Women and the Law: An Analysis on the medical termination of pregnancy law in India vis-à-vis the Medical Termination of Pregnancy Act, 1971 and the Medical Termination of Pregnancy (Amendment) Bill, 2020

Introduction

The Medical Termination of Pregnancy (Amendment) Bill, 2020[1] (“the Bill”) was passed by the Lok Sabha on 02.03.2020. It was thereafter introduced in the Rajya Sabha on 18.03.2020 and is yet to be passed by the Upper House. The Bill attempts to bring about certain changes in the present law relating to medical termination of pregnancy. Presently, the Medical Termination of Pregnancy Act, 1971[2] (“the MTP Act”) lays down the law and procedure with respect to medical termination of pregnancy and the Medical Termination of Pregnancy Rules, 2003[3] (“the Rules, 2003”) sets forth certain rules that must be adhered to by medical professionals and institutions that carry out medical termination of pregnancy. It is important to note that the term “abortion” has not been used in the MTP Act, the Bill or in the Rules, 2003; but is rather a term that is colloquially used.

Further, it is pertinent to note that the MTP Act acts as an exception to Section 312 of the  Penal Code, 1860[4] (“IPC”), which criminalises the act of “voluntarily causing a woman with child to miscarry” save for the purpose of it being carried out in good faith to save the life of the woman”. Therefore, while Section 312 IPC still remains in force, neither the MPT Act nor the Bill decriminalises medical termination of pregnancy but states certain permissible grounds under which a woman can undergo a medical termination and only under these specified and permissible categories/conditions can a woman undergo a termination, save by an order from the Court concerned.

Brief History of the MTP Act

The MTP Act was introduced in Parliament in 1970, was eventually passed in August 1971 and came into operation on 01.04.1972, after the Government framed rules for its implementation.  Since then, the Act has been amended once in 2002 and the new rules were framed in 2003. The Bill attempts to bring about a third amendment to the MTP Act.

Before the enactment of the MTP Act, about 5 million terminations were carried out per year in India out of which 3 million were illegal[5]. It is said that approximately one seventh of women who become pregnant in India every year resort to unsafe termination methods at the hands of inexperienced persons and “quacks” and/or paramedical personnel, like nurses, midwives who lacked the necessary experience and this resulted in risks of high morbidity and mortality amongst pregnant women and their children[6]. Further, during the period of 1960s, several countries started to enact laws to legalise medical termination of pregnancy. The MTP Act was largely modelled on the Abortion Act of 1967 which had been passed in the United Kingdom and the legislative intent, as opined by the  Supreme Court of India (“the Supreme Court”), was to provide a qualified “right to abortion” and the termination of pregnancy which has never been recognised as a normal recourse for expecting mothers.[7]

In order to lay down the law regarding medical termination of pregnancy, the Government of India set up the Shah Committee under Mr. Shantilal Shah to propose certain draft laws. This was also done at a time when countries across the world were attempting to liberalise termination laws and about 15 counties had already legalised medical termination of pregnancy. The Shah Committee in its report observed that “whatever may be the moral and ethical feelings that are proposed by society as a whole on the question of induced abortion, it is afact that a number of mothers are prepared to risk their lives by undergoing an illegal abortion rather than carrying that particular child to term”. The committee submitted a comprehensive report suggesting various situations justifying legal termination of pregnancy. It was of the view that this should be allowed not only for saving the life of the pregnant woman, but also to avoid grave injury to her physical or mental health. There was some debate surrounding the main prerogative of passing this legislation, as to whether it was enacted to combat the rising population growth or to ensure women have access to safe methods of termination, and giving them enhanced reproductive rights. Certain factions viewed the legislation, upon its enactment, as being a strategy for reducing population growth but the Shah Committee, specifically denied that this was its purpose[8].

A woman’s right to make reproductive choices is also a dimension of personal liberty as under Article 21 of the Constitution[9], as held by the Supreme Court in Suchita Srivastava v. Chandigarh Administration[10]. Herein, the Supreme Court held that it is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating and the crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected, which means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.

