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Abortion laws In India

Earlier there used to be huge number of induced abortions and due to unsafe abortion, the maternal mortality rate was increasing quickly, so in order to control these unsafe abortions the government in 1960 constituted a committee, Shantilal Shah Committee for the legalisation of abortion in India.

In 1971 due to increase rate of unsafe abortion resulting in high number of maternal mortalities the Medical Termination of Pregnancy act (MTP)[1] came to force. MTP act legalised abortion in India. Before this act, abortion was a criminal offence due to which many unsafe and illegal abortions took place.

Section 312 of the Indian Penal Code (IPC) [2], 1960 talks about causing miscarriage. According to this section if a person voluntary causes a woman with child to miscarry without acting in good faith in order to save the life of woman then that person will be liable to pay fine or be imprisoned which may extend to 3 years or both, and if the pregnant woman has reached to advance stage of pregnancy, that is, movement of foetus has started or the embryo has taken place and in these circumstances if a person causes miscarriage then he/she will be punished with imprisonment which may extend to 7 years and also be liable for fine.

Section 313 of the IPC deals with "miscarriage without consent". If a person commits an offence mentioned in section 312 above without the consent of pregnant women, then that person will be punished with life imprisonment or be imprisoned which may extend to 10 years and will also be liable for fine. The offence under this section is non-bailable offence as there is deliberate motive to kill the child.

Therefore, in order to legalise abortion in India the Medical Termination of Pregnancy (MTP) act came into force and this act is exception to section 312 and 313 of the Indian Penal Code, 1960 and this act lays down the rules for medical abortion.

MTP act from 1971 to 2021

This act provides rules and regulations for termination of pregnancy which should only be carried by registered medical practitioners (medical practitioner who acquires any recognized medical qualification as defined in section 2 (h) of the Indian Medical Council Act, 1956). This act came in 1971 and the latest amendment was made in 2021[3]. The different sections of this act lay down rules for termination of pregnancy.

Conditions under which pregnancy can be terminated by registered medical practitioner:

Section 3 (2) of this act tells under which conditions pregnancy can be terminated:

  1. When the length of pregnancy is within 20 weeks, it can be terminated by 1 registered medical practitioner.
  2. When the length of pregnancy exceeds 20 weeks but is less than 24 weeks then it can be terminated by at least 2 registered medical practitioners.
     
In both the above case, pregnancy is terminated by medical practitioner if that pregnancy causes physical and mental damage to women which can be due to failure of any contraceptive method or devices for preventing pregnancy. If the woman is a rape victim and is pregnant then pregnancy can be terminated as this can cause grave mental and physical injury to her. So, pregnancy can be terminated if it is injurious to women physically or mentally.

Section 3 (2) (4) states that no pregnancy shall be terminated without the consent of pregnant woman and in case of minor or lunatic termination can only take place after takin consent of their guardian in written.

Medical board:

Medical board consisting of a Gynaecologist, a Paediatrician, a Radiologist or Sonologist; and some other members should be present in every state and union territory. termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board. The length of pregnancy is not considered or taken into account if the foetus has abnormalities diagnosed only by medical board.

Place where termination of pregnancy can take place:

Section 4 of this act tells us that pregnancy can only be terminated in:
  • A government hospital.
  • Any other place approved by government for carrying out termination.

Exception to Section 3 (length of pregnancy) and Section 4 (place of termination of pregnancy):

Section 5 (1) states that only registered medical practitioner can terminate pregnancy during any time period of pregnancy irrespective of the condition mentioned in section 3 and at any place irrespective of condition mentioned in section 4 if the termination of pregnancy is necessary for saving the life of pregnant woman.

Section 5 (2) states that if termination of pregnancy is carried out by non-registered medical practitioner the it is a punishable offence under the Indian Penal Code, 1960.

This section also mandates that the privacy of woman should be protected. The name of the women should not be revealed whose pregnancy has been terminated except to the person authorised by law and if name is revealed to any other person, then it is a punishable offence and the practitioner shall be imprisoned which may extend to 1 year or be liable for fine or both.

Power to make rules regarding this act:

Section 6 of this act gives power to make rules:
  • To the Central Government by notification in the official gazette and every rule made should be presented before each house of parliament and by the consensus rule is made.
  • The rules made above provide for matters like- training or experience of registered medical practitioner which he should possess to carry out termination of pregnancy.
  • Rules can be made for the purpose of defining powers and functions of medical board.

Regulations made by State Governments:

According to section 7 of this act State government may by regulation:
  • Can take any opinion about the act by registered medical practitioner.
  • Any information furnished about the act shall be given to Chief Medical Officer of the state.

Protection of medical practitioner:

Section 8 speaks about the protection of registered medical practitioner that no legal proceedings shall lie against any registered medical practitioner who acted in good faith and any damage is caused which was inevitable then no suit will lie against the medical practitioner.

These are rules and regulations laid down by Medical Termination of Pregnancy act for termination of pregnancy.

Judicial intervention in cases of Abortion:

There have been various cases in relation to abortion because MTP act puts forward various conditions for abortion which sometimes are hard to be fulfilled. There are several cases in High Courts and Supreme Courts where the medical board rejects permission for abortion after the gestational period (24 weeks) mostly in cases of sexual assault and foetal abnormalities.

One of the landmark cases related to abortion is about Right to Privacy of a women which was laid down by the 9 nine Judges bench of the apex court of India in Justice KS Puttaswamy (Retd.) v. Union of India[4], 2017. In this case Supreme Court came out with a decision that Right to Privacy is a Fundamental right guaranteed by Article 21 of Indian Constitution[5] and everyone shall have access to it and therefore a pregnant woman has the right to choose whether or not to continue with her pregnancy as it her right to privacy as well as right to life and liberty under article 21 of Indian Constitution.

There are several petitions for abortion after the gestational period when it is not accepted by medical. Some petitions are rejected by Courts while some are allowed to do abortion. The Calcutta High Court granted permission to abort the child at who was 34 weeks pregnant because foetus was diagnosed with incurable spinal condition. This judgement is the highest period after which a woman is granted permission to abort her child by courts in India.

Criticism against MTP act:

This act is criticised because of the conditions that it puts to carry out abortion. There are several criticisms about this act such as:
  • This act puts a time limit for the abortion to take place which is not adequate and it also infringes the fundamental rights of pregnant woman like- Right to life, liberty and Privacy as she is not allowed to choose whether to do abortion or not. She is controlled by the conditions put forward by MTP act which takes away her rights.
     
  • This act puts forward a very harsh condition to carry out abortion after 24 weeks of pregnancy which should only be carried out if approved by medical board irrespective of any circumstances. A medical board consist of gynaecologist but according to a report of Ministry of Health and Family Welfare on Rural Health Statistics, 2019-20[6] shows that there is 70% shortage of gynaecologist in rural areas and according to this act unless and until medical board approves for abortion, it cannot take place so many unsafe and illegal abortion takes place due to shortage of specialist and due to delay in approving abortion by medical board.
     
  • This act gives a narrow definition of physical health and it also ignores the socioeconomic impact on the birth of child which puts women under serious physical, mental as well as social stress.
     
  • This act is also criticised because it contradicts Supreme Court's recognition of autonomy of a woman in respect to her body and privacy.
Conclusion:
It is very much necessary that proper and adequate rules and regulations are made to carry out abortions because abortion is a complicated task and is a work of delicacy and if it is conducted in an unsafe and illegal manner then the risk increases manyfold and there are strong chances of increasing maternal mortality, so rules are required to carry out such works but that rules should not be very much harsh that people are forced to choose unsafe methods.

The above MTP act can be relaxed more so that safe abortions can took place easily. The time period mentioned for abortion to take place without intervention of medical board should be more relaxed to 2 or 3 weeks more and after that increased time period medical board should come in play.

It is also very much important to increase the number of specialists which are designated to carry out abortion by giving them proper training under guidance of well-established trainers and recruitment of such specialist should be more so that there is no shortage of doctors especially in rural areas as these areas are more prone for illegal and unsafe abortions.

In some cases, like in sexual assault, rapes and foetal abnormalities, the laws should be relaxed more as it puts a tremendous amount of pressure on the mind of a women and she needs time to recover from these situations, so in cases like this abortion should be based on discretion of women.

Therefore, women should have the facilities that are easily accessible and the laws should be that are easily implemented as mentioned above because everyone has right to liberty and have right over their body and in cases like abortion, laws should be made such that are women centric and beneficial for her health, mentally as well as physically.

End-Notes:
  1. Medical Termination of Pregnancy Act, 1971.
  2. Indian Penal Code, 1960.
  3. Medical Termination of Pregnancy (Amendment) Act, 2021.
  4. Justice KS Puttaswamy (Retd.) v. Union of India, 2017, Writ Petition (Civil) no. 494 of 2012, (2017) 10 SCC1.
  5. Constitution of India, 1950.
  6. Rural Health Statistics, 2019-20, Ministry of Health and Family Welfare.

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