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The term “Abortion” means the termination of pregnancy of a woman, performed by specialized medical practitioners resulting in the death of the embryo or foetus. Abortion usually happens when the pregnancy poses a risk to the life of the mother or the foetus has any severe abnormalities which may pose a risk to both the mother and the newborn in the future.
- EXISTING ABORTION LAW IN INDIA
The Medical Termination of Pregnancy Act, 1971 is an abortion law for all the adults as well as minor females in our country. Earlier, punishments for miscarriage were mentioned in the Indian Penal Code, 1860 but there was no systemized way as to how and when can a woman go through abortion. Therefore, the Government had set up a Committee in 1964 to draft an abortion law in India which was accepted in by the Government in 1970 and thereby the law was passed by the Parliament known as Medical Termination of Pregnancy Act, 1971. The important provisions mentioned in the Bill are as follows:
- Conditions:
This Act lays down some of the circumstances by which women can have abortion:
- When a situation arises, which poses a serious physical or mental threat to the pregnant women.
- If the foetus has severe mental or physical abnormalities which would make him/her seriously handicapped after birth, thereby making his/her life very difficult to live in the world.
- When a married woman or her husband failed to use any contraceptives during sexual intercourse thereby making the women pregnant.
- When the pregnancy is caused by rape of the women.
Procedure for Abortion:
- The authority for abortion of women lies in only with a competent medical practitioner who is registered under the provisions mentioned in the Indian Medical Council Act, 1956. The medical practitioner should also be registered with State Medical Register and also have the requisite training as a gynecologist as per the rules mentioned in the Act.
- If the cause of pregnancy has been caused by any of the following above reasons and the time period of pregnancy has not exceeded 12 weeks, a solo medical practitioner, if satisfied, can terminate the pregnancy.
- However, if the period of pregnancy exceeds twelve weeks but does not exceed twenty weeks, the consent of two medical practitioners is required to terminate the pregnancy. To terminate the pregnancy of a minor, written consent of her guardian is needed, otherwise the termination would be cancelled.
- With the increasing health issues that people are suffering, specially in the 21st century, sometimes pregnancy itself act as an impediment for a healthy future of a mother or the child. Therefore, there may be no option but to terminate the pregnancy in order to protect a mother’s life from an ominous future. The Supreme Court, from time to time has upheld that termination of pregnancy can be performed beyond 20 weeks of pregnancy only if the doctors have exhausted all the other options and are fully convinced to go ahead with the termination. Some of the case laws have been provided:
- In Tapasya Umesh Pisal v Union of India,[1] it was held that termination of pregnancy of 24 weeks for saving life of a women is permissible.
- In A. v Union of India,[2] it was observed that since the continuation of foetus of 25/26 weeks posed grave danger to mother’s life and foetus suffering from incurable medical conditions making it impossible for the foetus to live in an the outside world. The court upheld the medical termination of the pregnancy.
- In Mamta Verma v Union of India,[3] petitioner was in her 25th week of pregnancy and it was discovered that her foetus was diagnosed with a defect that cannot be treated and may pose a big risk to both mother and the child. Medical Board having affirmed the same, termination of pregnancy was permitted and was allowed by Hon’ble Court.
- Place of Abortion: According to this Act, the termination of pregnancy is allowed only in a hospital which is established or maintained by the Government or a place for the time being approved by a District Committee with Chief Medical Officer or District Health Officer as the Chairperson of the said Committee.
- Exceptions: If the termination of pregnancy by a person who is not a registered medical practitioner shall be imprisoned for a term which shall not be less than two years but may also extend to seven years. If the termination of pregnancy is in a place other than the place mentioned above shall be liable for an imprisonment which may extend to two years but may also extend to seven years. However, if the registered medical practitioner is of the opinion, formed in good faith, that the termination of pregnancy is immediately necessary to save the life of the pregnant women, then the conditions for procedure and place for abortion may not apply and the termination of pregnancy shall be deemed valid. Some reasonable exceptions are as follows:
- Good Faith: – Good faith is defined by Section 52 of the Indian Penal Code which says that nothing is said to be done or believed in good faith which is done or believed without due care and attention. In State of Orissa v Ram Bahadur Thapa,[4] it was observed that Good Faith requires due care and caution, but there can be no general standard of care and attention applicable to all persons and under all circumstances. The standard of care and caution must be judged according to the capacity and intelligence of the person whose conduct is in question.
