Background of the Medical Termination of Pregnancy Act, 1971
The moral and religious view regarding Abortion in India and elsewhere has remained archaic where it is seen as sin that should be punished. The British laws categorized abortion under the Offences against a person, and thus the Indian Penal Code, 1862 and Criminal Procedure Code, punishing the woman and the abortionist for carrying out abortion, unless it was done to save the life of the woman.
The liberalization of abortion law movements in West in 1960s and `70s had its impact in India as well by opening a dialogue on the issue. The higher rate of female mortality due to unsafe abortion was acknowledged by medical fraternity. Consequently, Shah Committee was formed to carry out comprehensive research on socio-religious, medical aspects of abortion. It submitted its report in 1966 with recommendation to bring out a legislation legalizing abortion. This brought the enactment of Medical Termination of Pregnancy Act, 1971.
Interestingly the terminology of the Act which focuses on medical necessity rather on the ‘Right on Reproductive Right’ is a sign of ethical debate around this issue.
Salient Features of MTP Act, 1971
Section 3 of the Act gives immunity from offence under IPC to (only) registered medical practitioner, if she
Terminates a pregnancy within the length of 20 weeks: This is applicable in situation where any pregnancy occurs as a result of failure of any device or method used by the female and her partner for the purpose of limiting number of children or pregnancy. This anguish is presumed to cause grave mental injury to the female.
Terminates pregnancy within length of 24 weeks: At least two medical practitioners, in good faith, should have opinion that the continuance of pregnancy would cause grave risk to physical or mental health of female or there is substantial risk that the pregnancy will result into a physically or mentally impaired child.
In case of pregnancy caused by rape, the anguish will be presumed to constitute grave injury to mental health of female.
Thus, the Act limits the option of Abortion to 20 weeks in case of unplanned pregnancy, and extends to 24 weeks in case of medical reasons or pregnancy out of rape. However, a safeguard of ‘registered’ medical practitioner is added to prevent unsafe means of abortion.
Section 4 is significant in recognizing ‘autonomy of women over their body’ and prevention of abortion for the purpose of sex-determination by providing that no pregnancy shall be terminated except for consent of the pregnant woman. However, in case of a female under 18, or a mentally unsound woman of whatever age, consent of guardian is required.
2021 Amendment:
The significant modifications in the Parent Act are:
Safe Abortion rights extended to unmarried women too. Earlier, only married women on contraceptive failure could avail legal abortion.
Time limit increased from 12 to 20 weeks on advice of one doctor for any kind of pregnancy of any woman.
Time limit increased to 24 weeks in case of special case, such as rape, incest, minors, disability. In case of foetal abnormality, pregnancy can be terminated at any stage on the determination of request by state-level medical board.
Confidentiality clause to prevent the medical practitioner releasing the details of abortion to any person except the one authorized by law. This is an important factor as lack of confidentiality often compels women to resort to unsafe means or shady clinics.
LATEST LANDMARK CASE LAWS
Calcutta HC judgement of Feb 18, 2022: The judgment of Calcutta High Court was hailed as an unprecedent judgment by any Indian Court in permitting termination of pregnancy at 35 weeks. The Medical Board had confirmed the spinal cord defect in foetus.
Bombay HC judgment of July 27, 2022: The petitioner, a mentally challenged rape victim, was denied permission to abort 35-week pregnancy as the Medical Board’s opinion cited high risk to maternal health.
X through Father v State, 2021: X was a minor and physical abuse victim. She wanted termination of her 24 weeks of pregnancy on the ground of her mental health. The Bombay High Court permitted the termination citing legislature’s expansion of scope of ‘injury’ to include mental health. It also based the rationale on the respect of choice of rape victim, even if minor, in deciding about pregnancy.
S vs State: S a rape victim, approached the Bombay High Court for termination of pregnancy at 27 weeks. In this case, for the first time, the Court talked about the option of feotal injection to terminate pregnancy.
X vs Principal Secretary Health and Family Welfare Department and Anr: This is another historic ruling by the India’s Supreme Court in the most recent times, especially significant because it holds beacon of hope for reproductive rights of women when the US Supreme Court, on June 24, 2022, overturned the landmark Roe v Wade judgment which had protected the rights of women across the country to access safe abortion. In this case, the Bench presided by Justice D.Y. Chandrachud of Supreme Court allowed an unmarried woman medical termination of pregnancy of 24 weeks arising out of consensual relationship. The Apex Court applied the test of constitutional validity in applying the harmonious rule of statutory interpretation of Rule 3B of Medical Termination of Pregnancy Act, 1971, and dismissed the narrow interpretation of Delhi High Court. The Court held that women’s right to reproductive choice is an inseparable part of personal liberty under Article 21.
