In this article, Alric Tirkey of Institute of Law, Nirma University discusses the grounds on which a doctor can refuse to perform an abortion in India. 

Legal definition of abortion

The term abortion is derived from the latin word ‘aboriri’ which means to detach from the proper site. According to medical language, abortion is termination of pregnancy before the period of viability or extraction or expulsion or extraction of all or any part of the placenta or membrane without an identifiable fetus or stillborn infant. Legally abortion the premature expulsion of the product of conception from the uterus at any time before the full term is reached. The law of abortion in India are governed under the medical termination of pregnancy act 1971.

Grounds for termination of pregnancy

Section 3 of medical termination of pregnancy act, 1971 provides on which termination of pregnancy is valid –

• Pregnancy can be terminated in a case where the length of the pregnancy does not exceed 12 weeks if such medical practitioner is,
• Where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, if not less than 2 registered medical practitioners are of opinion, formed in good faith or bona fide that:

1: The continuance of the pregnancy would involve a risk to the life of the pregnant women.

2: A risk of grave injury to her physical or mental health; or

3: If the pregnancy is caused by rape.

4: if is there is a presumption of the risk that the child was born it would suffer from some physical or mental abnormalities so as to be seriously handicapped.

5: Failure of any device or method used by the married couple for the purpose of limiting the number of children.

6; Risk to the health of the pregnant woman by the reason of her actual or reasonably foreseeable environment.

Consent for abortion

According to Section 3(4) of MTPA 1971 which clarifies as to whose consent would be necessary for the termination of pregnancy.

(a)according to the MTP act  no pregnancy of a woman is allowed who has not attained the age of 18 years or who have attained the age of 18 years is a lunatic shall be terminated except with the consent in writing of her guardian.

(b)  no pregnancy shall be terminated without the consent of the pregnant woman.according to MTPA 1971 the consent of the woman is the essential factor for the termination of the pregnancy. The consent of the husband or other is irrelevant if the woman wants an abortion and her husband objects it, abortion can still do.only if the pregnant woman is lunatic or mentally ill, the abortion can be done only with the consent of her guardian.

Abortion Permitted on Therapeutic Grounds

An abortion which is done with the aim to preserve the health of the mother when her life is in danger or when it is found that the child if both will be a disabled one at a time it is termed as therapeutic abortion.

Section 312 of the MTPA 1971 permits abortion only on therapeutic grounds with the aim to protect the life of the mother. According to law,  the unborn child, must not be destroyed except for the purpose of preserving its life of the mother. The provision by implication recognizes the fetus’ has the right to life. The threat to life, however, need not be imminent or certain. If the act is done in good faith the person is entitled to the protection of the law. But good faith is deceptive and ambiguous enough to protect most therapeutic abortions so long as they are conducted ostensibly to preserve the mother’s life. In fact, what constitutes good faith is not a question of law, but it is a question fact to be decided in each and every case according to the facts and circumstances.

Abortion has been legal in India since 1971 when the Medical Termination of Pregnancy Act was passed. The law is quite liberal, as it aims to reduce illegal abortion and maternal mortality.

The Act which legalizes abortion in India up to 20 weeks if it fulfills the following conditions:

• Abortion is  Performed by a registered medical practitioner as defined in the MTP Act.
• Abortion is performed in a place which is approved under the medical termination of pregnancy Act 1971.
• Other requirements such as gestation period, consent, and opinion of registered medical practitioners are fulfilled. According to the act, Abortion can be legally performed by the doctor up to 12 weeks gestation on prescription by one medical doctor and abortion performed up to 20 weeks gestation with the concurrence of two medical doctors.

Other Condition

Abortion has been legal in India since 1971 when the Medical Termination of Pregnancy Act was passed. The law is quite liberal, as it aims to reduce illegal abortion and maternal mortality. An abortion can be performed in India until the 20th week of pregnancy. The opinion of a second doctor is required if the pregnancy is past its 12th week. The Medical Termination of Pregnancy Act was amended which is aim to allow doctors to provide mifepristone and misoprostol (also known as the “morning-after pill”) on prescription up until the seventh week of pregnancy. An abortion is permitted in the following cases:

• A woman has a serious disease and the pregnancy would endanger her life.
• A woman’s physical or mental health is endangered by the pregnancy.
• The fetus has a substantial risk of physical or mental handicap.
• A woman contracts rubella (German measles) during the first three months of pregnancy.
• Any of a woman’s previous children had congenital abnormalities.
• The fetus is suffering from RH disease.
• The fetus has been exposed to irradiation.
• The pregnancy is the result of rape.
• A woman’s socioeconomic status may hamper a healthy pregnancy.
• A contraceptive device failed.

Procedure

Abortions can be performed in any medical institution that is licensed by the government to perform medically assisted terminations of pregnancy under the MTP Act 1971. Such institutions must have to display a certificate issued by the government. Abortions must be performed by a doctor with one of the following qualifications:

• A registered medical practitioner who has performed at least 25 medically assisted terminations of pregnancy.
• A surgeon who has six months’ experience in obstetrics and gynaecology.
• A person who has a diploma or degree in obstetrics and gynaecology.
• A doctor who was registered before the 1971 Medical Termination of Pregnancy Act and who has three years’ experience in obstetrics and gynaecology.
• A doctor who registered after 1971 and has been practising in obstetrics and gynaecology for at least a year.

Punishment

• According to Section 312 to 316 of the Penal Code provided that any person performing an illegal abortion was subject to imprisonment for three years and/or payment of a fine.

Section 312: ‘causing miscarriage’

“Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both, and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Explanation: A woman who causes herself to miscarry, is within the meaning of this section.”

• if the woman was “quick with child”, the punishment was imprisonment for up to seven years and payment of a fine.
• The same penalty applied to a woman who induced her own miscarriage.

Section 314: Death caused by act done with intent to cause miscarriage

“Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term may extend to ten years, and shall also be liable to fine.”

Section 315: Act did with intent to prevent child being born alive or to cause it to die after birth

“Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.”

Section 315: Act did with intent to prevent child being born alive or to cause it to die after birth

“Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both”.  

Sources referred

http://www.ili.ac.in/pdf/p10_bhavish.pdf

http://www.legalservicesindia.com/articles/pregact.htm

http://www.medindia.net/indian_health_act/medical_termination_of_pregnancy_act_1971/list-of-acts.htm

http://thelegiteye.in/2017/02/04/law-abortion-india/