What is abortion?

Abortion is the termination of a pregnancy. It is defined as 'the intentional ending of a pregnancy', by the Cambridge Dictionary[1]. There are 2 (two) ways to obtain an abortion, medical abortion and surgical abortion. Medical abortion is when the pregnancy is terminated using pills while in surgical abortion, doctors directly remove the fetus using methods like vacuum aspiration and dilation and evacuation.

Laws for abortion were enacted by most countries in the second half of the twentieth century. India was among the first countries to legalize abortion. Abortion in India is regulated by the Medical Termination of Pregnancy Act, which was enacted in the year 1971[2] (MTP Act) to reduce the instances of illegal abortions, which were a major cause for the rising mortality rate amongst mothers. It was also enacted to encourage family planning and keeping in mind population control. The Act has been amended from time to time in order to improve the conditions relating to the termination of pregnancy in different sections of the society.

History
Before 1971, termination of pregnancy through induced abortion was declared to be a crime by the Indian Penal Code, 1860, and the woman getting the pregnancy terminated was liable to be punished with imprisonment up to 7 (seven) years or a fine, or both. Induced abortion was only allowed in cases where the life of the pregnant woman was in danger.

This led to women resorting to unsafe abortions secretly which were generally not carried out by registered or qualified medical practitioners. The persons performing them were usually unskilled and did not use the best methods for conducting the procedure. This increased the mortality rate amongst mothers.

The Government of India appointed The Shah Committee, which carried out a complete review of different aspects of abortion, its effects, the category of women who were seeking it etc. It was found that many married women were also seeking abortions due to different reasons like health or family planning.

In 1966, The Shah Committee recommended that abortion should be legalized to prevent deterioration of women's physical and mental health and to reduce mortality rate on both medical and sympathetic grounds. The Shah Committee vehemently denied accusations from different States that the purpose of the law would be to reduce population. Thus, in 1971, the Parliament enacted the Medical Termination of Pregnancy Act, 197, which came into force from 1st April, 1972.

Laws Relating To Termination Of Pregnancy

Medical Termination of Pregnancy Act, 1971

In India, the primary law relating to the termination of pregnancies is the Medical Termination of Pregnancy Act, 1971, which was subsequently amended in 1975 and 2002. It was enacted with the objective to provide for the lawful termination of pregnancies by registered medical practitioners in certain cases only as have been laid down in the Act. The Act provides the circumstances in which a pregnancy may be terminated. It affords protection to the woman, and not the unborn child. Any protection which an unborn child may receive would only be the result of protection to the mother.

Who can terminate a pregnancy?

Only a registered medical practitioner can terminate a pregnancy in accordance with the provision of the Act. Any person who is not a registered medical practitioner cannot terminate any pregnancy, no matter what. The medical practitioner must act in good faith and without any malice or collusion for unlawful purposes with the woman or anyone related to her. The term 'good faith' is defined under Section 52 of the Indian Penal Code, 1860, as anything done with due care and diligence. The MTP Act, under Section 8, also provides protection to registered medical practitioners for acts done by them in good faith, even if such an act results in the death of the mother.

Case: In Murari Mohan Koley v. The State, a woman who wanted to have abortion on the ground that she had a 6 (six) month old daughter approached the petitioner, who was a registered medical practitioner for performing abortions. Due to some reasons, the condition of the woman deteriorated in the hospital. She was even shifted to another hospital but ultimately, she died. The abortion had not been done. The petitioner was required to establish that his action (and omission to do so) was done in good faith so as to exempt him from criminal liability under Section 3 of the MTP Act.

Termination Of Pregnancy-Time Period, Conditions and Place

Section 3 states that a pregnancy can only be terminated where the period of pregnancy does not exceed 20 (twenty) weeks and not after that. Under Section 3, for termination of pregnancy before 12 (twelve) weeks, the opinion of only one medical practitioner is required. However, if the termination is to take place between the time period of 12 (twelve) weeks to 20 (twenty) weeks, then at least 2 (two) medical practitioners should be of the opinion that if the pregnancy is continued:

• the life of the woman would be in danger; or
• her mental health would suffer as a result of the pregnancy; or
• there is a risk of grave physical injury to her; or
• the pregnancy is due to rape; or
• the pregnancy is due to the of failure of any contraceptive device or method used by a married woman or her husband; or
• there exists a significant risk that the if the child is born, he/she would suffer from such physical or mental abnormalities so as to be seriously handicapped for their lifetime.

Where the pregnancy is caused due to rape, it would inhuman to force a woman to continue with the pregnancy, which may lead to extreme mental anguish to the woman. Hence, in such cases, no trial or judgment is needed by the court to allow the abortion. The woman's allegation that she had been raped is sufficient.

Where the pregnancy is due to the failure of any contraceptive method taken by the woman or her husband to, termination of such a pregnancy is allowed so as to not subject the woman to the mental suffering caused by such unwanted pregnancy. The medical practitioners, in forming their opinion, will take into account all relevant factors, including the woman's surroundings or reasonably foreseeable situation.

Consent

No termination of pregnancy can take place, even in accordance with the provisions of the Act, unless the woman who is pregnant consents to it.

When a person is not capable of giving valid consent

In case the woman who is pregnant has not attained the age of majority, or even if she is a major, is not capable of giving a valid consent due to unsoundness of mind, consent will have to be given by her guardians in writing.

Cases: In Shri Bhagwan Katariya and Others V. State of Madhya Pradesh[3], a pregnant woman was taken by her husband and his family to get the fetus aborted. She did not consent to the said abortion. The Court held that although Section 3 of the MTP Act recognizes abortion done in certain circumstances without the consent of the woman, in the present case, the doctor and the family members of the woman would be held liable for getting the abortion done without her consent in the present case, which has caused immense mental anguish to the woman.

In the case of Dr.Nisha Malviya and Anr. V. State of M.P[4], a rape victim was allowed to terminate her pregnancy. The other co – accused in her rape took her and terminated her pregnancy. They were charged with causing miscarriage without consent of pregnant woman. The Court held all the accused guilty of termination of pregnancy as it had not been consented to by the mother of the pregnant woman or the woman herself.

Section 4 of the Act gives information of the place where legal terminations of pregnancies can take place. Such procedure can only be carried out in a hospital which is established or maintained by Government, or any place which has been given approval by the Government to carry out such procedures.

Exception: Section 5 contains an exception to the restriction of place and time of termination of pregnancies as in Sections 3and 4. In certain cases of emergency, where immediate termination of the pregnancy is necessary to save the life of the pregnant woman, the registered medical practitioners may disregard the time period of the pregnancy, even if it is more than 20 (twenty) weeks, and perform the procedure in the nearest convenient place, as the situation demands.

Sections 6 and 7 of the MTP Act empower the Central and State governments to make rules and regulations to give effect to the provisions of the Act.
A key point to note in the MTP Act is that the Act nowhere mentions the sex of the unborn child.

Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994

By early 90s, after the legalization of abortion, families began to exploit the ultrasound techniques to determine whether a son would be born or a daughter. Due to the preference of a male heir, daughters were being increasingly killed in the womb only. This was because families preferred to have a son rather than a daughter in India. This gave rise to an alarming situation of discrimination against women, while the industry of prenatal sex determination was flourishing.

The Pre-Conception and Pre-Natal Diagnostic Techniques Act was enacted in the year 1994 to ban the use of technology to determine the sex of the unborn child and put an end to sex- selection techniques. The Act aimed to reduce female feticides. However, the Act had certain shortcomings and no measures were provided for its effective implementation. It did not specify the sex – selection techniques. Thus, it could not bring within its scope all the techniques used.

A PIL was filed in the Supreme Court by the Centre For Enquiry Into Health And Allied Themes (CEHAT)[5] regarding the slow implementation of the Act. It was found that though the Act had been implemented in 1994, the State Governments and the Central Government had not taken appropriate actions for its effective implementation. Pursuant to the judgment of the Supreme Court, the PCPNDT Act was amended in 2003.

Section 4 of the Act clearly states that pre-natal diagnostic techniques shall only be conducted for detecting the following:

1. chromosomal abnormalities;
2. genetic metabolic diseases;
3. haemoglobinopathies;
4. sex-linked genetic diseases;
5. congenital anomalies;
6. any other abnormalities or diseases as may be specified by the Central Supervisory Board.

It further states that pre-natal diagnostic techniques should only be carried out if the person who is qualified to do so is satisfied that any of the following conditions are fulfilled:

1. age of the pregnant woman is above 35 (thirty five) years; or
2. the pregnant woman has undergone of 2( two) or more spontaneous abortions or fetal losses; or
3. the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals; or
4. the pregnant woman has a record of family history of mental retardation or physical deformities, which may include spasticity or any other genetic disease; or
5. any other condition as may be specified by the Central Supervisory Board.

The Act penalizes those who do not comply with the provisions of the Act in any manner, who may either be involved in sex determination or non-maintenance of records. The arrangement of the Act is such that it discourages people from indulging in any pre – natal sex determination practices.

Critical Analysis Of The Medical Termination Of Pregnancy Act

Even though the legislation for the termination of pregnancy has been around for more than 45 (forty) years, a lot is left desired in the Act. A majority of the women in the country are not aware that abortion is legal in India. The levels of awareness and knowledge regarding medically safe and legal abortions are distressingly low.

Women in rural areas and slums lack the basic sexual and reproductive knowledge. They do not have any idea about family planning and often, don't even get the gap of a year between 2 (two) pregnancies.

During the time the Act was enacted, the technology was not advanced. However, in today's world, technology has made progress by leaps and bounds and can determine the size of the brain and any defects in the brain, down syndrome, hereditary heart defects, the kidney functioning etc.

The issue is that such abnormalities can be detected only by the 20th (twentieth) or 24th (twenty fourth) week of pregnancy. This crosses the time limit of 20 (twenty) weeks of terminating a pregnancy as set out in the MTP Act. Such heart and brain defects generally manifest after the 20 (twenty) week mark.

Case: In Niketa Mehta V. Union Of India[6], the Bombay High Court refused to allow the abortion of a 24 (twenty four) week old fetus which had a congenital heart defect. The Supreme Court also upheld the decision of the Bombay High Court. The case led to a heated debate on the law prohibiting abortions after 20 (twenty) weeks and the grim realities of bringing up a child which would never be able to have a normal life. However, this case also prompted the government to take cognizance of the lacunas in the MTP Act and announce that it will be reconsidering the law on abortion.

Suggestions
Terminations of pregnancies after the stipulated 20 (twenty) week mark should not be banned. Cases in which an abortion is required after the 20 (twenty) week mark must be decided by a panel of doctors. Making of such medical decisions should be assigned to persons who are in the medical field and competent to make them, not lawmakers. A woman should not be forced to have a child she does not want.

The legislation needs to catch up with today's time. Unmarried women should also be allowed to terminate unwanted pregnancies so that women need no longer turn quacks and fake clinics in which unskilled and unlicensed medical practitioners.

Women are exposed to various dangers and exploitation when they turn to illegal means. Since doctors have the final authority to prescribe abortion pills, many doctors instead of giving the women prescriptions, provide such pills themselves and overcharge the pregnant woman, who in her desperate state has no option but to accept her circumstances. Awareness programmes have to be conducted to educate people about the law on abortion and about family planning and campaigns for safe and legal abortions must be carried out. This would help in removing the stigma attached to the topic of termination of pregnancies/ abortion.

The Union Health Ministry drafted the Medical Termination of Pregnancy (Amendment) Bill, 2014, which would permit abortions beyond the 20 (twenty) weeks mark. But this bill has yet to be promulgated. So while the bill is on hold, Supreme Court is the only hope for people who are affected by the staleness of the MTP Act. The 3 (three) judge Supreme Court Bench comprising of CJI Dipak Misra, A. M. Khanwilkar and D. Y. Chandrachud ruled that an adult woman has an unimpeachable right to give birth or terminate pregnancy.

The Supreme Court has also shown a favourable approach towards the amendment of the MTP Act and to make the law more meaningful by allowing women with fetuses having abnormalities or congenital disorders to abort even after 20 (twenty) weeks. The Court has generally allowed abortions after the 20 (twenty) week mark, keeping in mind the woman's health and future of the child. However, in a case where the woman wanted to terminate her pregnancy just because her child had down syndrome, the Court refused to grant permission, treating the fetus as a life.

Conclusion
India took a step in the right direction by introducing a law which allowed women to legally terminate pregnancies. However, the circumstances and time in which the law was enacted were very different from the scenario today. Technology has advanced and can now reasonably predict how the child's health would be while the baby is in the womb only. But, any abnormality in the fetus develops at a later stage in the pregnancy, and sometimes even after the 20 (twenty) week ceiling.

The current Act needs to be amended as soon as possible so as to accommodate the needs of the present. Delay in the amendment is forcing the women to go underground and seek help from quack doctors or unregistered medical practitioners, which puts their lives at risk.

Women need to be empowered in relation to their right to life, sex education, and importance of family planning. The woman's interest must be protected. Women should rely on the law in times of distress and not think of ways to evade it. Law should serve the needs of the people and not become a burden for them.

End-Notes:

1. Definition of abortion, Cambridge Advanced Learner's Dictionary & Thesaurus, Cambridge University Press
2. Medical Termination of Pregnancy Act, 1971
3. 2001 (4) MPHT 20 CG
4. 2000 CriLJ 671
5. CEHAT V. Union Of India; 2003 (10) SCALE 11, (2003) 8 SCC 412
6. SLP (C) 5334 of 2009