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The earliest mentions of abortion in our written texts reflect the interests of class and caste. Fines are listed in the Code of Hammurabi, ca. 1760 BC, for the crime of causing a miscarriage through assault, with the amount varying according to the social rank of the woman.[1][2] The Vedic and smrti laws of India reflect a concern with preserving the male seed of the three upper castes; and the religious courts imposed various penances for the woman or excommunication for a priest who provided an abortion.[3]
While abortion is not mentioned in the Greek and Roman laws, an inference can be made from the laws mandating infanticide for children born deformed, suggesting a state interest in the "fitness" of its citizens.[4] In 211 AD, at the intersection of the reigns of Septimius Severus and Caracalla, abortion was outlawed for a period of time to protect the rights of the father, with the punishment being temporary exile.[5]
In the West, ecclesiastical courts dealt with the matter of abortion, which was viewed as a moral issue and dealt with in Ecclesiastical courts, which treated abortion of an "unformed fetus" (prior to quickening) as quasi-homicide, imposing a lesser penance than for full homicide. Starting with Leges Henrici Primi, around 1115, abortion was treated as a misdeamenor prior to "quickening", accruing a penalty of 3 years' penance, or as a "quasi homicide", with ten years' penance, after quickening.[6] With the notable exception of Henry Bracton,[7] most writers on the subject held to this view, and the penalties for homicide were not applied to the crime of abortion. William Staunford first formulated the born alive rule in accordance with the definition of Murder in English law, which states that the victim be "a reasonable creature in rerum natura, language which dates back to the Leges Henrici Primi. William Blackstone's commentaries are usually consulted for the modern formulation of this rule.
The only evidence of the death penalty being mandated for abortion in the ancient laws is found in Assyrian Law, in the Code of Assura, c. 1075 BCE;[8] and this is only imposed on a woman who procures an abortion against her husband's wishes.
In the early 1950s, the Chinese government made abortion illegal, with punishments for those who received or performed illegal abortions written into the law.[9] These restrictions were seen as the government's way of emphasizing the importance of population growth.[9] As the decade went on, however, the laws were relaxed with the intent of reducing the number of deaths and life-long injuries women sustained due to illegal abortions as well as serving as a form of population control when used in conjunction with birth control.[9] In the early 1980s, the state implemented a form of family planning which used abortion as a "back-up method"; since then, there have been legitimate fears regarding sex-selective abortion.[9]
India enforced the Indian Penal Code from 1860 to 1971, criminalizing abortion and punishing both the practitioners and the women who sought out the procedure.[10] As a result, countless women died in an attempt to obtain illegal abortions from unqualified midwives and "doctors".[10] Abortion was made legal under specific circumstances in 1971, but lower class women still find themselves at a greater risk of injury or death as a result of a botched abortion.[10]
Japan is known today worldwide for its acceptance of abortion. [11][12] It is estimated that two-thirds of Japanese women have an abortion by age forty, partially due to former government restrictions on contraceptive pills on 'public hygiene grounds'. [11]
The Eugenics Protection Law of 1948 made abortion on demand legal up to twenty-two weeks' gestation so long as the woman's health was endangered; in 1949, this law was extended to consider the risk the child's birth would place on a woman's economic welfare. [11][12] Originally, each case would have to be approved by a local eugenics council, but this law was removed from the law in 1952, making the decision a private one between a woman and her physician. [11][12]
In 1964, the creation of the conservative right-wing nationalist political lobbying group called Seicho-no-Ie brought about a strong opposition to the abortion laws. [11] This campaign reached its peak strength in the early 1980s, but ultimately failed in 1983. [11]
In 1957, Romania legalized abortion, but in 1966, after a decline in the national birthrate, Nicolae Ceauşescu approved Decree 770, which criminalized abortion and encouraged childbirth. As a result of this decree, women were forced to seek out illegal methods of abortion that caused the deaths of over 9,000 women and left countless unwanted children abandoned in orphanages. Abortion remained illegal until 1989, when the decree was overturned.
