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Medical Termination of Pregnancy Act, 1971

I. INTRODUCTION

Definition of Abortion - Cambridge Dictionary defines abortion as - "the intentional ending of a

pregnancy".

Kinds of Abortion - There are two kinds of abortion :-

1) Spontaneous Abortion – It is a kind of abortion which occurs during pregnancy due to

any complication and it is also known as miscarriages.

2) Induced abortion - has also been divided into two types:

 Therapeutic abortion – From its name it is clear that when abortion is done for the
protection of the mother life or when child is suffering from some severe health
problem like Hydrocephalus( brain not developed) it is known as Therapeutic
abortion.
 Elective abortion – An abortion induced for any other reason is known as elective
abortion.

II. BACKGROUND AND OBJECTIVES OF MTP, 1971

A. Position Prior To MTP, 1971 - Before Medical Termination of Pregnancy Act, 1971, the law
relating to Abortion was dealt under section 312 to 316 of Indian Penal Code, where abortion
done with or without consent of the women was punishable offence (both mother and
abortionists) except, if it is done for the protection of mother's life and in no other circumstances
abortion was allowed. Therefore, only therapeutic abortion was allowed as a result of which
mortality rate of mother had increased due to illegal and unsafe abortion.

B. Objective of The Act - The main objectives of the Act are as follows :-
1) To avoid abortion in unhygienic conditions.
2) To avoid degradation of mother’s health.
3) To consider the question of termination of pregnancy on Socio Medical grounds.
4) To Eliminate abortion by untrained persons.
5) To Legalize termination of pregnancy in certain situations.
6) To reduce maternal morbidity and mortality.
7) To restrict unlawful abortion.
8) To save dying and gravely ill pregnant woman.
9) To save the life of the mother.
10) The Act has been conceived as :-

Health measure – when there is a danger to the life or risk to physical or mental health of the
woman.
On Humanitarian grounds – such as when the pregnancy has resulted from a sex crime.
Eugenic grounds– where there is a substantial risk that the child, if born, would suffer from
deformities and diseases.

III. SALIENT FEATURES AND PROVISIONS OF THE ACT

A. SECTION 3 - Termination of Pregnancy by Registered Medical Practitioner

1. Legal protection to the Registered Medical Practitioner :- No punishment under the

Indian Penal Code or any other law is to be given to the Registered Medical Practitioner,
if he terminates the pregnancy as per the provisions of the MTP Act.
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2. Locus Standi
 Pregnant woman.
 Pregnant minor (written consent of the guardian is required)
3. Conditions:
A pregnancy can be terminated by a registered medical practitioner in good faith, however :
 Pregnancy must not exceed 12 weeks; or
 In case if it exceeds 12 weeks but not 20 weeks, then opinion of two registered
medical practitioners in good faith is required, expressing that continuance of
pregnancy would cause :-
1. Risk to the life of pregnant woman.
2. Grave mental and physical injury.
3. Mental & physical deformities to the child if born.
In determining the risk of injury to health, pregnant woman’s actual or reasonable
foreseeable environment is to be taken into account.
Consent - No pregnancy is to be terminated except with the consent of a pregnant woman

4. Explanation to Section 3
Explanation 1 - If the pregnancy has been caused by rape, it shall be presumed to
constitute a grave injury to mental health of pregnant woman.
Explanation 2- If pregnancy occurs due to failure of contraceptive, device or any other
method, then the anguish caused by such unwanted pregnancy may be presumed to
constitute a grave injury to mental health of pregnant woman.

5. Procedure in case of minor or mentally ill female.

Pregnancy of a woman who has :-
 Not attained the age of 18 years or
 Having attained the age of 18 years is a mentally ill person
shall not be terminated except with consent of the guardian in writing.

Case Law :- Krishna v. G. Rajan

Held :- The Act does not confer an absolute right of abortion to the pregnant women. It merely
confers a right to be considered for abortion. No question of abortion on demand, even before 12
weeks.

B. SECTION 4 - Place where the pregnancy may be terminated.

Pregnancy can be terminated either at :-

1. A hospital established or maintained by the Government; or

2. Any other place subject to following conditions
 Approved for the purpose of the Act by;
 Government; or
 District Level Committee consisting of:
 Chief medical officer or District Health officer, as the case may be, of the
District, as the chairman of the committee.
 No of members of committee - Minimum three and Maximum five
members including chairperson.

C. SECTION 5 - Cases in which Section 3 and 4 would not apply

The provisions of Section 3 and 4 relating to the time limit/length of pregnancy and opinion of
not less than two registered medical practitioners would not apply to termination of
pregnancy by a single registered medical practitioner in case he is of the opinion :-
 In good faith
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 That the termination of pregnancy is immediately necessary to save the life of the
pregnant woman.

