This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a comparison between abortion and miscarriage with respect to Indian laws.
This article has been published by Abanti Bose.
Miscarriage and abortion are both regarded as immoral all throughout the world. Many people were for and against the Anti-abortion Bill that was passed in the United States. While some feel abortion is murder, others believe it is a woman’s right to choose. These two viewpoints are also popular in India, and being a religiously conscious culture, some Indians consider abortion to be a religious offence. Various medical jurists have provided a generic meaning for this phrase. The “expulsion of the ovum or embryo from the uterus following conception” is one such definition. The time limit for having a miscarriage or having an abortion varies from country to country. In India, the Indian Penal Code, 1860, was the only legal protection for women dealing with miscarriage and abortion until 1971. The Central Family Planning Board proposed to the Ministry of Health in 1964 that abortion be legalised. The Shantilal Shah Committee was constituted for this purpose, and the government approved the Medical Termination of Pregnancy (MTP) Act, 1971, after receiving its report in 1966. The present article provides a comparison between abortion and miscarriage with respect to the laws governing them, challenges faced by them and the way they have been perceived over the years by the Indian legislature.
Choice and no choice : abortion and miscarriage
Abortions have been classified and definitions have been supplied by India’s National Health Portal. It is a method of terminating a pregnancy. The embryo or foetus, as well as the placenta, are removed from the uterus using medication or surgery. Early pregnancy loss, often known as spontaneous abortion or miscarriage, is one of the categories covered by the aforementioned site. It has been defined as “non-induced embryonic or foetal mortality or passing of products of conception before 20 weeks of gestation.”
According to the National Health Portal, miscarriages can be caused by a variety of factors, including hormonal issues, maternal infections, maternal health issues, autoimmune illnesses, uterine abnormalities, placental complications, or an incompetent cervix. When physicians notice any indications that might lead to one of the above-mentioned reasons of miscarriage early on, induced abortion may be recommended to save the mother’s life. The Indian Penal Code, 1860, solely addresses miscarriages, as opposed to induced abortion or medically terminated pregnancies, which are covered by the Medical Termination of Pregnancy Act, 1971.
According to Indian laws, the terms “miscarriage” and “abortion” are not used or defined. Instead, the term “medical termination of pregnancy” is used, and there’s a good reason for it. Rather than granting and protecting women’s reproductive rights, this word is designed to protect doctors from performing pregnancy terminations. Although this may appear to be a concern, physicians have been chastised for recommending abortion to their patients. While residents have always frowned upon miscarriage and abortion, ‘medical termination of pregnancy’ has eased the impact. This is due to the fact that the technique concentrates on terminating pregnancies in certain conditions.
Abortion v. miscarriage : a classic comparison
It’s crucial to understand the difference between abortion and miscarriage. All miscarriages are abortions, however, not all abortions are miscarriages. Miscarriage is a non-induced abortion that occurs owing to hormonal or biological issues.
Forms and kinds
Statutory provisions and legislations have categorized miscarriage and abortion into sub-categories. The same has been discussed hereunder.
According to Section 312 of the Indian Penal Code, 1860, miscarriage can take two forms:
- Causing a miscarriage in a woman who is bearing a child,
- Causing a miscarriage in a woman who is quick with a child.
For clarity, a woman is considered to be quick with a child when the fetus’ movement inside the womb can be felt. This movement can occur at various times for different women, but it normally happens between 15 and 16 weeks after conception.
The first part of the section is about women who are expecting a child. Whoever is responsible for the miscarriage of such a child faces a sentence of up to three years in jail, a fine, or both. The second part of the section specifies that anybody who miscarries a quick child can be sentenced to up to 7 years in jail and a fine.
There are two types of abortion, namely,
- Pill abortion: Medication abortion (commonly known as the abortion pill) involves the use of two separate drugs to end a pregnancy, mifepristone, and misoprostol. To empty your uterus, this drug produces discomfort and bleeding. It’s akin to having a heavy, crampy period, and the procedure is similar to an early miscarriage.
- Abortion in a clinic: An in-clinic abortion (sometimes known as a surgical abortion) is a medical procedure. It works by sucking the contents of your uterus out.
According to the Medical Termination of Pregnancy Act, 1971, if the abortion is performed within 12 weeks after conception, one doctor’s opinion is required. But, the Medical Termination of Pregnancy (Amendment) Act, 2021 (MTP Act, 2021) provides that abortion can be carried out on the advice of one doctor for up to 20 weeks, whereas advice of two physicians is required while administering abortion between 20 and 24 weeks for specific categories of women.
Laws and their take
Both abortion and miscarriage have legal sanctions when it comes to India. Both these subject matters are protected by statutes that have been in existence for over a long period. The right to abortion is not mentioned in the Indian Constitution, although some judges argue that it is protected by the Right to Life. The Supreme Court upheld the judgment of the Suchita Case in Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors (2018), holding that the Right to Privacy is a fundamental right and that the right to abortion falls under this purview, and that reproductive rights must be protected by the State. In the case of Devika Biswas v. Union of India (2016), the Supreme Court held that a woman’s reproductive autonomy is a fundamental right and that the decision to have or not have a child is hers alone and must be made free of governmental interference.
