This article was written by Apoorva Maheshwari, a student of DES Law College, Pune.
India, the country with the second largest population in the world was amongst the first countries to legalise abortion in the year 1971. The escalating cases of maternal morbidity due to perilous abortions, as well as the idea that abortions could be used as a method of population control motivated the government to enact the Medical Termination of Pregnancy Act in 1971.
Though, the Act provided for abortion as a qualified right to an Indian woman, overriding anything contained in the Indian Penal Code (Act 45 of 1860) but does not provide it as an absolute right.
Access to safe abortion services and post abortion care should be the right of every woman irrespective of her marital or social status. There are dramatically contrasting abortion legislations around the globe because of the legal, moral and ethical dilemmas attached to it. In some countries, abortion is a matter of personal choice while in others it is absolutely illegal. In majority cases, abortion is a qualified right subject to extraordinary conditions like a danger to the life of the mother, foetal impairment or cases of rape.
The 46- years old enactment is in dire needs of amendments with a view to protect the rights of the mother as well as the unborn.
Abortion or medical termination of pregnancy (definition):
Oxford Dictionary defines abortion as “the deliberate termination of human pregnancy, most often performed during the first 28 weeks”.
Black’s Law Dictionary defines it as “the artificial or spontaneous termination of a pregnancy before the embryo or foetus can survive on its own outside a woman’s uterus.”
Therefore, abortion or medical termination of pregnancy is nothing but premature and intentional termination of pregnancy.
Medical Termination of Pregnancy Act, 1971:
In India, Shantilal Shah Committee (1964) recommended liberalization of abortion law in 1966 to reduce maternal morbidity and mortality associated with illegal abortion. On these bases, in 1969, Medical termination of pregnancy bill was passed by Indian Parliament in August 1971. Medical Termination of Pregnancy Act, 1971 (MTP Act) was implemented from April 1972.
Grounds for abortion:
Sec 3 of the Act provides the grounds for termination of pregnancy. It states that 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,-
the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health ; or
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.
Sub-section 4 of Sec 3 further provides that no pregnancy shall be terminated except with the consent of the pregnant woman and that of the guardian in case the woman is under 18 years of age or is a lunatic.
Sec. 5 provides for the exception of the general rule for termination of pregnancy. It states that the provisions of Sec.4 and Sec 3(2) regarding the length of the pregnancy and the opinion of not less than two registered medical practitioners, do not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
Why is it problematic and needs changes:
On the bare reading of Sec 3 of the MTP Act, it becomes lucid that abortion in India is not an absolute rather a qualified right of a pregnant woman. She can only abort the child when, firstly, when there is risk to her life or grave injury to her health and secondly, when there is significant risk that the child would suffer from such abnormalities as to be seriously handicapped, if he/she were born. The whole statute doesn’t make any reference to the choice of the woman, financial needs, and rights of the unborn.
Problems with the 46-years old legislation:
The MTP Act, 1971 was enacted almost half a century ago. It was drafted keeping in view the needs of the society and the advancement of technology prevalent at that time. The morals of a society keep on changing with time and hence, law needs to be changed corresponding to the levels of morality in the society since law and morality are closely related. The Act has now become out-dated and today it is in substantial want of amendments because of the following problems in the present statute:
Period of 20 weeks for termination of pregnancy is short: The principle of keeping the window for abortion open only until 20 weeks is that, generally, abnormalities can be detected by that time. In 1971, when the Act was formed, there were no ultrasounds or foetal monitors to give a high-tech peek at the developing foetus.
But today, prenatal diagnostics can determine the height, weight, size of the brain, Down syndrome, congenital heart defects, kidney functioning but most of these abnormalities are picked up in ultrasounds only by the 20th to 24th week and that exceeds the legal abortion time limit. A lot of brain defects become evident much later than the 20th week and many a time the report takes 2 to 3 weeks to come, thereby not leaving any window for termination.
Furthermore, there are cases when risk to mother’s life or grave injury to her health is detected after the 20-weeks period. In such cases, either the woman has to go to the Court which delays the abortion, thereby increasing the danger to her life or else she has to give up her life without even applying to the Court.
The benefit of Sec. 5 of the Act, which allows termination after 20 weeks if the medical practitioner is, in good faith, of the opinion to immediately terminate the pregnancy in order to save the woman’s life, is given rarely and generally permission from the Court to avail Sec. 5 delays the abortion resulting in the woman’s demise.