Case law :- Suchita Srivastava and Anr. vs. Chandigarh Administration

Held :- A woman's right to make reproductive choices is also a dimension of personal liberty
under Article 21 of Constitution. On that basis, it allowed abortion of 24 week old pregnant lady
as well as it involved grave physical and mental injury.

Case Law :- PBN Yadav v. State of Gujrat

Held :- Termination of pregnancy even after 20 weeks had been permitted of the rape victim as
per section 5 as there was risk to the life of the pregnant woman.

Recently on July 28, 2017 the apex court rejected the plea of 10 year old rape victim, from
Chandigarh, for aborting a 32 week old foetus citing that it is neither in the interest of girl child
or the live foetus at this stage. She subsequently at the age of 10 did deliver a child.

Offences and Punishment

 Section 5(2) to (4)

Sr. No. Provision Offence Punishment

1. Section 5(2) Termination of pregnancy by a person other RI for 2 years to 7
than a registered medical practitioner. years.

2. Section 5(3) Termination of pregnancy in violation in a RI for 2 years to 7

place in violation of Section 4. years.

3. Section 5(4) Owner of the place where termination of RI for 2 years to 7

pregnancy takes place in violation of Section 4. years.

Explanation 1 – Owner means a person who is

the administrative head or otherwise of such
place.

D. SECTION 6 - Power to make rules

1. Central government may by notification in the Official Gazette, make rules to carry out
the provisions of the Act - The Central govt. in exercise of its powers under Section 6 has
enacted Medical Termination of Pregnancy Rules, 2003.

2. Such rules may provide for:

 Experience or training or both which a registered medical practitioner shall have
to terminate a pregnancy as per the provisions of the Act.
 Any other rules.

3. Such rules shall be laid before each House of the Parliament.

E. SECTION 7 - Power to make regulations

1. The State Government may order the following by regulations:

 Opinion of the registered medical practitioner regarding extension of the period of
pregnancy whereby it can be terminated.
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 Intimation and information regarding termination of pregnancy.

 Prohibit disclosure of such information.

2. Such information shall be given to the Chief Medical Officer.

3. Such regulations shall be laid before the State Legislature.

4. Willful contravention and failure to comply with regulations:

 Punishment with fine up to 1000 rupees

F. SECTION 8 - Protection of action taken in good faith

No suit or other legal proceedings shall lie against any registered medical practitioner for any
damage caused or likely to be caused by anything which is done in good faith or intended to be
done under the act.

IV. PERIOD FOR MEDICAL TERMINATION OF PREGNANCY IN OTHER

COUNTRIES

1. United States of America

 Abortion is legal at any stage of pregnancy, even without the consent of the spouse.
 As held in the case of Roe v. Wade.
 Abortion as a right - Earlier abortion was not allowed, whether voluntary or
involuntary. It was only after the case of Roe V. Wade that abortion was made legal and
also considered as one of the essential right under fundamental right and it is included as
a part of the Right to Privacy.

2. United Kingdom
 Abortion is legal till 24 weeks.
 Can be even later if the doctors’ risk mother’s life or sever deformities in the
fetus.

3. Australia
 In the capital territory – it can be done at any stage.
 Other states – 14 to 28 weeks.

4. Canada
 No abortion beyond 24 weeks.
 Unless the doctors can certify that it would be harmful to the mother.

5. Germany
 Abortion legal till 12 weeks.
 If mother’s life at risk then till 23 weeks.

V. SUGGESTIONS
 Abortion of pregnancy should be allowed in any stage, when fetus is suffering from any
severe health issue.
 MTP should be lenient in cases of such medical emergency.
 Awareness program is necessary to educate women for having healthy foods.
 Pregnant women with history of diabetics or thyroid should conduct the entire prescribed
test on time.
 Abortion rights should be given to all women as in European countries.
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 Media can play a vital role for spreading awareness in public relating to those tests which
one should must do for the detection of abnormality in foetus.
 Abortion should be allowed up to 24th weeks.
 Every woman should have the right of abortion.
 Law relating to abortion in India should be liberalize.

VI. CONCLUSION

In my view, abortion rights should be given to every woman as the same has also been
recognised in several International Conventions. At present under MTP, no women except a rape
victim and a married women failing to use contraceptive methods, can go for abortion. Either
they have to go illegal abortion or they will be forced to carry the baby, which is neither good for
the woman nor for the baby. On that account, women’s interest must be protected.