The Indian Penal Code, 1860, stipulates that causing miscarriages without the consent of the woman bearing the child, causing the death of such woman while causing miscarriage, preventing a child from being born alive or causing its death after birth, and causing such death by act amounting to culpable homicide, are all criminal offences.
- Section 312: As have been discussed previously, Section 312 of the Indian Penal Code, 1860 provides the two types of miscarriages and the possible consequences for the same.
- Section 313: This Section is related to Section 312 but without the consent of the mother who is carrying the child. It makes no distinction between a lady who is or is not carrying a quick child. This Section of the law carries a penalty of up to ten years in jail as well as a monetary fine.
- Section 314: The first half of this section specifies that any person who does anything with the intent of causing the miscarriage of a woman carrying a child, with the permission of the lady, is liable to imprisonment for up to ten years and a fine. However, if the miscarriage was produced without the woman’s consent and the woman’s death was caused by any act, the person who caused the miscarriage and death might be imprisoned for life or up to ten years. It’s worth noting that the offender doesn’t have to be aware that their actions are likely to result in the death of such a woman. The presence or lack of this knowledge would have no bearing on their liability under this Section, and they would be held accountable regardless of their knowledge.
- Section 315: This Section covers any activity that might prevent a child from being born alive, sometimes known as stillbirth, or any action that could result in the child’s death after birth. This implies that the child is deemed to be dead at the time of delivery or shortly afterwards, rather than when it is still in its mother’s womb, as in the case of miscarriage. Anyone found guilty of an offence under this Section faces a sentence of up to ten years in jail, a fine, or both.
- Section 316: This Section is dedicated to the death of an unborn child who died suddenly. An unborn child is a child whose motions have begun within the mother’s womb. This Section states that anybody who commits any act that results in the death of another person and would be guilty of culpable homicide but also causes the death of a quick, unborn child, has committed an offence under Section 316. They will be sentenced to ten years in jail as well as a fine.
The Medical Termination of Pregnancy Act of 1971 (presently Medical Termination of Pregnancy Act, 2021) is a law that allows certified medical practitioners to terminate certain pregnancies and regulates associated issues. Termination of pregnancies must be performed by registered medical practitioners with a recognized medical qualification, whose names are registered in the state medical register, and who have expertise in gynaecology and obstetrics.
Section 3 of the Act states that the above-mentioned practitioners are not guilty of the violations listed in the Indian Penal Code, 1860, or any other legislation if they terminate pregnancies in accordance with the Act’s provisions. This safeguards practitioners from miscarriage-related offences as defined by the Code. This is one of the reasons why some activists and supporters feel the Act is more concerned with preserving doctors’ rights than with safeguarding women’s reproductive rights.
Role of good faith
The concept of ‘good faith’ plays a key role in both abortion and miscarriage cases. Discussion concerning the same has been provided hereunder.
Sections 313 and 315 of the Indian Penal Code, 1860 lay down the relevance of good faith with respect to miscarriage. In the case of Section 313, which presents voluntary miscarriage as an offence, highlights that inducing a miscarriage must be done voluntarily and not in good faith. Such an act is deemed to be carried out in good faith with the sole intention of saving the woman’s life. This section shall be subject to the same basic requirements as the others, namely that the act must be voluntary and done without good faith. Therefore, the negative connotation attached to this provision reflects the importance of good faith in an act of miscarriage. It is the element of good faith that draws a line between legal and illegal acts.
Walking in the same direction, Section 315 also stresses the term good faith in a negative way thereby clarifying the fact that if an act is done in good faith, the same will not be categorized as an offence under Section 315 of the Indian Penal Code, 1860.
Section 3(2) of the Medical Termination of Pregnancy Act, 2021 which deals with termination of pregnancy by medical practitioners, specifies that the opinion to be provided by the medical practitioners to their patients before proceeding with abortion must be in good faith. Although the term ‘good faith’ has not been defined by this legislation, the same is followed in the same manner as provided by Section 52 of the Indian Penal Code, 1860. An interesting thing to note here is that the MTP Act 2021 attaches a positive connotation to the term ‘good faith’ with respect to abortion which in the case of miscarriage was the opposite, although both signify the same thing.
Section 3(1) of the Act (which provides a registered medical practitioner shall not be guilty of any offence under the Indian Penal Code, 1860 or under any other law for the time being in force if any pregnancy is terminated by them in accordance with the provisions of this Act), is subject to Section 3(2) of the Act of 2021.
It is a well-known fact that India is a patriarchal country that favours masculine gender over females. Despite this, Indian laws have begun to shift in favour of women’s rights, recognizing the years of oppression women have endured and enacting new legislation to address it. At the same time, Indian laws do not fully safeguard and guarantee the rights of women. There are still numerous laws that are outdated and do not address the challenges that women confront. In India, miscarriage is illegal, regardless of whether the woman asks for the induced abortion. The Indian legislature should strive to develop abortion and miscarriage legislation that respects women’s reproductive rights, just like the MTP Act, 2021. It is because of this legislation, India will now join the ranks of nations with a progressive law that permits legal abortions for a variety of medicinal, humanitarian, and social reasons. It is a watershed moment that will further empower women, particularly those who are vulnerable and rape victims. The Indian Constitution grants women the freedom to make reproductive decisions, and it is in the best interests of the residents of this nation, particularly its women, that the legislature acknowledges these rights.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: