Wisdom Crux

Medical Termination of Pregnancy

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[Volume 2, Issue 4] – April, 2017

Author – Shivangi Bajpai, B.A.LL.B, Amity Law School, Amity University Noida

ABSTRACT

India is considered to be a country globally where girl child is considered as a liability for many parents. No it’s not only in rural India. If we consider facts and figures, most of abortion cases come from urban India where even the literate parents [Engineers and Doctors] prefer to abort a girl child. On one hand where girl child is considered as a liability, there also exist parents who treat their daughters equal or I would say better than their sons.

In India, girls are considered as Lakshmi [Goddess of wealth]. But the irony is everyone wants Lakshmi in their houses but don’t want girl child to take birth in their family. There is a famous saying by Guru Nanak Dev Ji ‘Why disrespect a woman who gives birth to Kings’. Everyone wants pretty educated daughter in law for their sons but no one wants to give birth to someone else’s daughter in law. Girls are considered as a birth giving machine in most of the parts and dominated by their parents before marriage and then by their in laws after marriage.

As per the medical termination of pregnancy act,1971 ; abortion is legal only upto 12 weeks and in extreme cases 20 weeks considering the health of women or some serious health or mental disorders in the baby.  Medical Termination is not restricted to aborting a girl child, it also includes the abortion of a male embryo though it is very rare in India.

Technology has progressed to make this world a better place but the greed of a human has started to misuse this technology and has made it a selfish world to live in where everyone wants everything their way. This world has become the place where people are going against the human nature. This needs to be stopped to undo the damage caused and making this world a better place to live for all the beings on this earth.

Keywords: Pregnancy, Medical, Risk

INTRODUCTION

Medical termination of pregnancy in common dialect refers to induced expulsion of human fetus from the body of pregnant woman during the stage of gestation. The Article 6(1) of the International Covenant on Civil and Political Rights prohibit the arbitrary deprivation of life. But there are some controversial issues related to this supreme right, like the question of Right to abortion. Among other rights of women, it is believed that every mother has a right to abortion, it is a universal right. But the rights of the mother are to be balanced with the rights of the unborn.

Indian law permits abortion, if the continuance of pregnancy would result to a risk to the life of the pregnant woman or serious injury to her mental or physical health. Abortion has been legal in India since 1971, when the Medical Termination of Pregnancy Act was passed. The law aims to reduce illegal abortion and maternal mortality

In India termination of pregnancy is legal only upto twenty weeks of pregnancy under specific conditions and situations which are as follows:

  • The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury of physical or mental health.
  • There is a substantial risk that if the child were born,it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Any woman above the age of 18, requires no other person’s consent except her own.

HISTORY

Before#1971

Section 312 of the Indian Penal Code, throws light on  the offence of ‘causing miscarriage’ as follows “whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to 3 years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.

If the death of the woman is caused by an act done with intent to cause miscarriage with her consent punishment may extend to 10 years of imprisonment and fine, and if it is done without her consent, imprisonment for life or ten years and fine. An act done with the intent to prevent a child from being born alive or to cause it to die after death is punishable upto 10 years of imprisonment or fine or both. And the causing of death of a quick unborn child by an act amounting to culpable homicide is punishable upto 10 years of imprisonment and fine.

The only exception was when termination of pregnancy was induced in order to save the life of women.

In 1964, the Central Family Planning Board of the Government of India met and formed a committee designed to examine the subject of abortion from medical, legal, social, and moral standpoints. The Abortion Study Committee, led by the then Health Minister of the state of Maharashtra Mr. Shantilal Shah, spent the next two years studying the issue, and submitted a report with its suggestions in December 1966. This report considered the penal code to be too restrictive and recommended that the law’s qualifications should be relaxed; many of these suggestions were included in the subsequent Medical Termination of Pregnancy (MTP) Act.

1971#and#beyond

The Indian abortion laws fall sunder the Medical Termination of Pregnancy (MTP) Act, which was enacted by the Indian Parliament in the year 1971 with the intention of reducing the incidence of illegal abortion and consequent maternal mortality and morbidity. The MTP Act came into effect from 1 April 1972 and was amended in the years 1975 and 2002.

