Before 1971 in India, abortion was considered illegitimate.

Indian statutes
lacked provisions related to the termination of pregnancy. However, certain
provisions were made in the IPC, 1860, related to abortion. Section
312 to Section 318 of the IPC, 1860, dealt with “Offences related to new
born or unborn children.” Legally, termination of pregnancy was criminalised
under Section 312 of the IPC, 1860. Hence, Section 312 stated
that- “Whoever voluntarily tries to cause the miscarriage to a woman except
in the good faith or where the woman’s life in danger shall be liable for
imprisonment which may extend to three years and shall also be liable to
fine.” Earlier, in India, if an individual tried to terminate a pregnancy, the
person was punished with imprisonment along with a fine. For centuries,
women died because of unhygienic and illegal methods used for terminating
pregnancy.

HISTORY

The Shantilal Shah Committee was established by the Central Family

Planning Board of India in 1964. To increase its efficacy and to lower the
incidences of botched abortions and maternal deaths that were linked to
illegal and unsafe abortions, the report advocated liberalizing the rules
governing abortion. Its purpose was to investigate and examine the moral,
social, legal, and medical justifications for abortion. On 4th December 1966,
the Shantilal committee sent a report with thorough observations of the
then prevailing circumstances. A Medical Termination Bill was proposed in
the Lok Sabha and Rajya Sabha in 1969 based on the committee’s
recommendations, and the parliament approved it in 1971. The Act came
into force on 1-04-1972 and was amended in the years 2002 and 2021.

Objective:

The objective of the MTP Act, 1971 is enshrined under its Preamble i.e., only
specific pregnancies will be permitted to be ended by licensed medical
professionals. The primary objectives of the Act are also to reduce the death
rate of women from unsafe and illegal abortions and to optimize the
maternal health of Indian women. Only after this legislation were women
entitled to have safe abortions, but only under specific circumstances.

 Section 3 of the MTP Act, 1971, states the conditions under which
pregnancy can be terminated. “When pregnancies may be terminated by
the registered medical practitioners.”

1. A licensed health professional who terminates a pregnancy in

accordance with the law should not be held in violation of any
crime listed in the IPC, 1860, or any other legislation at the time of
the medical procedure.
 2. Where the gestational period has not lasted longer than 12
weeks.
3. Where the length and duration of the pregnancy has exceeded
12 weeks but not 20 weeks. The same should be decided on a
case-to-case basis by the authentic assessments of the two
doctors.
4. When there is a probability that the unborn child will have poor
physiological and mental health and may also be disabled.
5. It is crucial to keep in mind that any girl under the age of 18 who
is insane or of unsound mind cannot have her pregnancy
terminated without her guardian’s or parent’s written
authorization.
6. A woman’s bodily or mental health will be in great danger if the
pregnancy is allowed to continue.

In case of an emergency, the opinion of only one practitioner is also allowed

as per Section 5(1).The abortion under the Act can be performed either by
using drugs or by a surgical procedure, depending on the stage of pregnancy
and the medical condition of the woman. The Act further lays down certain
restrictions on the termination of pregnancy, including the requirement for
the woman to give her written consent under Section 3(4)(b) for the
procedure and the requirement for the medical practitioner to follow certain
protocols and procedures to ensure the safety of the woman.

 The destination of the pregnancy termination is specified

under S.4 of the Act. It implies that all public hospitals that
are properly furnished with the required resources are allowed
to offer abortion services.
 S.5(1) of the Act establishes two key conditions pertaining to
abortion, which assert that if the concerned doctor acts in good
faith as well as due diligence and determines that it is
absolutely essential to carry out the termination of pregnancy, it
would not be compulsory by law to accept the medical opinions
of two registered medical practitioners. Additionally, it states
that if it is discovered that the termination was conducted by a
non-registered healthcare professional, it would constitute a
criminal offence.

CASE LAWS:

X v. State (NCT of Delhi) the Supreme Court has come up with an

extended scope of MTP Act to those wives, who have conceived out of forced
sex by their husbands, which means that the definition of rape will include
“marital rape” as well for the purpose of the MTP Act and Rules. Also, Court
while interpreting the term ‘women’ has included persons who identified as
any other gender, but required access to reproductive healthcare and has
stated that the right to reproductive choice is an essential facet of Article 21
of the Constitution and it is an obligation of the State to protect it.
Furthermore, the Court has also contended that doctors are not obliged to
disclose the identity of any minor girl seeking abortion in the information
provided to police.

N. v. Secy. Health and Family Welfare Dept

the court has discussed two contradicting provisions i.e. Section 19(1) of the
POCSO Act which mandate to report the child sexual offences to the special
juvenile police unit or the local police but in contrary to it Section 3 of the
MTP Act where it is allowed for a married or unmarried minor girls between
the age of 16 to 18 years to terminate their unwanted pregnancy, that has
arose out of a consensual relationship. The Court under this case has
“directed the Delhi Government to issue a circular directing that the identity
of a minor girl, who is seeking medical termination of her pregnancy, and
her family shall not be disclosed in the report prepared by registered
medical practitioners (RMP) to the police”.

Aryamol P.S. v. Union of India. “Kerala High Court has evolved a new
aspect and has contended that strain in marriage can also constitute a valid
ground to seek abortion of pregnancy within the gestation period of
pregnancy up to 24 weeks, as the drastic changes in the matrimonial life of
a pregnant woman is sufficient ground to fulfil the condition of “change of
her marital status” in Rule 3-B of the Medical Termination of Pregnancy
Rules, 2003. The Court further held that even though she might not be
legally divorced, her husband’s permission would not constitute an essential
requisite for undergoing medical termination of pregnancy.”

Minor R v. State (NCT of Delhi) “The Delhi High Court has observed that
denying a woman the right to medical termination of pregnancy in sexual
assault cases and imposing the responsibility of motherhood on her, would
amount to “denying her the human right to live with dignity” as she has a
right in relation to her body including the right to say “yes or no” to being a
mother.”

ABC v. State of Maharashtra “the medical termination of pregnancy has

been allowed to a 33-week pregnant women against the advice of the
Medical Board, as her pregnancy involves severe foetal abnormality and
Court allowed the abortion irrespective of the exceeding period of the
gestation for terminating the pregnancy.”