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37 JILI (1995) 293
Abortion and the Law in Countries of Indian Subcontinent, Asean Region,

United Kingdom, Ireland and United States of America
ABORTION AND THE LAW IN COUNTRIES OF INDIAN SUBCONTINENT, ASEAN REGION,

UNITED KINGDOM, IRELAND AND UNITED STATES OF AMERICA
by
K.D. Gaur*
I Introduction
ABORTION IS said to occur when the life of the foetus or embryo is destroyed in the
woman's womb or the pregnant uterus empties prematurely. Abortion may be
classified into various categories depending upon the nature and circumstances under
which it occurs. For instance, it may be either, (t) natural; (ii) accidental; (iii)
spontaneous; (iv) artilical or induced abortion. Abortions falling under the first three
categories are not punishable, while induced abortion is criminal unless exempted
under the law.
Natural abortion is a very common phenomena and may occur due to many
reasons, such as bad health, defect in generative organs of the mother, shocks, fear,
joy, etc. Accidental abortion very often takes place because of trauma consequent to
accidents. In accidents there is always some direct or indirect forceful impact on the
uterus dislodging the ovum, embryo, or placenta from the natural attachment.
Spontaneous abortion sometimes may take place because of pathological reasons,
where pre znancy cannot be completed and the uterus empties before the maturity of
foetus. This may happen because of metabolic circumstances or accumulation of
poison which intertere with the development of embryo and advancement of
pregnancy.1
Induced abortion is defined in law as an untimely delivery voluntarily procured with
intent to destroy the foetus. It may be procured at any time before the natural birth of
the child.2 However, in medical terminology abortion means untimely delivery of a
child before it is viable, i.e., capable of being reared, if born
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at the time of the act of abortion. A child is considered viable from the twenty-eighth
week of pregnancy.3
This paper in brief discusses the law of abortion in countries of the Indian
Subcontinent, ASEAN region, UK, Ireland and USA. An attempt has been made to
examine the development of law in its historical perspective and steps taken by the
law makers in softening the rigours of law by permitting (allowing) termination of
pregnancy in various situations, such as when caused as a result of rape, etc., it
involves a risk of grave injury to the physical or mental health of the woman, or to
limit the number of children as family planning measure, besides saving the life of the
mother.4
The role played and the liberal altitude adopted by courts in interpreting the strict
provisions of the law of abortion with a view to exempting doctors and others acting in
good faith from criminal liability for causing miscarriage has been elaborately
examined.5 It is of interest to note that the law of miscarriage (i.e., induced abortion)
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contained under the Penal Code, 1860 (IPC) in sections 312 to 316 have been
incorporated in penal laws of the countries of the Indian Subcontinent, Pakistan,6
Bangladesh,7 Sri Lanka8 and in Malaysia9 and Singapore10 of ASEAN region. Hence the
provisions relating to abortion (causing miscarriage) in India and these countries are
almost similar. Dissimilarities and distinctions in the law on the subject have been
discussed and explained at the appropriate places.
II Abortion in India
(1) Causing miscarriage (induced abortion) : an offence under Penal Code
The law of the land has always held human life to be sacred and the protection that
the law gives to human life it extends also to the unborn child in the mother's womb.
He must not be destroyed unless it is for the purpose of preserving the yet more
precious life of the mother. Keeping this in view the Code has designated causing
miscarriage a serious of tence, and made both causing miscarriage “with the consent”
or “without the consent” of the woman punishable under sections 312 and 313
respectively. However, to attract the provisions of section 312 of the Code two
elements must be satisfied, viz.., (i) miscarriage should have been caused voluntarily;
and (ii) miscarriage should not have been caused in good faith for the
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purpose of saving the life of the woman.
(2) Miscarriage: meaning

Section 312 of IPC defines, ‘causing miscarriage’ as follows:
Whoever voluntarily causes a woman with child to miscarry, 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.
