In this blogpost, Rajnandini Mahajan, Student, RGNUL, Punjab analysis the Medical Termination of  Pregnancy Act, 1971

‘Abortion’ in generic sense of the term is used to mean deliberate termination of pregnancy. It is achieved by destructing the foetus or embryo. Abortion has always been a sensitive subject worldwide with valid reasons coming from both its supporters and opponents. As far as India is concerned, the abortion within 20 weeks of conception is legal. The provisions regarding abortion are elucidated in the Medical Termination of Pregnancy Act, 1971 (the MTP Act).  The important provisions of the Act are discussed herein.

Medical Termination of Pregnancy Act, 1971

Medical Termination of Pregnancy Act, 1971 (MTP Act) was enacted in 1971 after worldwide liberalisation of abortion laws started taking place. The act is largely based on the recommendations given by Shantilal Shah Committee in 1966. The important provisions of the Act are discussed herein.

DURATION

According to the Act, pregnancy can be terminated within 12 weeks of the term of pregnancy if a registered medical practitioner is of the opinion that at least one of the grounds for abortion as mentioned in Section 3 are satisfied. Pregnancy can also be terminated after 12 weeks but before 20 weeks if 2 registered medical practitioners are of the opinion that the grounds are satisfied. The opinion should have been formed in ‘good faith’.

GROUNDS

Section 3 of the MTP Act provides grounds for medical termination of pregnancy. There are total 6 grounds mentioned. These grounds include risk to life or grave mental and physical injury to the mother if the pregnancy continues, risk of physical/mental deformities or disabilities to the child if allowed to be born, pregnancy due to rape, risk to the health of woman because of the environment around her and failure of device/method used to limit the number of children by the married couple.

The explanation to Section 3 indicates that there is a presumption of grave injury to mental health in case of pregnancy due to rape. Mental anguish in the case of failure of contraceptive methods used by a married couple is also presumed to have caused grave injury to the mental health of the woman. The section explicitly mentions ‘married couples’ and thus, pregnancy caused due to the failure of contraceptive methods during pre-marital sex by an unmarried couple is not covered by it. The section does not explain many terms such as ‘reasonably foreseeable environment’, ‘mental injury’ etc. This leaves the onus of interpreting these clauses on the medical practitioner. Further, these terms are very subjective and will depend on the facts of each case.

PROCEDURE

The act prescribes the qualifications that a medical practitioner should hold and the facilities a hospital should possess in order to conduct an abortion legally. According to the Act, the medical practitioner should:

• Have recognized medical qualification as defined in cl. (h) of Sec.2 of the Indian Medical Council Act, 1956
• Have his name registered in the state medical register
• Have experience in gynaecology or obstetrics as may be prescribed by the rules made under the act.

The doctors who possess these qualifications automatically become eligible to perform abortions.  Further a doctor cannot refuse to do abortions on religious grounds.

The Act also prescribes for the medical facilities where pregnancy can be legally terminated. It could take place only at a place which is approved by the government for this purpose or is a government hospital. Government approval for the same is sanctioned only to the places where

• termination of pregnancy is done in safe and hygienic conditions
• An operation table and instruments for performing abdominal, gynaecological surgery, anaesthetic equipment, resuscitation equipment and sterilization equipment
  long with drugs and parental fluids for emergency use is present.

Exceptions are made in the case of emergencies where termination of pregnancy is necessary to save the life of the mother. In such cases, the requirements of opinions of 2 medical practitioners, the time limit of 20 weeks and place of operation do not apply.

CONSENT

Section 3(4) clarifies that for termination of pregnancy, consent of the woman is essential. If the woman is lunatic or a minor, then the consent of guardians is required in writing. Consent of the husband or partner of the woman is not necessary for her to proceed with termination of pregnancy. In Dr. Nisha Malviya and Anr. Vs. State of M.P[1] where the court held, the rapists, guilty for forcefully causing abortion of a woman they had raped without her consent. Thus, mental anguish arising out of rape can be the reason for medical termination of pregnancy but rape per say is not. The consent of the woman is essential even in the case of rape. The irrelevancy of consent of husband in abortion is a debatable issue. The right of the father on the child is derogated by this provision.

Problems relating to Abortion in India

While some of the problems are due to loopholes in the law, many others are societal. Firstly, the Act does not define important terms like ‘abortion’, termination of pregnancy’, grave mental injury’, etc. This leaves the decision on the interpretation of the medical practitioner.  Further, unwanted pregnancy is not a ground. Thus, many unmarried females resort to unauthorised abortion clinics to remain unknown. Apart from being unsafe, this often leads to a woman losing her ability to conceive. Many women due to unawareness or ignorance use herbs given by quacks or village midwives to perform abortions which lead to incomplete abortions and excessive bleeding.  Even many government hospitals are unhygienic and unfit for abortion.[2]

Apart from this, the duration of 12-20 weeks is not enough to detect many abnormalities which start showing up only after 18 weeks. This lacuna in the act was highlighted in Niketa Mehta’s case[3] where Bombay High Court did not allow abortion of 24 weeks old foetus which had a heart defect. In order to address these problems, the government has drafted Medical Termination of Pregnancy (Amendment) Bill, 2014. This bill seeks to raise the window to 24 weeks in certain situations. It also envisages addressing the problem of shortage of trained midwives and inaccessibility of government health care facilities in rural areas by allowing Unanai, Ayurvedic and Siddha practitioners to carry out abortions but only through medical means and not surgical means. It has been many years since the passing of the MTP Act, and the medical technology has developed leaps and bounds. The attitude of society has also changed with time. Thus, change in the law to accommodate technological advancements & societal growth is the need of the hour.

[1] 2000 CriLJ 671

[2] http://www.firstpost.com/living/shamed-and-scarred-stories-of-legal-abortions-in-india-1179659.html

[3] Dr. Nikhil D. Datar v. Union of India & Ors., SLP (C) 5334 of 2009