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Overview Of Sudden Turmoil In Field Of Medical Law

Abortion is the technical terminology used for Medical Termination of Pregnancy. By the legal point of view, Abortion is Termination of pregnancy in the form of causing death of the embryo or foetus. This article deals with the most important issue in today's society, i.e., The Progenetive Rights of women and the regulation of abortion. In today's world, there is a huge difference of ideology between developed and developing countries as, In the United States of America, the recent overturning of Roe v. Wade's landmark judgement has been considered as a sudden shock not only in the U.S.A but also in other parts of the world including India as the above judgement is followed in many other countries.

Medical Termination of Pregnancy Act, 1971:

The Medical Termination of Pregnancy Act is Act 34 of 1971 which has the main purpose of providing bodily autonomy to women. Before the enactment of this act, abortion was considered as an offence for which punishment is provided under Indian Penal Code, 1860.

Section 312 of IPC states:
Whoever voluntarily tries to cause the miscarriage to a women except in the good faith or where the women's life in danger shall be liable for imprisonment which may extend to three years and shall also be liable to fine. Section 312 to 318 of IPC deals with offences related to newborn or unborn child.

The provisions of IPC were enacted according to the requirements of the British Era, form the very enactment of the IPC provisions, abortion is considered as crime in which both the mother and the abortionist are liable for the punishment.

The MTP Act has set various types of limitations in the form of:

  • When The Termination Is Permissible?
  • The Competency Of Abortionists; And
  • The Places Where It Could Be Performed

Rules for the Registered Medical Practitioner:

  1. The Registered Medical Practitioner shall not be liable for any offence under IPC or any other law if he/she has terminated any pregnancy in accordance with the provisions of the Act.
  2. There is need of only one Registered Medical Practitioner's aid for the termination of pregnancy where the length of pregnancy does not exceed twelve weeks.
  3. There is need of only one Registered Medical Practitioner's aid for the termination of pregnancy where the length of pregnancy is not less than twelve weeks and not more than twenty weeks.

Places Where Termination Of Pregnancy Is Permissible:

The place must be any hospital maintained by the central government, or the place which is for time being approved for the purpose of this Act by the government or other competent authorities like District Level Health committee.

Ethics of Medical Termination of Pregnancy:

The MTP Act doesn't defines any ethics for Medical Termination of Pregnancy but in the regimes where aborion is proscribed, their point of view includes various moral points including the main point of Traditional Christian Doctrines which says that All humans are made in the image of god and have an immoral soul.

Medical Termination of Pregnancy Regulations, 2003:

These regulations mainly focus on the privacy of the woman who is undergoing Abortion and custody of the confidential information which include personal informations of the woman. Mainly the word which is emphasised on is Admission Register which refers to the register in which all the information of the patient and the registered medical practitioner is written.

The Important Ones Which Are More Concerned Are:

  • The Registered Medical Practitioner/s has to submit and certify their opinions in the form appended to the regulations.
  • The Registered Medical Practitioner/s within the next three hours of the pregnancy termination has to do entry in the form.
  • The consent papers of the woman must be kept in the envelope and sent to the head of the hospital or the owner of the approved place or Chief Medical Officer of the state.
  • The serial number alloted to the woman, name and address of the Registered Medical Practitioner must be kept in the envelope and it must be marked SECRET.
  • It is the duty of the head of the hospital or the owner of the approved place to keep the envelope safe and provide the monthly statement of the termination cases to the CMO of the state.
  • Every head of the hospital or the owner of the approved place shall maintain an Admission Register for recording the details of the admissions of women for the termination of their pregnancies and keep such a register for tenure of five years.
  • The Admission Register is the confidential information which must not be open to any person other than the authorities.

Amendment of 2020 in MTP Act, 1971

This amendment mainly deals with the length of the pregnancy in specified circumstances like that in the case of rape victims. It amended the act to increase the upper limit for Termination from 20 to 24 weeks for some particular categories of women. Also this amendment removes this limit in the case of substantial foetal abnormalities and constitutes Medical Boards at the state level.

One of the reasons which can be behind the introduction of this amendment is the large number of cases that have been filed before the Supreme court and various High courts seeking permission for aborting pregnancies at stages beyond the 20 week limit under the act, on the grounds of foetal abnormalities or pregnancies due to rape faced by the woman.

Mainly, there are two differing opinions regarding regulating abortions. One opinion says that terminating a pregnancy is the choice of the woman and a part of her reproductive rights which approves bodily autonomy. The other opinion is the moral one which says that it is the duty to protect life and it should act in the furtherance to protect the foetus across the world.

Various countries have set various conditions and time limits for allowing abortion, based on various factors such as foetal viability, foetal abnormalities, or risk to the pregnant woman.

Roe v. Wade:

Roe V. Wade was a landmark judgement of the Supreme Court of United States in which the court ruled that the right to abortion is a fundamental right of woman and is conferred by the Constitution of India. This judgement was considered as a landmark ruling not only in the United States of America but also in other countries.

In January, 1973, the Supreme Court gave a 7-2 decision holding that Due Process Clause of the The Fourteenth Amendment of the United States Constitution provides a fundamental 'Right to Privacy' which protects the Right to Abortion of woman.

The court ruling also said that like other rights Right to Abortion is also not absolute and it has certain reasonable restrictions of government's interests in protecting women's health and prenatal life. The court resolved many issues by introducing Pregnancy Trimester Timetable and the main purpose for this timetable is to govern all abortion regulations in the United States.

Recent Overturning:
The U.S. Supreme Court overruled the 50 year old landmark judgement of Roe v. Wade that established the Women's Right to Abortion as fundamental. In Dobbs v. Jackson Women's Health Organisation, the ground which is stated by the U.S. Supreme Court for the overturning of the landmark judgement is that the right to abortion was not deeply rooted in the United Nations' history or tradition, and was unknown in the nation until Roe. The 6-3 judgement has made the states liberal than before as they can make their own Abortion law now and it will affect the tens of millions of people who may have now to cross state lines to seek reproductive health care.

Conclusion and Suggestions:
By analysing all the recent modifications in the MTP Act we can observe that this is a step towards establishing a society that is more conscious about the rights of woman, which is the most required trait of a liberal and developing society but the recent overturning of the landmark judgement is impacting the society in a negative way as it shows the denial of the Right to Abortion to the woman of the society which composes approximately half of the population.

The decision in Dobbs case has created havoc in the field of medicine law. The suggestion mainly is to apply this amendment for each and every woman and not only to a specific category of woman. Secondly, Being a law oriented society, we need various other laws to bring the women to a much empowered stage at which they can feel liberated as similar to men.

Various steps have been taken by the current regime in India like introducing various bills like Assisted Reproductive Technology (Regulation) Bill, 2020 and Surrogacy (Regulation) Bill, 2019. Also there is a need to quash this decision by introducing Roe case again and reintroducing the trimester framework.

The reason for the above suggestions is that this will be a better step to empower and prevent women from crossing the national borderso enjoy their progenetive rights. The basic reasoning behind this suggestion is that the law is made for the women to bestow them with their rights.

  • Medicine and Law (K. Kannan)
  • Medical Termination of Pregnancy Act, 1971 [Bare Act, 2003]

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