The framers of the Code have not used the word ‘abortion, in section 312, which
relates to an unlawful termination of pregnancy. This was perhaps done to avoid
hurting the sentiments of traditionally bound and conservative Indian society. The
section speaks of ‘miscarriage’ only, which has not been defined in the Code. However,
miscarriage, in its popular sense, is synonymous with abortion and consists in the
expulsion of the embryo-foetus at any time before it reaches full growth.
Miscarriage technically refers to spontaneous abortion, whereas voluntarily causing
miscarriage, which is an offence under the Code stands for criminal abortion. Legally
miscarriage means the premature expulsion of the product of conception, an ovum for
a foetus, from the uterus, at any time before the full term is reached. Medically, three
distinct terms, viz., abortion, miscarriage and premature labour are used to denote the
expulsion of a foetus at different stages of gestation. The term abortion is used only
when an ovum is expelled within the first three months of pregnancy, before placenta
is formed. Miscarriage is used when a foetus is expelled from the fourth to the seventh
month of the gestation, before it is viable, while premature labour is the delivery of a
viable child possibly capable of being reared, before it has become fully matured.11
(3) ‘Woman with child’ and ‘woman quick with child’: distinction
A distinction is made under section 312 of the Code between causing miscarriage
when a woman is ‘with child’ and ‘quick with child’. As per judicial interpretation, a
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woman is considered to be in the former stage as soon as gestation begins, and in the
latter stage when the motion is felt by the mother. In other words, quickening is a
perception by the mother that movement of the foetus has started. It obviously refers
to an advanced stage of pregnancy. Taking into account the nature and gravity of the
offence in the latter case, severe punishment of
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imprisonment which may extend to seven years and fine, whereas in the former case a
lesser punishment of three years of imprisonment or fine or both, have beer provided
under section 312 of IPC. When the termination of pregnancy is caused without the
consent of the woman, punishment may extend to imprisonment for life or
imprisonment of either description for a term which may extend to ten years and fine
(section 313).
If the death of the woman is caused by an act done with intent to cause miscarriage
with her consent punishment may extend to ten years of imprisonment and fine, and if
it is done without her consent, imprisonment for life or ten yean and fine (section
314).
An act done with intent to prevent a child from being bom alive or to cause it to die
after birth is punishable upto ten years of imprisonment or fine or both (section 315).
And the causing of death of a quick unborn child (advanced stage of pregnancy) by an
act amounting to culpable homicide is punishable upto ter years of imprisonment and
fine (section 316).
The Explanation clause appended to section 312 of the Code makes it clear that the
offender could be a woman herself or any other person. The desire of a woman to be
relieved of her pregnancy is no justification for termination of pregnancy. As early as
1886 in Ademma,12 a woman was charged under sectior 312 of the Code for causing
herself to miscarry, though she had been pregnant for only one month, and there was
nothing which could be called even a rudimentary ‘foetus’ or ‘child’. The lower court
acquitted the woman taking a lenient view of the matter and held that as the prisoner
had been pregnant for one month only, she could not be said to have been ‘with child’
within the meaning of section 312 of the Code. But the High Court held the acquittal
bad in law emphasising that it was the absolute duty of a-prospective mother to
protect her infant from the very moment of conception.
A person is also liable for attempt to commit a criminal abortion under Sectior 312
read with section 511 of IPC, even if he fails in his endeavour. For instance the
Calcutta High Court in R. v. Arunja Bewa,13 where the term of pregnane) was almost
complete, and an attempted abortion resulted in the birth of the child set aside a
conviction under section 312 and maintained conviction under sectior 312 read with
section 511 of the Code for attempt to commit miscarriage.
In Munah binte Ali v. Public Prosecutor,14 (a case from Malaysia) the accused, who
tried to procure an illegal abortion, by inserting an instrument inte a woman's vagina
with the view thereby of causing a miscarriage was held guilty of an attempt to cause
abortion by the lower court under section 312 read will section 511 of the Malaysian
Penal Code and sentenced to three months' impris onment, though the woman
unknown to the parties was not pregnant.
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Dismissing the appeal against the conviction, the High Court of the Federation of
Malaya by a majority of two to one held that in a charge of attempting to cause a
woman to have a miscarriage, it is not necessary for the court to be satisfied that the
woman is ‘with child’ before that court proceeded to convict.