- Absence of Personal Malice: – Absence of Personal Malice may be a relevant fact in dealing with the plea of good faith but its significance or importance cannot be exaggerated. Even in the absence of personal malice it will have to be shown that the act was done with due care and attention.[5]
- Due Care and attention: – Due care and attention implies a genuine effort to reach the truth and not the ready acceptance on ill natured belief. The question of good faith is a question of fact and must be gathered from the surrounding circumstances. Mere actual belief without any reasonable grounds for believing is not synonymous with good faith; but good faith does not require logical infallibity but due care and caution.[6]
- Reasonable Grounds: – It is not necessary for the surgeon to hold off the operation if he has reasonable grounds to believe that the pregnancy is posing a danger to the mother every minute.[7]
- Consent obtained in good faith: – A patient who puts himself under the treatment of a medical practitioner qualified or otherwise gives an implied consent to suffer the harm and to take the risk. But in Juggankhan Jamshan Khan v State,[8] if the medical practitioner is not qualified enough to perform an operation, the consent is not a consent obtained in good faith.
- Termination of pregnancy after 20 weeks: – Termination of pregnancy after 20 weeks to save life of pregnant women is permissible when there is grave danger to physical and mental health of pregnant women.[9]
- CAN A MENTALLY ILL PERSON GIVER HER CONSENT FOR ABORTION?
- Lunatic: – Though the Indian Lunacy Act, 1912 defines “lunatic” as an idiot or a person of unsound mind, the said words have not been defined. Both these words indicate an abnormal state of mind as distinguished from weakness of mind or senility following old age. A man of weak mental strength cannot be called an idiot but only those who suffer from a mental disorder or derangement of the mind.[10] No person can have direct experience of the mind of another and the proper test of insanity conduct. A person might conceivably have all kinds of delusions, but if his conduct remains normal there would be no justification for holding him to be lunatic.[11]
- Unsoundness of Mind: – “Unsoundness of mind” implies some unusual feature of the mind as has tended to make it different from the normal and has in effect impaired the man’s capacity to look after his affairs in a manner in which another person without such mental irregularity would be able to do in the matter of his own. The idea suggests some derangement of the mind and it is not to be confused with or taken as analogous to a mere mental weakness or lack of intelligence.[12]
- Mentally ill and Mentally Retarded: – Persons in condition of “mental retardation” should ordinarily be treated differently form “mentally ill” persons. Condition of mental retardation or developmental delay can be gauged on basis of parameters such as intelligent quotient and mental age which mostly relate to academic abilities.[13]
- THE NEED FOR AMENDMENTS IN THE ABORTION LAW
The right of a women to have a reproductive choice is an insegregable part of her personal liberty, as envisaged under Article 21 of the Constitution.[14] Even after 49 years since the Medical Termination of Pregnancy Act 1971 was passed, abortion is still viewed as a taboo in our country. Due to lack of awareness in remote places of the country, women tend to carry the foetus with them due to societal pressure and ultimately become a parent even when they weren’t ready in the first place. This abortion law fails to recognize all those pregnancies which have exceeded 20 weeks and does not make any provisions for these categories of pregnant women. The law also fails to recognize all those women who are not married but still become pregnant due to their failure to use any contraceptive method or device while having sexual intercourse with their partner. There was an Amendment made to his Act in 2002 which made some minor changes in relation to the place of abortion and introducing different penalties and punishments for the non-compliance of the Act but still failed to give the imperative and the requisite rights for different categories of pregnant women.
Also read: COVID-19 IMPACT ON EDUCATION SYSTEM
- MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) BILL, 2020
The Medical Termination of Pregnancy (Amendment) Bill, 2020 was introduced in the parliament by the Ministry of Health and Family Welfare on March 2, 2020. The aim of this bill is to liberalize the existing abortion law i.e., Medical Termination of Pregnancy Act, 1971 for the women by increasing the maximum limit for termination of pregnancy from 20 weeks to 24 weeks and also making certain provisions for terminating those pregnancies whose time limit has exceeded 24 weeks. The highlights of the newly proposed bill are as follows: –
- Procedure for Abortion: A major change introduced in this Bill is that if the cause of the pregnancy has been in accordance with the conditions mentioned above and the time period of pregnancy has not exceeded twenty weeks a solo medical practitioner, after being satisfied, can terminate the pregnancy. If the time period of the pregnancy exceeds twenty weeks, but does not exceed twenty-four weeks, the consent of two medical practitioners is required to terminate the pregnancy. For the termination of pregnancy for the period exceeding twenty-four weeks, all State and Union Territory Governments would form a Medical Board which would decide whether the pregnancy should be terminated after 24 weeks due to foetal abnormalities or not. Each board will have a Gynecologist, Pediatrician, a Radiologist or a Sonologist and a member notified by their respective State Government or Union Territory.
