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Understanding Abortion Law

Women are blessed with the gift of giving birth or bringing a new life. So, we should understand that they should have all the rights regarding whether she wants to keep the unborn or not. Controversies exits in relation to the right of the mother for abortion or the right of the foetus to live. Prior to 1971, abortion was a criminal offence, except in life threatening cases conducting an abortion was a criminal offence.

Anyone who conducted voluntary abortion to a women could face 3 years of imprisonment or fine, and a woman availing the abortion could face seven years of imprisonment or fine. Let us understand what abortion really means:
In criminal law, the term abortion, refers to intentional termination of pregnancy. In common usage, it means premature expulsion of foetus during the time of pregnancy.

According to medical terminology, abortion refers to termination of pregnancy before the foetus is capable of extra-uterine life generally considered to be prior to the 20 week of gestation or the conceptus achieving a mass of less than 500 gm or a crown-rump length of 18 cm.[1]

Abortion is broadly classified into two types: natural or spontaneous abortion and induced or artificial abortion. A natural abortion occurs due to the natural causes. It occurs either spontaneously or accidently, and 80% spontaneous abortions occur during the second and third month of pregnancy.

About 20% to 30% of women with confirmed pregnancies bleed during the first 20 weeks of pregnancies which they mistake for late menstruation; half of these women spontaneously abort.

Spontaneous or natural pregnancy is of following types:

  1. Threatened abortion, it refers to vaginal bleeding occurring before gestation without cervical dilation and indicating that spontaneous abortion may occur;
  2. Inevitable abortion, refers to vaginal bleeding or rupture of the membranes accompanied by dilation of the cervix;
  3. Incomplete abortion, expulsion of some products of conception;
  4. Septic abortion, refers to serious infection of the uterine contents during or shortly before or after an abortion;
  5. Missed abortion, undetected death of an embryo or a foetus that is not expelled and that causes no bleeding;
  6. habitual abortion, 2 or 3 consecutive spontaneous abortion.

Induced or artificial abortion refers to abortion done intentionally by medications or instruments. An artificial abortion is justifiable when it is done in the good faith for the safety of mother as the continuation of pregnancy endangers the mother's life.

According to the first national study of the unintended and incident pregnancy in India, an estimated 15.6 million abortions were performed in 2015. This means an abortion rate of 47 per 1000 women aged 15 - 49, similar to abortion rate in neighbouring South Asian countries. In the study conducted by the researchers at the International Institute for Population Science, Mumbai; the Population Council, New Delhi; and the New York-based Guttmacher Institute, found that out of the total 48.1 million pregnancies in 2015, about half of that were unintended. The estimated unintended pregnancy rate was 70 per 1000 women aged 15 - 49 ages, which is similar to the rates of Bangladesh (67) and Nepal (68) and much lower than Pakistan (93).[2]

Reasons for abortion:

There can be many reasons why a woman might go for abortion:

  • Sexual activities by the teenage girls before marriage,
  • Not being financially stable or ready to handle the burden of pregnancy,
  • The decision of the parent to stop having a child after one,
  • Unwanted pregnancy of sex workers,
  • Rape victims, and
  • To save the life or physical or mental health of mother.

Conditions required to be fulfilled for abortion

According to the section 3 of The Medical Termination of Pregnancy Act, 1971, a doctor can perform an abortion if the pregnancy would harm the physical or mental health of the mother. The doctor needs to consider the circumstances to figure out if the pregnancy will harm the mother's mental health. If there is a chance that the child would suffer from physical or mental abnormalities which would lead him/her to be handicapped.

Abortion as a fundamental right

Article 21 of Indian constitution recognises the right to life which says:
No person shall be deprived of his life and personal property except according to the procedure established by law.

It includes both men and women.[3] Right to abortion is recognised under the right to privacy which is a part of right to personal liberty and which emanates from right to life.