On the other hand, in Asgarali Pradhania v. Emperor,15 the Calcutta High Court held
the accused not guilty of an attempt to cause miscarriage under section 312 read with
section 511, IPC as the materials sought to be made use of for termination of
pregnancy were not harmful.
In Malayara Seethu, In re,16 the appellant was convicted by the lower court under
section 312 of IPC for having caused miscarriage on or about 30.11.1952 to a girl
Ammayya and sentenced to rigorous imprisonment of two years and a fine of Rs. 300.
The child in this case was born alive and the pregnancy was beyond seven months.
Setting aside the conviction of the appellant, the High Court of Mysore held:
Medically this is a case of premature labour and not of miscarriage. Acts of
doctors and nurses which facilitate or accelerate delivery cannot be treated as
offences under the section only because the delivery otherwise would have been
delayed and particularly when the child is born alive and no injury is caused to the
mother or the child as the case may be.17
(4) Abortion on therapeutic grounds
As stated earlier, section 312 of IPC permits termination of pregnancy on
therapeutic (medical) grounds in order to protect the life of the mother. The unborn
child in the womb must not be destroyed unless the destruction of the child is for the
purpose of preserving the yet more precious life of the mother. The provision by
implication recognises that the foetus has a right to life.
However, the Austrian constitutional courts in 1974 refused to recognise ‘right to
life’ to unborn life.18 The court was confronted with the question as to whether article 2
of the European Convention for the Protection of Human Rights and Fundamental
Freedom, which provides that ‘everyone's right to life’, shall be protected by law is
applicable to ‘unborn life’ or not. The court refused to include ‘unborn life’ in its
definition of the term ‘everyone’ as pleaded by the Austrian Government, because
some states did not recognise a right to life for human beings yet unborn, and held
that the term everyone’ is limited to ‘born human beings’. It was illogical to include
protection to unborn life in the Convention, since it provides for the deprivation of life
in certain specified cases.
To claim exemption from criminal liability on therapeutic grounds, the threat of life,
however, need not be imminent or certain. If the act is done in good faith,19
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the person is entitled to the protection of law. But good faith is deceptive and
ambiguous enough to protect most therapeutic abortions so long as they are
conducted ostensibly to preserve the mother's life. In fact, what constitutes good faith
is not a question of law, but of fact to be decided in each and every case according to
its facts and circumstances.20
(5) Inadequacy of law to protect illegal abortions

A careful perusal of the provisions contained in sections 312 to 316 of IPC would
reveal that the law of abortion in India, till the enactment of the Medical Termination
of Pregnancy Act 1971, was very strict.21 It was estimated that before the enactment
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of that Act as many as five million inducted abortions were carried out in India every
year, of which more than three million were illegal,22 and approximately one-seventh
of women who became pregnant were resorting to back street abortions at the hands
of inexperienced and unqualified persons, such as quacks and paramedical personnel,
like nurses, midwives, etc., in strict secrecy to avoid the horror of law, through a
variety of crude and unhygenic methods for paltry sums of money ranging from Rs. 5
to Rs. 300, with all the risks of morbidity and mortality.23
At times greedy doctors would exploit helpless victims by extorting a huge sum of
money for terminating a pregnancy. The rigidity of legal provisions24 in seeking public
men, doctors, social workers and social scientists who advocated reforms now and
then, the changed attitude towards a liberalised law of abortion really came about only
when the idea was mooted by the Central Planning Hoard of the Government of India
in 1964 as a family planning measure. The apathy on the part of the social reformers
and government was perhaps because of the fear of opposition by fundamentalists,
fanatics, anti-abortionist groups and conservative religious leaders against any move
for liberalisation in laws of abortion under any circumstances.25 Religion26 , in a
traditionally bound and conservative society like India, Malaysia, Indonesia, Pakistan,
Bangladesh, Sri Lanka, etc., in fact,
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plays a dominant role and commands a major influence upon the social development
and value orientation of the populace.