The MTP Act, 1971 preamble states” an Act to provide for the termination of few pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto”. The preamble is very clear in stating that termination of pregnancy would be permitted in certain cases. The cases in which the termination is permitted are elaborated in the Act itself. Moreover, only a registered medical practitioner who is defined in Sec.2(d) of the Act as “a medical practitioner who possess any recognize medical qualification as defined in Cl.(h) of sec.2 of the Indian Medical Register and who has such experience or training in gynecology and Obstetrics as may be prescribed by rules made under this Act” is permitted to conduct the termination of pregnancy. Also other matters connected there with the incidental thereto are incorporated, for example, the question of consent of termination of pregnancy, the place where the pregnancy could be terminated, the power to make rules and regulations in this behalf.((The medical termination of pregnancy act,1947))

PREGNANCY CAN BE TERMINATED UNDER THE FOLLOWING CONDITIONS:

  • THERAPEUTIC – when the continuance of the pregnancy endangers the life of women or may cause serious injury to the physical or mental health.
  • EUGENIC – when there is risk of the child being born with serious physical or mental abnormalities.
  • HUMANITARIAN- when pregnancy has been caused by rape.
  • FAILURE OF CONTRACEPTION – when pregnancy has resulted from the failure of contraceptive methods in case of a married woman, which is likely to cause serious injury to her mental health.
  • SOCIO- ECONOMIC – when social or economic environment , actual or reasonabaly expected can injure the mother’s health.

Grounds for termination of pregnancy:

  • 3: When pregnancies may be terminated by registered medical practitioner.
  • (i) Notwithstanding anything contained in the Indian Penal Code (45 of 1860) a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act”
  • This makes it clear that the provisions of the MTP Act, so far as abortion is concerned suppresses the provisions of the Indian Penal Code. Sub-sec. (2) of Sec.3: “Subject to the provisions of sub-sec (4), a pregnancy, may be terminated by a registered medical practitioner.

 

Consent for Abortion:

Section 3(4) of MTPA clarifies as to whose consent would be necessary for termination of pregnancy.

(a) No pregnancy of a woman, who has not attained the age of 18 years, or who having attained the age of 18 years, is a lunatic, shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

It is important to note, in this section, that the consent of the woman is the essential factor for termination of her pregnancy. The husband’s consent is irrelevant. Therefore, if the woman wants an abortion but her husband’s objects to it, the abortion can still be done. However, if the woman does not wants an abortion but her husband wants, it cannot be done. However, the consent of the guardians is needed in the case of minors or lunatics.

Section 4 specifies the place where, under MTP, a pregnancy can be terminated. It stipulates that an operation must take place in either “a hospital established or maintained by the government” or in “a place which has been approved for the purpose of this Act by the government.” However exceptions are made for emergencies. Under section 5(1), a doctor may terminate a pregnancy if it is “immediately necessary to save the life of the pregnant woman”. In such situations, the requisites relating to the length of pregnancy, the need for two medical opinions and the venue for operation do not apply. However, it needs to be pointed out that one aspect of this emergency clause tends to restricts rather than liberalize the old law. Section 312 of the IPC permitted abortions by anyone with the object of saving the life of the mother, but under MTPA only a doctor can terminate the pregnancy.

Court’s Views

The MTP Act does not bestow or recognize any right on any person to carry out an abortion or termination of pregnancy. Even the pregnant woman cannot terminate the pregnancy except under the circumstances mentioned in the Act. Even all through the ‘first trimester’, the woman cannot abort at her will and pleasure, There is no query of “abortion on demand”. Sec.3((The Medical Termination of Pregnancy Act, 1971)) is only an enabling provision to save the RMP from the purview of the IPC. Court further added that “termination of pregnancy under the provision of the Act, is not the rule and it is only an exception”((V. Krishnan, Vs. G. Rajanalia Madipu Rajan (1994-1) 113 Mad.L.W.89 [D.B.])). A two Judge Bench of the Madras High Court, in its landmark judgment held that “a minor girl has the right to bear a child”. No doubt the court is bound to presume, as the expression used is “shall be presumed”. But such presumption can be rebutted on the facts. Even if it is presumed that the pregnancy is caused by rape, there is no question of anguish caused by such pregnancy in the pregnant woman particularly when the girl was very keen to continue the pregnancy and bearing the child. Hence, the continuance of the pregnancy will not cause any injury to her mental health.((Ibid))

In Harish and Nikita Mehta’s Case, the Bombay High Court held that no categorical opinion of experts had emerged to state that the child would be born with serious handicaps. The court thus denied recourse to medical termination of the pregnancy after 20 weeks and an opinion emerged that terminating the life of a viable unborn on grounds of possible handicap is akin to mercy killing.