Only married woman are given the right of abortion when it comes to failure of contraception as a ground for it: In 1971 society, it was the situation that pregnancy of an unmarried woman was considered to be a sin and so was the case with a widow or a divorcee. However, with changing mentality, this notion is no more ubiquitous. Admitting to the fact that pregnancy of an unmarried woman is still considered as a stigma and a taboo but the percentage of these people has considerably reduced. A woman, whether married or not, has her own freedom. Pregnancy because of failure of contraception by an unmarried woman and her partner is not recognised as a ground for causing grave injury to the mental health of the woman.
The Act does not refer to the choice of the woman and her financial capacity: The Act permits the termination of pregnancy only on medical grounds. The freedom of choice of woman to abort her child is not given any consideration. There are times when she doesn’t want a child because she wants to focus more on her career, she or her husband do not have the required financial capacity to afford a child, and simply when she is just not ready to be a mother. The present legislation fails on these grounds.
Violation of right to privacy and Art. 21 of the Constitution: Married woman has to prove that pregnancy was due to failure of contraception. Proving these inmate details is a direct violation of her Right to Privacy which has recently been declared to be a fundamental right by the Supreme Court. Further, MTP Act, 1971 also violates the woman’s right to personal liberty and dignity as guaranteed by the Constitution under Art.21. She is not provided with her liberty to bear the child or abort it. As per the Act, the final say is of the medical practitioner and not of the pregnant woman.
Illegal and unsafe abortions: In conservative Indian society, sexual intercourse outside marriage is subject to severe criticism; the lack of the access to safe abortion services renders women vulnerable to exploitation and illegal abortions. According to a WHO report, the access to safe abortion through the public health system is mainly restricted to cities in our country. Despite a mandate to provide abortion services, less than 20% of primary health care centres provide such facilities in most of the states. According to a study conducted by WHO and Guttmacher Institute, the average unsafe abortions in the south central Asia region, including countries like Pakistan, Bangladesh, Sri Lanka, Nepal and India, was as high as 58%.
Rights of the unborn: The MTP Act, 1971, further, does not recognise the rights of the unborn child. It fails to give any mention to the same.
No provision for penalties: The Act does not contain chapter relating to offences and penalties for violating its provisions.
Following are the few celebrated cases which gave new interpretation to the MTP Act, 1971 and also contributed to the preparation of the draft of the MTP Amendment Bill, 2014:
Niketa Mehta case: This is one of the most landmark cases in the history of the MTP Act, 1971. In 2008, a Mumbai couple Haresh and Niketa Mehta petitioned to abort their 26-week-old foetus diagnosed with a congenital heart defect. The Bombay High Court refused the plea saying that the medical experts had not categorically stated the child would “suffer from serious handicaps” and the pregnancy ended in a miscarriage. But the case triggered an amendment to the archaic law since it was for the first time that terminating a foetus above 20 weeks was debated.
Rape survivor case of May 2017: The apex court denied a plea to abort a 26-weeks-old foetus, made by a 35-year-old HIV-positive woman who had been sexually assaulted. The court cited a report prepared by a doctor at the All India Institute of Medical Sciences (AIIMS). The report claimed that an abortion at such a stage could endanger the mother’s life. The court noted that the cumbersome legal battle had resulted in delaying the relief that the 35-year-old woman had sought.
26-weeks old foetus: In Feb, 2017, the SC refused to allow a woman to abort her 26-week-old foetus that was to be born with Down syndrome, a congenital disorder that postpones the onset of developmental and intellectual features. Admitting that the child may suffer from physical and mental abnormalities, the bench said that their hands are tied by law.
24-weeks old foetus: In July 2016, the Supreme Court allowed a woman to undergo abortion in her 24th week of pregnancy, granting her the benefit under Section 5 of MTP Act, 1971, that allows abortion despite the 20-week ceiling.
32-weeks old foetus: The Apex Court denied the plea to abort the 32-weeks-old foetus of a 10 years old rape survivor from Chandigarh stating that it was too risky for the child to bort at such advanced stage stating that it was neither in the interest of the woman nor the foetus.