In the aforementioned case, the Supreme Court also laid down the “best interests test” and “substituted judgment test” wherein the “best interests test” requires the Court to ascertain the course of action which would serve the best interests of the person in question and this decision should be guided by the interests of the victim alone and not those of the guardians or of society in general. The application of the “substituted judgment” test requires the Court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so. Further, the Court made a distinction between those who are “mentally ill” or those who suffer from “mild mental retardation”. The MTP Act, as amended in 2002 substituted the word “lunatic” in Section 3(4)(a) which that of the expression “mentally ill person” and persons who are in a condition of “mental retardation” should ordinarily be treated differently from those who are found to be “mentally ill”. Therefore, while a guardian can make decisions on behalf of a “mentally ill person” as per Section 3(4)(a) of the MTP Act, the same cannot be done on behalf of a person who is in a condition of “mental retardation” and those who suffer from “mental retardation” are capable of making their own choices with respect to termination of  pregnancy.

Salient Features of the MTP Act

The MTP Act recognises the rights of the woman who wishes to undergo the termination and is surrounded and premised her consent, well-being and health. Therefore, the permissible grounds of medical termination depend upon the mental and physical health of the woman. This stance is different from that taken by certain countries such as United States of America, wherein certain States have premised their laws on the basis of the foetus, by recognising the rights and well-being of the foetus.

According to Section 3 of the MTP Act[11], if the duration of the pregnancy is of 12 weeks, it may be terminated on the basis of the opinion of one “registered medical practitioner” if continuance of the pregnancy would involve a risk to the life of the pregnant woman or would cause grave injury to her “physical or mental health” or if 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. If the length of the pregnancy is between 12 weeks -20 weeks, then the opinion of two registered medical practitioners is required in order to terminate the pregnancy. The basis of the opinion is the same as mentioned hereinabove.

The two Explanations to this section create as presumption that if the pregnancy is caused by rape or that the pregnancy was due to failure of any device or method used by “any married woman” or “her husband” for the purpose of limiting the number of children, then the “anguish” caused by such a pregnancy would be presumed to cause injury to the mental health of the woman. It is important to note that the grounds for termination, as enumerated in Section 3 of the MTP Act, barring Explanation II, is applicable to all women, regardless of their marital status and therefore the term “pregnant woman” or “pregnancy” is used, which does not indicate the marital status of the pregnant woman. In the event, that the termination is absolutely crucial to save the woman’s life, then the opinion of only one registered medical practitioner will suffice, regardless of the length of the pregnancy[12]. A registered medical practitioner is a doctor who specialises in the field of gynaecology and obstetrics.[13] Any other doctor does not come under the purview of a registered medical practitioner under the MTP Act.

In the event, that the pregnancy exceeds 20 weeks, then the woman has to approach the High Court concerned  or the Supreme Court by filing a writ petition under Article 226 or Article 32 of the Constitution of India respectively. Thereafter, the Court concerned directs that a medical board be set up, which is to prepare a report and submit it before the Court. Based on this report, the Court either allows or disallows the woman to undergo a medical termination.

In Meera Santosh Pal v. Union of India[14], woman who was in the 24th week of her pregnancy filed a petition before the Supreme Court with the plea to undergo a medical termination of pregnancy. The Supreme Court directed a medical board to be set up and the board was of the opinion that continuation of the pregnancy would not only result in grave injury to the physical and mental health of the woman but the foetus  would not be able to survive “extra-uterine life” due to abnormalities and therefore the Supreme Court directed that the woman can undergo a medical termination of pregnancy as per the provisions of the MTP Act.

Similarly, in  Sarmishtha Chakrabortty v. Union of India[15], a woman approached the Supreme Court to seek permission to undergo a medical termination. The Supreme Court directed that a medical board be set up and the medical board was of the opinion that it was a case for termination of pregnancy as the women was at the threat of severe mental injury if the pregnancy is continued and if the child were born alive, would need complex cardiac corrective surgery stage by stage after birth and there is high mortality and morbidity at every step of this staged surgeries. Therefore, the Supreme Court granted the prayers sought for in the petition and permitted the woman to undergo a medical termination of pregnancy.

