafted Alabama’s Anti-Abortion Bill-an Activist named Eric Johnston who founded the Alabama’s Pro-life condition and also drafted its Anti-Sharia Law in 2014 arguing that (Sharia Law) violated the Rights of women.

In the year 2014, (14 Abortions) were reported, this is in gross contract to the World Health Organization (WHO) data which estimates that unsafe Abortion Rate per 1000 women is

31 https://www.abortionrightscampaign.ie/abortion-law-in-ireland 32 https://www.irishtimes.com/news/social-affairs/a-year-since-the-death-of-savita-halappanavar-1.1555144 33 www.commondreams.og/news/2019/05/22/abortion-laws-saudia-arbia-more-forgiving-almaba-report

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VOLUME 3 ISSUE 3 MARCH 2020 ISSN:2456-9666 approximately 20 to 24. The maternal morality due to unsafe abortions per 10,000 live births was anywhere b/w 10-70. These numbers are really different to estimate because of the strict laws and stigma attached to the abortion.

Also, some the women often resorts to unsafe means of Abortion in Saudi Arabia some of them are; - herbal medicines, consuming toxins, heavy physical labor and inserting instruments into the uterus.

These above mentioned methods are very dangerous which often puts a woman life as well as the life of that unborn child into risk and danger as these may lead to the death of women also. Women who survive these methods have lasting damages to their reproductive organs. Illegal abortion services are available and abortion pill is prescribed to women seeking abortion.

However, these are not done under medical supervision and that can be a danger a women’s life as these laws are applicable irrespective of the women’s nationality and even if the women’s residing temporarily in a country they seek abortion services out of the country or try killing the baby in womb by abortion pills. Travelling to countries where abortion is legal, like India, ensures safety & minimizes complications.

Abortion in Saudi Arabia is banned by the law, both medical and surgical abortion is a now in Saudi Arabia as well as in Jeddah, Riyadh or Dam mam. (The Family Hospital is a legal abortion unit in Mumbai “INDIA” and does both Medical & Surgical Abortion in 1st & 2nd trimester that is why there is more no. of cases of abortion in India).34

ABORTION IN GERMANY

34 http://www.abortionqatar.com/abortion-in-saudi-arabia.html

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In Germany Abortion is also known as (The Mass Murder of Unborn Children). There are a lot of doctors / practitioners who performs this function of killing unborn children in womb, or we can say murdering of these unborn lives. After a strict punishment the doctors were also being sentenced for giving their patients information about the crime of Abortion as it is illegal for gaining money.

In the year 1972, East Germany passed a most progressive law in Europe, which recognized abortion up to 12th week of pregnancy as a legal right. West Germany also implemented this law in 1974 with a slight & less revolutionary law that nonetheless legalized abortion which is only up to 12th week, but this law was later on repealed by the Germany’s federal constitutional court, and they declared it unconstitutional.

So, later on West Germany went into a compromise that made abortion technically illegal, but allowed it to go unpunished under some conditions. It was made illegal under section – 218 of the German criminal code but permitted under section-218A and it is also called “Exception to liability for Abortion, in the first Trimester upon condition of mandatory counselling and also permitted later in pregnancy in cases of medical necessity.

In Germany, anyone who decides to have an abortion can choose between instrumental & medication based abortion. In the year 2017, Dr. Hanel was convicted of breaking the law(Aborting babies in womb) & was fined for 6000 Euros or about $6850 by a court in Giessen for stating on her website that she provided abortions and would send information on them, in Germany, English or Turkish to anyone Requisite it.

She challenged the verdict hoping that her case will reach the country’s highest court and by that fight she can use it as a platform to rally women’s rights and which got supported by various activists to make it a law for women.

The Government is nowadays expected to put a bill before the parliament in the coming weeks to amend their law. It would have a medical association maintain a list of abortion providers with monthly updates. Unlike the doctors on clinics, the association would be allowed to provide further information about the different abortion procedures and what they entail.

In 2019 the Germany parliament passed a law that there can be advertisements of abortion on television, radio, etc. And it also said that they can also mention it on their website about the abortion. They revised law, which maintains the ban on advertising, still forbids doctors or

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VOLUME 3 ISSUE 3 MARCH 2020 ISSN:2456-9666 hospitals from mentioning what kind of abortion methods they use. Women who wish to find a complete list of providers and their methods would be able to search a list of providers compiled by the Federal Centre for Health Education.

ABORTION IN AMERICA Abortion was made legal in America in the year 1973 by a Supreme Court decision- Best known as Roe v/s Wade.35 This case came in the Supreme Court regarding the women’s privacy with respect to their medical matters as well as family planning. Its important recognize that the law is not only the factor that is determining the people that whether they should go for abortion or not. There are nowhere near enough clinics for abortion in US. Only about 6 states in US which only have one clinic which gives the abortion treatment/facility. Twenty-seven (27) major US cities and much more of the Rural America qualifies as (Abortion) “deserts” where most people for more than a 100 miles( ca.161 km) away from an abortion provider clinic36.

The most restrictive abortion law in the country is in Alabama. The ban makes abortion illegal in virtually all cases -- including cases of rape and incest - and doctors who perform abortions could face their life in prison. New York passed a law to (protect women's access to abortion) right on the 46th anniversary of (Roe v. Wade) earlier this year. The law also protects doctors or medical professionals who perform abortions from criminal prosecution. A competing in New York's state legislature has stalled. At least 9 nine other states have laws protecting abortion. Oregon is leading the way with a state law that makes abortion legal throughout pregnancy while others only permit abortion prior to viability or to protect the health and life of a woman.

35 410, U.S.113.1972. 36 www.amnesty.org/en/latest/2019/06/abortion-laws-in -the -us-10things-you-need-to-know/

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In January 2019, New York Government Andrew Cuomo passed the, (Reproductive Health Act), a law that allows people to receive an abortion after the 24th week of pregnancy in cases where the health of the person giving birth is on the line or if the baby would not survive the birth. Previously, the New York law only allowed an abortion after 24 weeks if the person giving birth would not survive.37

Conclusion:-

From above discussion, we concluded that methods are adopted which makes abortion is simple and irrefutable and it is must be available on the women’s request and universally affordable and accessible. It is the obligation of the state to provide education to society regarding the laws on abortion, sex education, and use of contraceptives. There is need to make special efforts for the education of women. Education plays an important role in empowerment of women economic empowerment will reduce the dependence on sons as a bread earner and care taker in old age. There is need to adopt both legislative and non- legislative measures which helps to achieve empowerment of women which in turn will reduce the female feticide. From above discussions there is no motive behind to provide answers or roadmaps because in every country laws are different and each country make laws according to the condition of their citizens. Making something illegal it does not make the problem go away it just fosters a criminal, unregulated market as the demand still remains. We can say that making abortion less necessary is by far a better approach. The first way to do so is to reduce the incidence of unintended pregnancy. Discussing the topic of abortion the healthcare is a step which goes along with that. The New England Journal of Medical shows universal healthcare program which decreases the abortion rate.

Abortion is safe if they are done with WHO recommended methods i.e. appropriate to the pregnancy duration and must provide training to the person who does the abortion. Launch that program me which curb domestic violence and sexual abuse, provide insurance coverage and of public funding for family planning services. Also, the case of abortion cases is increased in India of tourists because it is illegal in their country.

But to achieve these goals it is necessary to take a strong and active National coalition and it requires a support of all countries at global level.

37 https://www.amnesty.org/en/latest/news/2019/06/abortion-laws-in-the-us-10-things-you-need-to-know/

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