Abortion: violation of right to life against an unborn

The term abortion means expulsion of the immature foetus at any time before it reaches full growth i.e. the termination of pregnancy by any method before the foetus is sufficiently developed to survive independently. Abortion can be classified into two types: (a) Spontaneous which is technically referred to miscarriage and (b) Induced which means voluntary miscarriage, which constitutes an offence under sections 312 to 316 of the Indian Penal Code. Out of almost 35 million abortions which take place annually in the world, more than half of them are illegal and performed by untrained, unskilled persons and done under highly unhygienic conditions.

Section 312 makes the causing of miscarriage with the consent of the woman and section 313 causing miscarriage without the woman’s consent punishable. Section 312 requires two essentials:

(i)  Voluntarily causing a woman with child to miscarry(abort), and

(ii)  Such miscarriage (abortion) should not have been caused in good faith for the purpose of saving the life of the woman.

Section 312, I.P.C. makes voluntarily causing miscarriage an offence in two situations namely, when a woman is ‘with child’ and ‘quick with child’. As per judicial interpretation, a woman is considered to be in the former situation as soon as gestation begins and in the latter situation when the motion of a child is felt by the mother. Taking into account the nature and gravity of the offence in the latter case, the section has prescribed punishment in the form of imprisonment of either description which may extend to seven years and fine, whereas in the former case punishment may go up to three years of imprisonment, or fine, or both depending upon the nature of the offence in question.

Abortion permitted on therapeutic (medical) ground:

Section 312, I.P.C. permits abortion only on therapeutic grounds in order to protect the life of the mother. That is to say, the unborn child must not be destroyed except for the purpose of preserving the yet more precious life of the mother. If the act is done in good faith, the person is entitled to the protection of law. But, what constitute good faith is not a question of law, but of fact, to be decided in each and every case according to the facts and circumstances.

Medical Termination of Pregnancy Act, 1971:

To avoid the misuse of induced abortion and to soften the rigours of the law of abortion contained in the Indian Penal Code, the Medical Termination of Pregnancy Act, 1971was passed. . It is a small Act consisting of only eight sections. The MTP act was again revised in 1975.

The object of this Act is to confer on woman the right to privacy which includes the right to space and limit pregnancies, the right to decide about her own body. Another important feature of the Act is to encourage reduction in the rate of population growth by permitting termination of an unwanted pregnancy on the ground that a contraceptive device failed. The MTP Act lays down the condition under which a pregnancy can be terminated, the persons and the place to perform it. The reasons, for which MTP is done, as interpreted from the Indian MTP Act, are:

(i) A risk to life of a pregnant woman; or

(ii) A risk of grave injury to her physical and mental health; or

(iii) If the pregnancy is caused by rape; or

(iv) There exists a substantial risk that, if the child were born, it would suffer from some physical or mental abnormalities so as to be seriously handicapped; or

(v)  Failure of any device or method used by the married couple for the purpose of limiting the number of children; or

(vi) Risk to the health of the pregnant woman by reason of her actual or reasonably foreseeable environment

Physicians qualified to do MTP are:

(i)  A qualified registered medical practitioner who has assisted in 25 MTPs.

(ii)  A house surgeon who has done six months post in Obstetrics and Gynaecology.

(iii)  A person who has a diploma /degree in Obstetrics and Gynaecology.

(iv)  3 years of practice in Obstetrics and Gynaecology for those doctors registered before the 1971 MTP Act was passed.

(v)  1 year of practice in Obstetrics and Gynaecology for those doctors registered on or after the date of commencement of the Act.

(vi)  Whenever the pregnancy exceeds 12 weeks but is below 20 weeks opinion of two registered medical practitioners is necessary.             

Places where MTP can be performed:

This law guarantees the Right of Women in India to terminate an unintended pregnancy by a registered medical practitioner in a hospital established or maintained by the Government or a place being approved for the purpose of this Act by the Government. The certificate issued by the Government should be conspicuously displayed at a place easily visible to persons visiting the place.

Methods of induced abortion:

Abortion can be induced by many methods depending on the weeks of the pregnancy completed. Medical abortion is one that is brought about by taking medication that will end a pregnancy. The alternative is surgical abortion [as dealt with by the MTP Act, 1971], which ends a pregnancy by emptying the uterus with its associated complications and infection. Medical abortions can be performed as early as pregnancy can be confirmed. Though medical abortions are safer, easier and more effective, surgical abortions continue to be the most common method, as the majority of the population in the rural and urban areas is still ignorant about the availability and technique of medical abortion.

Despite gains in women’s health realized by the MTP Act, the number of illegal and unsafe abortions in India continues to be very high with a large number of abortions being performed every year by untrained persons in totally unhygienic conditions. Complications of unsafe abortions remain a major factor in contributing to high rates of maternal mortality throughout the country.

The MTP Act, 1971 was amended by the MTP (Amendment) Act, 2002. The main objective of the amendment to the MTP Act aimed at reducing the rate of unsafe abortions by making legal abortion more widely accessible. Lack of access to MTP services at the primary healthcare level is an important reason for the high rate of unsafe and illegal abortions. The amendment is aiming at decentralization of authority for approval and registration of MTP centres from the State to the district level. The current system for approving such centres is extremely cumbersome and slow. At the same time, however, efforts at decentralization need to be closely monitored to ensure that a speedier approval process does not compromise quality of care, and that adequate resources for both training and technology are made available.