24-weeks or 26-weeks-old foetus: The SC on the other hand allowed the petition to abort 24-weeks and 26-weeks-old foetus in two separate cases. In the former case, the pregnant woman was a 14-year old rape survivor and in the latter, it was a pregnant lady from Kolkata. The SC allowed the abortion in the latter case saying that the child, even if born alive, might not survive for a long time as the baby would have to go through multiple surgeries due to congenital disorder.
MTP Amendment Bill, 2014:
The draft of the MTP Amendment Bill was released in 2014 by the Ministry of Health and Family Welfare. Following are the major proposed amendments:
The present Act allows healthcare providers to have the final say on abortion, and creates an environment in which women are dependent on their healthcare providers. However, the Amendment Bill proposes changes that could initiate a shift in the focus of the Indian abortion discourse from healthcare providers to women, thereby reducing the vulnerability of women.
The Bill substitutes the term ‘registered medical practitioner’ with ‘registered health care provider’. It also expands the base of health care providers by including mid-level and non-allopathic healthcare providers.
Another welcomed step in the Bill is the explicit inclusion of abortion care to unmarried women in the case of unwarranted pregnancies.
The gestational limit for abortion has been proposed to extend to 24 weeks subject to exclusion of specific foetal anomalies after this period.
The term ‘termination of pregnancy’ has been defined.
Provision for offences and penalties has been inserted.
As observed from the above observations and some cases mentioned, it becomes clear that the Supreme Court has not been uniform in allowing and dismissing the pleas to abort the foetus over 20-weeks old. This inconsistency has occurred because even the Apex Court is tied by the provisions of the law and it has time and again asked the legislature to amend the present statute.
Though the Amendment Bill covers most of the defects in the present legislation, it again fails to consider the Right to privacy of the woman to prove failure of contraception, her Right to personal liberty to continue her pregnancy or not and rights of the unborn. Only medical grounds are provided even in the Bill. It does not consider financial grounds or other factors as afore-stated.
Further, the Bill has been in the cold storage for past three years and it still needs the Cabinet’s approval before it could be introduced in the Parliament.
This is distressing that such a crucial issue has been the subject to delay and ignorance. The access to safe abortion is the basic human right of a woman. The law must be changed with an immediate effect to give the bodily autonomy to women and decrease their susceptibility from subjective interpretations by medical practitioners and courts. Robust laws without any discrimination are the need of the hour to save women from the danger lifelong distress of carrying unwarranted pregnancies and opting for unsafe and illegal abortion.
From the above observations, the following can be concluded.
The MTP Act, 1971 has become too old to be allowed to provide for termination of pregnancy in 2017. The 46-years old Act does not correspond to the present needs of the society and the levels of technology prevalent.
The Supreme Court has been interpreting the provision of the statute in the interest of justice, equity and good conscience and where the legislature fails; it is the duty of the Courts to protect the rights of the woman and the child as the Courts are known as ‘guardians of rights’. It has been asking the legislature to amend the present law but legislature has fallen short to enact the required amendments and make the law proactive to mother. However, even the Supreme Court is bound by the law and cannot go beyond the scope of its provisions.
Though the Amendment Bill has been released but even after three years, it has not got the Cabinet’s approval. Such an important issue has been subjected to postponement and recklessness.
Admitting the fact that the Amendment Bill, 2014 removes a number of hindrances from the present Act but it does not cover all the defects in the present Act. The Amendment Bill needs further re-thinking and re-drafting so that the number of illegal and unsafe abortions in our country can be lessened and also the lives of the mother or the child can be saved in time.
Anamika Jha, Forced Motherhood: The Abortion law in India, YKA (Aug 17, 2017) https://www.youthkiawaaz.com/2017/08/forced-motherhood-the-abortion-law-in-india/.
 Sushmi Deyi, Times of India (Oct. 5, 2017), https://timesofindia.indiatimes.com/india/abortions-may-be-legal-in-india-but-60-are-unsafe-study/articleshow/60946913.cms.
 Express Web Desk, The Indian Express (Jan 18, 2017), http://indianexpress.com/article/india/sc-allows-24-week-pregnant-woman-to-abort-foetus-a-glimpse-of-the-trajectory-of-indias-abortion-laws-4480004/.
 Amit Anand, Times of India (Jul 28, 2017), https://timesofindia.indiatimes.com/india/its-too-late-and-risky-to-allow-10-year-old-rape-survivor-to-abort-32-week-fetus-sc/articleshow/59810675.cms.