There was intense public debate throughout the 1980s and 1990s over legal abortion reform.[11] These debates portrayed abortion as un-Buddhist and anti-religious; abortion opponents ultimately labeled it as a form of Western corruption that was inherently anti-Thai and threatened the integrity of the nation.[11] Despite this, in 2006, abortions became legal in cases of rapeorfoetal impairment.[11] Mental health also became a factor in determining the legality of an abortion procedure.[11] The strict regulations involved in qualifying for a legal abortion, however, cause approximately 300,000 women a year to seek illegal avenues, with the poorest undergoing the most dangerous of procedures.[11]
In 1957, the procedure was officially legalized in Romania, following which 80% of pregnancies ended in abortion, mainly due to the lack of effective contraception. By 1966, the national birthrate had fallen from 1960's 19.1 per 1,000 to 14.3 per 1,000, a decline that was attributed to the legalization of abortion nine years previous. [13] In an effort to ensure "normal demographic growth", Decree 770 was authorized by Nicolae Ceauşescu's government. The decree criminalized abortion except in the following cases:
The effect of this policy was a sudden transition from a birth rate of 14.3 per 1000 in 1966 to 27.4 per 1000 in 1967, though it fell back to 14.3 in 1983. [13]
Initially, this natalist policy was completed with mandatory gynecological revisions and penalties for single women over 25 and married couples without children, [14] but starting in 1977, all "childless persons", regardless of sex or marital status, were fined monthly "contributions" from their wages, whose size depended on the sector in which the person worked.[13] The state glorified child-rearing, and in 1977 assigned official decorations and titles to women who went above and beyond the call of duty and had more than the required number of children.[13] In 1980, it became obligatory to have children.[13]
Ceauşescu promoted gender equality, but also desired to increase the nation's population.[13] In his rhetoric, he stressed the "distinguished role and noble mission" found in child-rearing, and promised state-sponsored assistance in the form of childcare centers, accessible medical care, maternity leave, and work protection so that women could have multiple children and remain in the workforce.[13] Unfortunately, the government was unable to provide much of this assistance, leaving many families in difficult situations.[13]
To enforce the decree, society was strictly controlled. Motherhood was described as "the meaning of women's lives" and praised in sex education courses and women's magazines, and various written materials were distributed detailing information on prenatal and child care, the benefits of children, ways to ensure martial harmony, and the consequences of abortion.[13] Contraceptives disappeared from the shelves and were soon only available to educated urban women with access to the black market, many of them with Hungarian roots. [13] In 1986, any woman working for or attending a state institution was forced to undergo at least annual gynecological exams to ensure a satisfying level of reproductive health as well as detect pregnancy, which were followed until birth.[13] Women with histories of abortion were watched particularly carefully. [13]
Medical practitioners were also expected to follow stringent policies and were held partially responsible for the national birthrate. If they were caught breaking any aspect of the abortion law, they were to be incarcerated, though some prosecutors were paid off in exchange for a lesser sentence.[13] Each administrative region had a Disciplinary Board for Health Personnel, which disciplined all law-breaking health practitioners and on occasion had show trials to make examples of people. Sometimes, however, punishments were lessened for cooperation. [13] Despite the professional risks involved, many doctors helped women determined to have abortions, recognizing that if they did not, she would turn to a more dangerous, life-threatening route. This was done by falsely diagnosing them with an illness that qualified them for an abortion, such as diabetes or hepatitis, or prescribing them drugs that were known to counter-induce pregnancy, such as chemotherapy or antimalarial drugs.[13] When a physician did not want to help or could not be bribed to perform an abortion, however, women went to less experienced abortionists or used old remedies.[13]
From 1979 to 1988, the number of abortions increased, save for a decline in 1984-1985.[13] Despite this, many unwanted children were born, as their parents could scarcely afford to care for the children they already had, and were subsequently abandoned in hospitals or orphanages. Some of these children were purposely given AIDS-infected transfusions in orphanages; others were trafficked internationally through adoption.[13] Those born in this period, especially between 1966 and 1972, are nicknamed the decreţei (singular decreţel), a word with a negative nuance due to the perceived mental and physical damage due to the risky pregnancies and failed illegal abortions.[15]
