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Navigating the complex web of criminalizing women’s lifestyle choices.

Striking the fragile balance between the protection of unborn children and respecting the rights of women is a global challenge. Along these lines, the criminalization of women’s lifestyle choices during pregnancy raises significant concerns. This article explores the legal framework, various viewpoints, potential consequences, and societal considerations associated with criminalizing women’s lifestyle choices during pregnancy, suggesting a balanced approach is in the best interest of everyone concerned.

The Indian legal framework recognizes every individual’s right to life and personal liberty, even extending this right to unborn children. While India’s constitution applies to all citizens, it specifically extends protections to unborn children.

A plethora of other laws and regulations further mold the legal landscape in India. Indian penal code holds specific provisions regarding pregnancy termination. Section 312 addresses the offense of causing miscarriage during the fourth month of pregnancy when fetal movement is detected, offering heightened protection to the unborn, and punishable by up to seven years imprisonment, along with potential fines. Section 316 expands on this, treating the death of an unborn child as culpable homicide, punishable by up to ten years imprisonment and fines. The Allahabad High Court upheld the sentencing of the accused under Section 304-B for killing an unborn child, with other judgments recognizing a fetus over five months old as a child.

Indian law establishes two conditions permitting the termination of a pregnancy. When continuing the pregnancy would pose a risk to the expectant mother, and secondly, there’s a substantial risk of the child suffering from physical and mental abnormalities if the pregnancy is carried to term. In such a conflict, the mother’s right to life takes precedence. In October, India’s high court ruled that unmarried women be allowed access to abortion services between 20-24 weeks of pregnancy.

In the U.S., some states have legislated against substance abuse during pregnancy. The conviction of a California woman of murder after giving birth to a stillborn baby and confessing to methamphetamine use ignited a contentious debate. Subsequent convictions in Alabama and South Carolina have upheld such use of substances as child abuse. However, studies suggest that criminalizing drug use during pregnancy is ineffective.

Societal considerations show that women with limited resources often bear the brunt of punitive measures. Following Dobbs v. Jackson, uncertainty remains. Currently, 22 million women of reproductive age live in states where abortion access is severely limited or entirely inaccessible.

In Canada, the provinces of Alberta, Manitoba, and Saskatchewan have taken steps to apprehend and confine pregnant women dealing with substance use issues.

The situation in the United Kingdom mirrors this. While there is no specific legislation criminalizing lifestyle choices during pregnancy, local authorities can intervene under child protection laws if they perceive potential risks to the child. Two acts, the Infant Life (Preservation) Act 1929 and the Offences Against the Person Act 1861 (heavily amended since that time) criminalize the killing of a viable child. The court established grounds for legal abortions, and the Abortion Act of 1967 clarified the legal position.

Those advocating for the criminalization of women’s lifestyle choices during pregnancy often base their arguments on fetal well-being and the importance of prenatal care. Specifically, 9.4% of individuals disclosed current alcohol use, 2.6% admitted to binge drinking, and 0.4% acknowledged heavy drinking within the age range of 15-44. Yet, while criminalizing certain behaviors may provide moral satisfaction, laws in liberal democratic societies shouldn’t hinge solely on moral outrage and emotion.

If women fear legal consequences for certain lifestyle choices, it could lead to reluctance in seeking necessary prenatal care. According to the WHO, an estimated 225 million women lack access to essential modern contraception. The figures underscore that where induced termination of pregnancy is legally restricted or otherwise inaccessible, access to safe termination procedures becomes a privilege predominantly enjoyed by affluent individuals.

When the state prosecutes pregnant women, criminal law serves as a means of social control, punishing those who deviate from societal expectations of motherhood. Striking a delicate balance between women’s rights and autonomy and the protection of the unborn child proves to be a formidable challenge. It calls for an approach that judiciously weighs the best interests of both parties. A comprehensive strategy should prioritize public health interventions, educational programs, and voluntary interventions targeting the underlying factors contributing to harmful behaviors during pregnancy.

Tanya Verma (she/her) is a third year student at Dr. Ram Manohar Lohiya National Law University.