In Suchita Shrivastava v/s Chandigarh Administration[4], the Supreme court and High court of Madras have respectively affirmed women's right to choose whether to continue the pregnancy or not. A woman, who was an orphan and also mentally unstable became pregnant as a result of rape which took place while living at a government run welfare institute located in Chandigarh. In this case, the Supreme court clearly held that the state has an obligation to ensure the women's reproductive rights as a component of her article 21 right to personal liberty, dignity and privacy.

In Laxmi Mandal v. Deen Dayal Hari Nagar Hospital[5], the Delhi High court ruled that preventable maternal death represents a violation of Article 21 of the constitution. This case was brought on behalf of Shanti Devi, a woman of scheduled caste who died because of being refused adequate maternal healthcare despite of the fact that she qualified for free services under existing state sponsored schemes.

The court related its judgment to the decision in People's Union for Civil Liberties V. Union of India[6] on the right to food and noted that this case highlighted two main survival rights enforceable under the article 21 of the Indian Constitution that protects the right to life; the right to healthcare, including the right to access health facilities, to get minimum standard treatment and care, the reproductive rights of the woman and the right of nutrition and medical care of a new born child; and right to food which is integral to the right to health and life.

The court noted that all these points are interrelated and emphasized that the lack of effective implementation of health and nutrition schemes essentially creates denial of the right to life. This landmark judgment created a state obligation to take steps to end preventable maternal death, including deaths caused as a result of inadequate access to safe abortion.

Punishments for illegal abortion

  • Abortion of under 4 - 5 months pregnancy - the punishment for illegal abortion is imprisonment for up to three years in jail or fine for both the doctor and the mother unless it was done in good faith.
  • Abortion of over 5 months pregnancy - the punishment is higher as the movement of the foetus can be felt. Both the doctor and the mother can be punished with the jail time of up to seven years and fine unless it was done in good faith.
  • Abortion without the consent of the mother - if anyone forces the mother to abort or performs abortion without the consent of mother, they can be punished with the jail time of 10 years and fine.
  • Abortion results to death - if the patient dies because of the abortion performed by an unskilled person then they can be imprisoned for up to 10 years and fine. If the abortion was conducted without patient's permission, then the doctor can be imprisoned for life.
  • Intentionally causing the death of the foetus can also be prosecuted under provision of IPC, 1860 under which the punishment can extend up to 10 years.[7]


Who can perform the abortion?

According to Medical Termination of pregnancy Act the procedure of performing the abortion can be done by:

  • A Registered Medical Practitioner who is registered under the Indian Medical Council Act
  • A Registered Medical Practitioner whose name is registered in the State medical register.
  • A RMP who has experience or training in gynaecology and obstetrics under MTP rules.[8]

Whose consent is required for the abortion?

The Medical Termination of Pregnancy Act provides that only the consent of the woman who is undergoing abortion is required. But, in the case of minor or mentally retarded woman the consent of the legal guardian is required in a written format.

Indian laws on Abortion

The Indian Penal Code, 1862 and Criminal Procedure Code, 1898 with their origins in the British Offences against the Person Act 1861, made abortion a punishable crime for both the woman and the doctor except to save the life of the woman. The liberalising of abortion law in India came into force in 1964 in the context of the maternal death due to unsafe abortion. Doctors frequently came across many gravely ill or dying mothers who had unsafe abortion carried out by unskilled practitioners.

They realised majority of women seeking abortions were married ad under non-socio-cultural pressure to conceal their pregnancies and that decriminalizing abortion would encourage women seek abortion services in legal and safe settings.
In IPC sec 45 describes the word life which:
Denotes the life of a human being, unless the contrary appears from the context.

It acts as an exception to the rule of punishment for abortion of the woman and permits to take an act of abortion if it is for the good faith of saving the life of the mother.

Section 312 to 316 of the IPC deals with the punishment pertaining to the act of illegal abortion and punishes imprisonment of 3 to 7 years according to the circumstances. Under section 312 of IPC whoever causes miscarriage to a woman voluntarily which is not caused for the good faith of saving the life of woman, is punished with 3 or 5 years of imprisonment, or with fine, or with both. If the woman causes miscarriage herself then the punishment can extend to 7 years and will also be liable to fine. The offence is not cognizable, bailable and non-compoundable.