This policy was reversed in 1989, after the Romanian Revolution, and, since that time, abortion has been legal in Romania. Over 9,000 women died between 1965 and 1989 due to complications arising from illegal abortions.[13]
Japanese documents show records of induced abortion from as early as the 12th century. During the Edo period and earlier, abortion was legal, though the upper classes and those in urban areas practiced it more often than poor, rural people, who tended to resort to infanticide. [12] Government leaders condemned abortion as "immoral acts of murder" and accused practitioners of trying to deprive the nation of future taxpayers.[12] In 1667, it became illegal to use signs to advertise abortion services.[12]
In 1842, the Shogunate in Japan banned induced abortion in Edo, but the law did not affect the rest of the country until 1869, when abortion was banned nation-wide.[16][12] However, the crime was rarely punished unless the conception was a result of adultery or the woman died as a result of the abortion procedure.[12]
The abortion policy under the Meiji government was similar to that of the Edo period, and was fueled by the belief that a large population would yield more military and political influence on the international stage.[12] In 1868, the emperor banned midwives from performing abortions, and in 1880, Japan's first penal code declared abortion a crime.[12] The punishments for abortion grew more severe in 1907 when the penal code revised: women could be incarcerated for up to a year for having an abortion; practicioners could be jailed for up to seven.[12] The Criminal Abortion Law of 1907 is still technically in effect today, but other legislation has overridden its effects.[12]
In 1923, doctors were granted legal permission to perform emergency abortions to save the mother's life; abortions performed under different, less life-threatening circumstances were still prosecuted.[12] In 1931, the Alliance for Reform of the Anti-Abortion Law (Datai Hō Kaisei Kiseikai) was formed by Abe Isoo and argued that "it is a woman's right not to bear a child she does not want, and abortion is an exercise of this right".[12] This organization believed that abortion should be made legal in circumstances in which there was a high chance of genetic disorder; in which a woman was poor, on public assistance, or divorced; in which it endangered the woman's health; and in which the pregnancy was a result of rape.[12] In 1934, the Fifth All-Japan Women's Suffrage Congress wrote up resolutions calling for the legalization of abortion as well as contraception.[12] This did not result in any immediate reaction from the government at the time, but after the war, these resolutions were consulted when drafting legislation legalizing abortion.
In 1940, the National Eugenic Law stopped short of explicitly calling abortion legal by outlining a set of procedures a doctor had to follow in order to perform an abortion; these procedures included getting second opinions and submitting reports, though these could be ignored when it was an emergency.[12] This was a daunting and complicated process that many physicians did not want to deal with, and some sources attribute the fall in abortion rate between 1941 and 1944 from 18,000 to 1,800 to this legislation.[12]
After World War II, Japan found itself in a population crisis. In 1946, 10 million people were declared at risk of starvation, and between the years 1945 and 1950, the population increased by 11 million.[12] In 1948, Japan legalized abortion under special circumstances.[17] Eugenic Protection Law of 1948, made Japan one of the first to legalize induced abortion. This law was revised as the Maternal Body Protection Law in 1996.[18]
Currently, abortion is widely accepted in Japan. According to a 1998 survey, 79 percent of unmarried and 85 percent of married women approved of abortion.[19] According to researchers at Osaka University in 2001, 341,588 legal abortions were carried out in Japan, a 2.5 percent increase from 1998 to 2001.[20] However, in 2007 the figure had decreased to around 256,000. [3]