Further, in  X v. Union of India[16], the Supreme Court held, on the basis of a report submitted by the medical board directed to be constituted, that though the current pregnancy of the petitioner was about 24 weeks but the life of the foetus outside the womb was endangered and therefore the Supreme Court permitted the woman to undergo a medical termination of pregnancy as per the provisions of the MTP Act.

However, in certain cases, the Supreme Court has rejected a woman’s plea to undergo medical termination. In Savita Sachin Patil v. Union of India[17], a woman in her 26th week of pregnancy approached the Supreme Court in order to seek permission to undergo a medical termination. The Supreme Court directed that a medical board be set up and the medical board submitted a report which opined that there is no physical risk to the mother of continuation or termination of pregnancy and if the baby is born with “Trisomy 21”, it is “likely” to have mental and physical challenges. The Supreme Court held that since the medical report clearly does not observe that this particular foetus will have severe mental and physical challenges and simply states that it is “likely” to have these challenges and also since there is no danger to the life of the woman, the prayer to undergo medical termination was declined by the Supreme Court.

Similarly, in  Sheetal Shankar Salvi v. Union of India[18], the Supreme Court, on the basis of the report of the medical board, declined to grant permission to a woman to undergo medical termination on the grounds that since it has not been possible for the  Medical Board to determine the period of time for which the baby is likely to survive and since there is no danger to the mother’s life and that there was the likelihood that “the baby may be born alive and may survive for variable period of time”.

The consent of the woman is of paramount importance and no termination can take place without the consent of the woman[19]. However, in the event that a minor woman i.e. who is under the age of 18 years old or one who may be a major i.e. 18 years old or above but suffers from mental illness is pregnant and wishes to undergo a medical termination, the termination shall take place only upon the consent given by her guardian in the form of writing[20].

Further, women who undergo a medical termination of pregnancy are entitled to maternity benefits and maternity leave for a period of 6 weeks following the date of the termination under the Maternity Benefit Act, 1961[21].

Proposed Amendments by the Bill

The Bill seeks to carry out certain amendments to the MTP Act, some of which are welcome changes. One of the key amendment features is increasing the permissible upper limit of undergoing a termination, without an order from the court concerned, from 20 weeks to 24 weeks of the length of the pregnancy. In the MTP Act, 20 weeks is the upper limit to undergo a termination by seeking the opinion from two registered medical practitioners. As stated above, presently, if the length of the pregnancy is over 20 weeks and a woman wishes to undergo a termination, she will have to file a writ petition before the High Court concerned or the Supreme Court.

Further, the Bill proposes that, if a woman who is pregnant for a period of 20 weeks, wishes to undergo a termination, she will need to seek an opinion from one registered medical practitioner and such a proposed amendment is a welcome change as it reduced the mental, physical and financial burden on women. Further, the Bill proposes that if the length of the pregnancy is between 20 weeks to 24 weeks, then she will need an opinion from two registered medical practitioners before undergoing a termination. However, the Bill uses the term “in case of such category of woman as may be prescribed by rules made under this Act,” and therefore, only women who fall into the category as prescribed by the rules can avail this option. However, termination in this case is also permissible for “such category of woman as may be prescribed by rules made under this Act”. The Bill does not state any such category and this ambiguity/caveat can be problematic as the Rules and not the Act will determine the category of women who can undergo a termination in such an instance. In order to save the life of a woman, only the opinion of one registered medical practitioner is necessary, regardless of the length of the pregnancy. This provision exists presently in the MTP Act as well.

The Bill proposes to set up a “medical board” within the scope of the Act itself. The Bill proposes that if the length of the pregnancy is 24 weeks or more, then a medical termination is permissible only if the medical board has diagnosed that a case of “substantial foetal abnormality exists” and medical termination is necessary. It is pertinent to note that in such an instance, a medical termination will not be permissible on any other grounds but solely on the ground that the fetus has certain abnormalities. Therefore, a woman does not need to approach the Supreme Court or High Court to seek permission for a termination of pregnancy that exceeds 24 weeks in the event that there exists foetal abnormality. However, a woman, would still need to file a writ petition before the  Court concerned if the length of the pregnancy exceeds 24 weeks and she wishes to undergo a termination for a reason other than the existence of foetal abnormality. Presently, medical boards are not statutory creations but are created by various Courts which entertain writ petitions filed by women seeking permission to undergo a termination and on the basis of the report of the medical board, amongst other factors, the Court allows or disallows a medical termination.