Section 313 of IPC makes it punishable to cause miscarriage to a woman without her consent. To understand this section the words, like voluntarily, with child, good faith and quick with child have to be understood. Section 39 of the penal code defines voluntarily as a person is said to cause and effect voluntarily when he causes it by means, whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reasons to believe to be likely to cause it. Voluntarily causing miscarriage would include such acts as the delivery of medicine for that purpose.

The gravity of offence is enhanced. This section draws no distinction between women with child or women quick with child and punishes only the person who causes the miscarriage, because the women is not a consenting party. The prosecution has to prove all the points mentioned in the section 312 and also the absence of the women's consent. The offence is cognizable, not bailable and not compoundable and is triable in the court.

Under section 314 it is mentioned that the accused intending to cause the miscarriage to a woman with child causes her death even if its unintentional, for him the punishment can extend to 10 years and is also liable for fine, if the act is done without the consent of the woman can be imprisoned for life.

Under section 315 the accused is punished with 10 years of imprisonment or with fine or with both for causing the death of the child before the birth or does such acts to prevent the child from being born alive or causing it to die after its birth which is not done for the good faith for the purpose of saving the mother.

Under this section 316 of IPC the offender need not necessarily cause abortion or intend to kill the child. But, if his acts cause death of the child though neither intended nor desired, he would be guilty of this offence. Thus, under this section, causing death of a quick unborn child by any act amounting to culpable homicide is punishable up to 10 years imprisonment and fine. The offence under this section is cognizable, not bailable, not compoundable and triable by the court of session.

Medical Termination of Pregnancy

On 25 August, 1964, the Central Family Planning Board recommended the Ministry of Health to constitute a committee to study the need of legislation on abortion. The recommendation was adopted in the latter half of 1964 constituting a committee which was called Shanti Shah Committee. After analysing a vast expanse of statistical data available at that time, this committee issued its report on December 30, 1966. On the basis of this report, the government passed the Medical Termination of Pregnancy Act, 1971 and liberalised abortion laws in India. [9]

This act states that the abortion should be done by the medical practitioner in good faith where there is a risk in carrying the pregnancy should be terminated within 20 weeks and should not exceed it. It also states that the act should take place in government hospitals only.[10] It deals with various aspects like the time, place, and circumstances in which a pregnancy may be terminated by a registered medical practitioner. It legalizes abortion in case where there is failure of contraceptives or where the pregnancy affects the physical health and mental of the mother, consent of the mother is mandatory unless she is a minor or lunatic when her guardian's consent is required.

The act does not protect the unborn child, any indirect protection it gains under this act is only a result of the protection of the woman. An important feature of the Act is that it does not permit termination of pregnancy of the woman after 20 weeks. Under MTP Act, abortion is legal up to the second trimester, but it is at the absolute discretion of medical opinion.
The medical Termination of Pregnancy Rules and Regulations 1975, define the criteria and procedures for approval of an abortion facility, keeping records, procedures for consent and ensuring confidentiality. Any abortion done at a hospital or other facility without prior approval of the government is deemed illegal and the onus is on the hospital to obtain prior approval.[11]

In Nikhil D. Dattar v. Union of India[12], section 3 and 5 of MTP Act was challenged on the ground of non-inclusion of eventualities vires of the Act. In this case the foetus was diagnosed for complete heart block thus the Petitioner, in her twenty sixth week of pregnancy, had sought termination of pregnancy. The petitioner contended that section 5(1) of the MTP Act should be read down to include the eventualities in section 3 and consequently, a direction should be issued to the respondents to allow the petitioner to terminate the pregnancy.

While dismissing the petition the court further held that since, twenty-six weeks of pregnancy has already passed the court could not pass any direction for exercise of right under section 3. This case further reiterated that the physical and mental trauma which may be experienced by women in such circumstances. The case also highlighted the ethical issue faced by the doctors in similar situations.