From 1945–48 Japan experienced a severe population boom, exacerbated by 6.6 million repatriates and demobilised soldiers. The acts of Miyuki Ishikawa, a midwife who killed over a hundred newborn infants to parents who were unable to support a new child in secret and later attempted to extort the parents, is believed to have spurred public opinion towards the legalization of abortion [21][22] and the Eugenic Protection Law of 1948 was passed. This law provided for family planning services and permitted induced abortion and sterilisation for health reasons. Prior to 1948, illegal induced abortions were rampant, which seriously endangered the lives of many Japanese women. In 1949 the law was amended to allow abortions to be performed for economic reasons. The law was further liberalised in 1952 when bureaucratic procedures were eliminated through the annihilation of local eugenics councils, who would have to approach each case individually.[11][12] Physicians were required to report the number of abortions they performed to the Designated Physicians' Association. In 1955 the number of abortions peaked at 1.17 million; since then it has gradually declined. The eugenics law came under fire in 1973 by religious groups and political leaders. The Family Planning Federation of Japan opposed any revision of the present law. Increased fees for abortion operations, back street abortions, increased population and its concomitant social and economic disadvantages, and loss of face in the international world, are seen as problems which would be caused by a revised eugenics law.[23]
The Indian Penal Code, which was enacted in 1860 and was written in accordance with British law at the time, declared induced abortion as illegal, which was defined as "causing miscarriage".[10] Abortion practioners would either be incarcerated for up to three years, fined, or both; women undergoing abortions could be imprisoned for up to seven years and also be charged an additional fine.[10] The only exception was when abortion was induced in order to save the life of the woman.[10] Despite the fact that this passage in the penal code was changed in Great Britain in 1967, India did not change it until 1971.[10]
Countless women died attempting illegal abortions as a result of the penal code, and it was a combination of this and the growing population that made the country reconsider its initial stance.[10] In 1964, the Central Family Planning Board of the Government of India met and formed a committee designed to examine the subject of abortion from medical, legal, social, and moral standpoints.[10] The Abortion Study Committee, lead by the then Health Minister of the state of Maharashtra Mr. Shantilal Shah, spent the next two years studying the issue, and submitted a report with its suggestions in December 1966.[10] This report considered the penal code to be too restrictive and recommended that the law's qualifications should be relaxed; many of these suggestions were included in the subsequent Medical Termination of Pregnancy (MTP) Act.[10]
As per India’s abortion laws only qualified doc stipulated conditions, can perform abortion on a woman in an approved clinic or hospital. The Indian abortion laws fall under the Medical Termination of Pregnancy (MTP) Act, which was enacted by the Indian Parliament in the year 1971. The MTP Act came into effect from April 1, 1972 and was once amended in 1975.
The Medical Termination of Pregnancy (MTP) Act of India clearly states the conditions under which a pregnancy can be ended or aborted, the persons who are qualified to conduct the abortion and the place of implementation.[24] Some of these qualifications are as follows:
The length of the pregnancy must not exceed twenty weeks in order to qualify for an abortion.[10]
At the time the Act was passed, people feared the overcrowding of hospitals and an increase in promiscuity in teenagers, young adults, and young widows.[10] Sex-selective abortions favoring males was also a concern.[10]
In the early 1950s, the Chinese government made abortion illegal save when 1) the mother had a preexisting condition, such as tuberculosis or pernicious anemia, that would cause the pregnancy to be a threat to the mother's life; 2) when traditional Chinese medicine could not settle an overactive fetus and spontaneous abortion was expected; and 3) when the mother had already undergone 2 or more Caesarean sections.[9] Punishments were written into the law for those who received or performed illegal abortions.[9] In 1954 and 1956, the law was extended to include other pre-existing illnesses and disabilities, such as hypertension and epilepsy, as well as allowed women working in certain types of occupations to qualify.[9] Women who had already had four children and became pregnant four months after giving birth to their last child also qualified for an abortion.[9] These restrictions were seen as the government's way of emphasizing the importance of population growth.[9] These laws were relaxed in the late 1950s and early 1960s with the intent of reducing the number of deaths and life-long injuries women sustained due to illegal abortions as well as serving as a form of population control when used in conjunction with birth control.[9]
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