Further, the Bill proposes to amend the Explanation to Section 3 (2) by amending the term “married woman” to replace it with “any woman” and by amending the term “husband” to replace it with the term “partner”. This proposed amendment can be regarded as being progressive and liberal as it ends the statutory discrimination against unmarried women and includes all women and their partners, notwithstanding the marital status between them, to fall under the presumptive exception created by the section. Further, this proposed amendment also recognises the changes in society and does not restrict relationships solely to marital ones.

Conclusion

The MTP Act is a progressive legislation, which has given women in India a semblance of reproductive rights and autonomy and this sentiment has been echoed by the Supreme Court through various judgments. At a time when certain countries are attempting to repeal medical termination of pregnancy laws, India has managed to retain and constantly develop the law surrounding medical termination of pregnancy. The Bill attempts to amend and introduce certain provisions which can be beneficial. Despite certain limitations and lacunae, wherein it is hoped that these lacunae are rectified by judicial pronouncements, the Bill can be viewed as an attempt to liberalise and expand the existing medical termination of pregnancy laws.


*The author is an Advocate who practices in New Delhi. She thanks Ms. Nandita Rao for providing some valuable inputs.

[1] Medical Termination of Pregnancy (Amendment) Bill, 2020 

[2] Medical Termination of Pregnancy Act, 1971

[3] Medical Termination of Pregnancy Rules, 2003

[4]Section 312: Causing miscarriage.—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 three 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 seven years, and shall also be liable to fine.

Explanation.—A woman who causes herself to miscarry, is within the meaning of this section.

[5] N. R. Madhava Menon, “Population Policy, Law Enforcement and the Liberalisation of Abortion : A Socio Legal Inquiry into the Implementation of the Abortion Law in India”, 16 JILI 626 at 632- 33 (1974).

[6]Asit K. Bose, “Abortion in India : A Legal Study”, 16 JIL1 535 (1974).

[7]Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1

[8]Siddhivinayak S. Hirve, “Abortion Law, Policy and Services in India: A Critical Review”, Abortion Law, Policy and Practice in Transition, Vol. 12 Issue Sup 24 (2004).

[9]Article 21: Protection of life and personal liberty– No person shall be deprived of his life or personal liberty except according to procedure established by law.

[10] (2009) 9 SCC 1

[11]Section 3: When pregnancies may be terminated by registered medical practitioners.-

(1) 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.

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that-

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

(ii) 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.

Explanation 1.-Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

[12]Section 5(1), MTP Act

[13] Section 2(d), MTP Act

[14] (2017) 3 SCC 462

[15](2018) 13 SCC 339

[16](2017) 3 SCC 458

[17](2017) 13 SCC 436

[18](2018) 11 SCC 606

[19]Section 3(4)(b), MTP Act

[20]Section 3(4)(a), MTP Act

[21]Section 9, Maternity Benefit Act, 1961: Leave for miscarriage, etc.—In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy.

One comment

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    I believe law should give freedom/right to woman to choose the pregnancy or abortion as she is the one who has to take the burden of the child and giving birth is connected to proper upbringing of the child as well.

    It directly saves the child also from future hardships.

    A woman who is coming to Court for the pregnancy termination and then she is not granted that permission will directly affect the health of the child, as he/she will never get love and affection from his/her mother as despised by her and ultimately the child becomes a burden for everyone.

    In India, we do not have policies and system like foster families which also leads to suffering of a child. There are already so many children in schools from broken families and our country could not provide for their basic independent survival and counselling, which is ultimately leading to suicides , arrogant and robust behaviour of youngsters in schools. A child develops a feeling that if I am not loved by anyone why should I care about anybody and thus leading to increase of crime and criminals.

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