ABC vs State, 2021: A minor approached the Bombay High Court for termination of her 24 weeks of pregnancy. The Court while permitting termination, overruled the opinion of Medical Board that there is no harm to health of minor in continuing of pregnancy. The Court held that the Board overlooked the impact on mental health of the female because of social stigma in country regarding unwed mothers.
CRITICAL APPRAISAL OF THE ACT:
The Analysis of the MTP Act along with the Judicial Pronouncements brings out following promising points:
The Amendment of 2021 has widened the scope of ‘injury’ to include mental trauma. In various judgments, despite the restricted view of the Medical Board that scaled pregnancy only as per physical injury, the Court took a broad view in taking into consideration practical challenges to the woman if pregnancy is not terminated.
A shift from ethical questions to women’s right on her body autonomy is visible in the judgments, there the Courts have recognized the Reproductive Rights under the ambit of Right to Life. Most importantly, the focus has moved to the consent of the woman, including minor.
In cases of medically defective foetus, the Courts have taken a liberal view in permitting the woman to terminate pregnancy at advance stage also. However, where the risk to maternal life is high, the permission is not given.
The notable progress is the evolvement in the Judicial pronouncements where the Right to Safe Abortion has moved from selective Right to universal right by permitting termination of pregnancy even in case of consensual sex involving an unmarried woman.
However, the Act and the Amendment of 2021 are criticized by the women rights activists and scholars. A major criticism is that the Medical Board, not the women have final say in the termination of pregnancy. The requirement of second doctor opinion in third trimester restricts access, mainly in rural areas.
At execution level, there is gap in law and its regulation in the health care sector. Often, the women are denied abortion by the doctors either because of unawareness about law or their personal bias. The approval of medical board in special cases is another tardy factor, which impacts the option of safe abortion as time is a critical factor. The NFHS 2015-16 data shows that only 53% of abortions were performed by registered medical doctors. During Pandemic, the figures were quite high because of limited or no access to healthcare system.
Another challenging area is the conflict of MTP Act with other laws, which dilutes the safeguards in MTP Act. For example, in POCSO Act, if a minor conceives and wants to abort, the matter has to be reported to the police. Also, in Drugs and Cosmetics Act, 1940, the medical abortion pills are classified under Schedule H, hence mandates the pharmacy to maintain a record of sale. This goes against the provision of confidentiality clause in MTP Act. Further, the terminology of the statute recognizes only ‘woman’s’ Right to safe abortion, thus leaving out LGBT+.
Also noteworthy to mention is a recent observation by the Supreme Court in August 2022, where the two judge Bench of Justice D.Y.Chandrachud and J.B. Pardiwala, upheld the bodily autonomy and dignity to women by removing the restriction on unmarried women from termination of pregnancy upto 24 weeks. Emphasizing the forward-looking interpretation of the law, the Court brought the focus on the legislative intent, where the law has used the word ‘partner’ not husband. Further, the medical risk is same for both married and unmarried women.
About 73 countries practice abortion as woman’s choice and on-demand. In India, abortion is not decriminalized. The Section 312 of the IPC makes MTP Act an exception to this offence. This can be rationalized on the ground that in India, sex-selection is another social evil which may drive the abortion on-demand if it is decriminalized. The laws in India have progressed since their inception by recognizing consent of the woman, mental injury and more access to the women of all categories. To make the choice of safe-abortion accessible to women, it is recommended to simplify the certification process, create more qualified providers and facilities, especially rural areas and application of uniform standards for both private and public healthcare sector.
References
Cases:
1. ABC vs State of Maharashtra, WP 6264 - 2021
2. Roe v Wade, 410 US 113 (1973)
3. X vs State of WB, 2022
4. X through Father vs State of Maharashtra, WPL 11131-2021
5. X vs Principal Secy Health and Family Department & Anr, 2022, SC 621
Statutes
6. The Medical Termination of Pregnancy Act, 1971, Act No. 34 of 1971
7. Indian Penal Code, 1860, No. 1, Acts of Parliament, 1860 (India)
Articles:
8. International Institute for Population Sciences and ICF, 2017, National Family Health Survey-4, 2015-16, India
9. Siddhivinayak S Hirve (2004) Abortion Law, Policy and Services in India: A Critical Review, Reproductive Health Matters, 12:sup24, 114-121, DO, https://doi.org/10.1016/S0968-8080(04)24017-4
10. Yadav, Mukesh. (2022). Nine Members Medical Board' Recommendation and Consent of Couple: Ground for MTP at 35 Weeks Gestation A Case Report: Calcutta High Court.
Written By,
Vartika Sharma,
Intern, Chanchlani Law World
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