Later in 2002, the Act was amended and in 2003 it was decentralised stating that the abortion can take place in private hospitals following the proper guidelines. This increased access for women to have better facilities and with better equipment in the private sector.[13]

In 2014 again, a bill was proposed to amend the MTP bill. This bill proposed that the 20 weeks gestational abortion period should increase to 24 weeks and also all the women irrespective of their marital status should be given the right to abortion.

In January 2018, the same bill was introduced in the Lok Sabha with an addition that the gestational period should increase to 27 in the case of rape victims. In this year, Women's Sexual, Reproductive and Menstrual Right Bill was introduced by Sashi Tharoor in against the opinions of practitioner for the pregnancy cases not exceeding 12 weeks but it had no effect on the 20 weeks gestational abortion period.

In 2019, a case was filed in Supreme Court of India regarding the 20 weeks gestational period. The amendment awaits cabinet approval.

The amendments in MTP in 2021 are - Under the MTP act 2021, now all pregnant women can terminate their pregnancy up to 20 weeks on the advice of one registered practitioner and in case of special categories of women like survivors of sexual abuse, rape victims, minors, differently able women, termination up to 24 weeks on the advice of 2 registered practitioners. In addition to this, if there is a case of foetal abnormalities, termination of pregnancy can be done any time during gestation period.

Earlier a woman had to be married to seek permission for abortion in case of failure of contraceptives. Now, even unmarried women can seek safe abortion services on the grounds of contraceptive failure. The best amendment in this act is that medical practitioners will only be allowed to reveal the identity of the women who have undergone an abortion to a person authorised by the law and no one.[14]

Conclusion To sum, while India's abortion laws are intended to assist emancipate its women, its implementation and substantive features are riddled with major flaws. There is a need to revise the MTP Act to keep it up to speed with new technology and medical practises. There is also a need to alter the POCSO Act to remove the conflict with the MTP Act. India's medical and legal infrastructures both need to be improved. As a result, the time has come for the government and civil society to work together to strengthen the substantive and implementational aspects of India's abortion laws and policies.

End-Notes:
  1. Hari, M. (2019). Abortion Laws in India. 1-2. https://www.legalhelpclub.com/wp-content/uploads/2019/08/Abortion_laws_in_india-by-Legal-Help-Club.pdf
  2. Rose, C. (2017). National Estimate of Abortion in India: study finds 15.6 million abortions occur annually. Guttmacher. https://www.guttmacher.org/news-release/2017/national-estimate-abortion-india-released
  3. Dubey, A. (2020). Abortion Law in India. Indian Law Portal. https://indianlawportal.co.in/abortion-law-in-india/
  4. (2009) 14 SCR 989
  5. 2010 (172) DLT 9
  6. AIR 1997 SC 568, (1997) 1 SCC 301
  7. Srivastava, S. (2017). Law on Abortion. Vikaspedia. https://www.vikaspedia.in/social-welfare/women-and-child-development/women-development-1/policies-and-acts-1/law-on-abortion
  8. Dubey, R. (2021). Abortion Laws in India. Rest The Case https://medium.com/@ravidubey7978/abortion-laws-in-india-9a01a49a4f1f
  9. Hari, M. (2019). Abortion Laws in India. 1-2. https://www.legalhelpclub.com/wp-content/uploads/2019/08/Abortion_laws_in_india-by-Legal-Help-Club.pdf
  10. Mehrotra, A.N. (2019). Abortion Laws in India. Lawyered. https://www.lawyered.in/legal-disrupt/articles/abortion-laws-india/
  11. Dubey, A. (2020). Abortion Law in India. Indian Law Portal. https://indianlawportal.co.in/abortion-law-in-india/
  12. [SLP (C) 5334 of 2009]
  13. Mehrotra, A.N. (2019). Abortion Laws in India. Lawyered. https://www.lawyered.in/legal-disrupt/articles/abortion-laws-india/
  14. Dubey, R. (2021). Abortion Laws in India. Rest The Case https://medium.com/@ravidubey7978/abortion-laws-in-india-9a01a49a4f1f

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