Rajeswari vs State Of Tamil Nadu And Others 24th may 1996:

The case, is of an unmarried girl of 18 years who is praying for issue of a direction to terminate the pregnancy of the child in her womb, on the ground that bearing the unwanted pregnancy of the child of three months made her to become mentally ill and the continuance of pregnancy has caused great anguish in her mind, which would result in a grave injury to her mental health, since the pregnancy was caused by rape. The Court granted the permission to terminate the pregnancy.

Dr. Nisha Malviya and Anr. Vs. State of M.P on 5th august 1999:

The accused had committed rape on minor girl aged about 12 years and made her pregnant. The allegations are that two other co-accused took this girl, and they terminated her pregnancy. So the charge on them is firstly causing miscarriage without consent of girl. The Court held all the three accused guilty of termination of pregnancy which was not consented by the mother or the girl.

Murari Mohan Koley vs The State 2003

In this case, a woman wanted to have abortion on the ground that she has a 6 months old daughter. She approached the petitioner for an abortion. And the petitioner agreed to it for a consideration. But somehow the condition of the woman worsened in the hospital and she was shifted to another hospital. But it resulted in her death. The abortion was not done.

The petitioner who was a registered medical practitioner had to establish that his action was done in good faith (includes omission as well) so that he can get exemption from any criminal liability under section 3 of the MTP Act, 1971.

Shri Bhagwan Katariya And Others vs State of M.P: Abortion without mothers consent 2000.

The woman was married to Navneet. Applicants are younger brothers of said Navneet while Bhagwan Katariya was the father of said Navneet. After the complainant conceived pregnancy, the husband and the other family members took an exception to it, took her for abortion and without her consent got the abortion done.

The Court opined that if we refer Section 3 of the Medical Termination of Pregnancy Act, 1971, a doctor is entitled to terminate the pregnancy under particular circumstances and if the pregnancy was terminated in accordance with the provisions of law, it must be presumed that without the consent of((Shri bhagwan kataria and other vs state of mp)) the woman it could not be done. Present is a case where a permanent scar has been carved on the heart and soul of the woman by depriving her of her child. And the Doctor will be liable.

Thus, the case laws show that a woman has an absolute right to abortion and no one can take away this right from her. The Judiciary has been playing a vital role in securing these rights to women. Right to abortion is a fundamental right of privacy.

APPROVAL PROCESS

  • Application in form A to be addressed to CMHO by place seeking approval
  • Verification by CMHO
  • CMHO recommends approval to the committee
  • Committee considers application and recommendation and approve and issue certificate of approval in FORM B
  • Place to be inspected within 2 months of receiving application
  • If deficiency found within 2 months of deficiency having been rectified

INSPECTON

  • CMHO to inspect to insure safe and hygienic conditions of MTPs
  • Call for information and seize in case found otherwise

CANCELLATION

  • CMHO can report for unsafe and unhygienic conditions
  • Committee can suspend or cancel approval after giving the owner an opportunity for representation
  • Owner can reapply to the committee after making additions and improvements
  • During suspension the place be deemed as non-approved

CONCLUSION

Effective implementation of changed laws in letter and sprit, both by law enforcing agencies and medical fraternity. Surprise visits by District Committee members to ensure effective implementation of these laws. Authors and editors of books covering topics on ‘abortion’, especially of Forensic Medicine, Community Medicine and Obstetrics & Gynaecology should include recent changes in these laws. Examiners in these subjects should ask questions in theory and viva-voce examinations in their respective subjects on new provisions of ‘abortion laws’. Ensuring full confidentiality to patients so that they can come to approved places instead of going to ‘quacks’ in the ‘unsafe’ and ‘unhygienic’ places in the fear of social stigma attached to abortions. Creating awareness about new laws among medical fraternity, law enforcing agencies and public about benefits of these laws by organizing symposium, seminar, workshop, etc. NGOs and mass media should play their much-needed role in both creating awareness and exposing conducts of ‘quacks’. The ultimate aims of these amendments (2002) are: To eliminate the incidence and prevalence of abortions by: Untrained persons (quakes); and in Unsafe & unhygienic conditions, so that reduction in the ‘maternal mortality & morbidity’ could be achieved and crime of ‘female foeticide’ dealt effectively. Thus, by following these suggestions we all can contribute our role towards society in reducing ‘maternal mortality’ and ‘morbidity’ and can prevent wastage of pregnant women’s strength, health and above all life. Effective implementation of these laws can also contribute in preventing most heinous crime against humanity i.e. ‘female-foeticide’.

Editor – Mrs. Honey Dhawan – B.COM, LL.B, LL.M (Gold Medalist – RGNLU), CWA