- Eligibility: Earlier the Medical Termination of Pregnancy Act 1971 provided abortion services to only married women if she or her husband has failed to use any contraceptive method or device. The Medical Termination of Pregnancy (Amendment) Bill, 2020 has made sure to include all those women as well who aren’t married and want to terminate their services if she or her partner fails to use any contraceptive method or device.
- Privacy: Another major change in this Bill is that the registered medical practitioner shall reveal the name of the women whose pregnancy has been terminated to a person authorized by the law. If such provision is violated by the medical practitioner or any other person, he/she would be imprisoned for a period which may extend to one year or with a fine or both.
- DRAWBACKS OF MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) BILL, 2020
Even though the newly introduced bill is the right direction in this progressive world, the Bill still lacks the vision to view abortion as the basic right of any women. Some of the drawbacks are as follows:
- Time Frame of Medical Board: It seems pedantic that the procedure for abortion for all those women, who have exceeded 24 weeks of their pregnancy, would be efficient and transparent. But the bill fails to recognize the difficulty of a woman from a remote area where there is no access to even basic healthcare and it is expected from the women to travel miles to find a hospital and go through the tedious, delaying and red tapism process to get permission from the Medical Board. This whole procedure may delay the process of abortion and pose a greater threat to the pregnant women’s physical and mental health.
- Categories of Gender: The Bill recognizes only “pregnant women” who can avail the services of abortion. However, the Transgender Persons (Protection and Rights) Act, 2019 recognize transgender as an additional gender other than male and female and based on many medical studies, there is a scientific proof that transgenders can get pregnant even after receiving hormonal therapy. But there are no provisions mentioned in the Act nor in the newly introduced Bill for the transgenders to avail the services for abortion.
- Lack of Qualified Medical Practitioners: One of the most serious issues in the medicine industry is the lack of requisite doctors to treat 1.3 billion souls in this country and all those medical practitioners who are qualified for terminating pregnancies are no exception. According to All-India Rural Health Statistics, there is a shortage of 75% qualified gynecologists in the rural areas of our country making this Bill very ineffective at large for the people living in remote areas which encourages them to use unsafe and illegal modes of abortion thereby posing a greater threat to the life of the pregnant women.
- CONCLUSION
Even though the newly proposed Bill acknowledges various problems and tries to amend such provisions accordingly, we are still far from reaching to a point where safe abortion is accessible by every woman in our country. According to a 2016 study published in The Lancet by the Guttmacher Institute and the World Health Organization, an estimated 56 million abortions took place globally each year between 2010 and 2014. The most recent and most commonly cited national estimates of abortion in India placed incidence at 6.4 million abortions in 2002, corresponding to a rate of 26 abortions per 1,000 women of reproductive age.[15] Making people aware about the legality of termination of pregnancy is the basic and the most requisite thing that needs to focused first to remove the dilemma of abortion as a taboo in our country. It is also important that more medical clinics with registered medical practitioners should be set up in remote areas of the country for making the services of abortion accessible to any pregnant women. Together as a community we need to change the perspective of abortion in the minds of every individual by uplifting the right of a woman to have an abortion.
[1] Tapasya Umesh Pisal v Union of India, (2018) 12 SCC 57
[2] A. v Union of India, (2018) 14 SCC 75
[3] Mamta Verma v Union of India, (2018) 14 SCC 289
[4] State of Orissa v Ram Bahadur Thapa, AIR 1960 Ori 161
[5] Harbhajan Singh v State of Punjab, AIR 1966 SC 97
[6] In re Ganapathia Pillai, AIR 1953 Mad 936
[7] Rex v Bourne, (1938) 3 All ER 615
[8] Juggankhan Jamshan Khan v State, AIR 1963 MP 102
[9] Meera Santosh Pal v Union of India, (2017) 3 SCC 462
[10] Ganga Bhavanamma v Somaraju, AIR 1957 AP 938
[11] Abdul Razak v Commissioner of Income Tax, AIR 1935 Pat 425
[12] Sarjug Singh v Gulabo Kuer, AIR 1969 Pat 33
[13] Eera v State (NCT of Delhi), (2017) 15 SCC 133
[14] Suchita Srivastava v State (UT of Chandigarh), (2009) 9 SCC 1
[15] Chhabra R and Nuna S, “Abortion in India: An Overview”, New Delhi: Veerenda Printers, 1994
Author: RITIK DHANKHAR
Editor: Kanishka Vaish, Senior Editor, LexLife India.
Lexlife India 