There was an unprecedented uneasiness in the Ministry of Health and Family

Welfare over the large number of abortions taking place in the country.27 The
Government of India was much concerned about the unprecedented rise in population.
India's population on 1 March 1991 stood at 846.30 million (439.23 million males and
407.07 females),28 which has further gone up to 900.03 million as on 10 July 1994.29
India's population has doubled itself since 1947.30
With the present growth rate of population it is expected that it will cross the
watermark of 1,000 million by the end of the twentieth century. As a consequence,
whatever progress India has made in economic, scientific, technological, social and
educational fields during the last four and a half decades have been partly diluted and
whittled down. In fact, the population increase alone had absorbed more than 50 per
cent of the economic growth, leaving the level of living in almost the same position as
before. The second largest country in the world, next only to China, India is the home
of 16 per cent of the worlds population.31
(6) Steps to liberalise law of abortion
As stated above one of the most crucial problems India is facing today is the
burgeoning population which has been growing at an alarming rate. It is increasing by
about 17 million per year.32 Such a rapid increase in population has very serious
repercussions on socio-economic development. Visualising the gravity and magnitude
of the enormous increase in population and its adverse effect on the one hand, and
hardships caused to women as a result of the draconian law of miscarriage on the
other, the Government of India in 1964 constituted a committee to study the question
of liberalisation of the law of miscarriage (abortion) contained in section 312 of IPC
which makes induced abortions illegal except to save the life of the woman.
After making a careful study of the pros and cons of the entire issue and taking a
pragmatic view of the socio-economic and legal problems involved in cases of
unwanted pregnancies, the committee recommended to the Government of India,
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amendment in the out dated and outlived law of miscarriage contained in section 312
of IPC. The committee observed:
Whatever may be the moral and ethical feelings that are proposed by the society
as a whole on the question of induced abortion, it is an incontrovertible fact that a
number of mothers are prepared to risk their lives by
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undergoing an illegal abortion rather than carrying that particular child to term.
The committee submitted a comprehensive report suggesting various situations

justifying termination of pregnancy. It recommended that abortion should be allowed
not only to save the life of the pregnant woman, but also to avoid grave injury to her
physical or mental health arising due to pregnancy caused by rape, etc.
(7) Medical Termination of Pregnancy Act 1971
The Government of India after a careful consideration of the recommendations of
the committee brought forth in 1970 a comprehensive Bill in Parliament setting forth
various situations under which pregnancy could be lawfully terminated. The Bill
designated as the Medical Termination of Pregnancy Bill 1970 was eventually passed
by both Houses of Parliament, i.e., Lower House and Upper House in August 1971 as
the Medical Termination ot Pregnancy Act 1971 (M T P A). The Act received the assent
of the President of India on 8 August 1971 and came into force on 1 April 1972 after
the government framed rules for its implementation as required under section 7 of the
Act.
Though the idea of liberalising the law of abortion came from family planners as a
measure to check unprecedented rise in population, the government, while introducing
the Bill in Parliament, cautiously denied its having any connection with the family
planning programme so as to avoid the risk of its opposition from the fundamentalists
and religious fanatics, mullas and pandits. As per offical statements the HTPA had
been envisaged with the following three objectives:
(i) health measures, when there is danger to the life or risk to physical or mental
health of the woman; or
(ii) humanitarian grounds, such as when pregnancy is caused as a result of a sex
crime or intercourse with a lunatic woman, etc.; or
(iii) eugenic grounds, when there is a substantial risk that the child, if born, would
suffer from deformities and disease.
It is of interest to note that though the Medical Termination of Pregnancy Bill could
be passed in Parliament without any strong opposition, since the then Congress Parly
in power enjoyed a two-third majority in both the Houses of Parliament, (i.e., in the
Lower House (Lok Sabha) and Upper House (Rajya Sabha), yet out of twelve different
political parties and groups in Parliament only four, viz., (i) the government officals,
(ii) All India Women's Conference, (iii) Congress Party, and (iv) the Communist Party
of India, had a positive attitude towards the Bill and supported for its enactment. On
the other hand, four groups, viz, (a) Muslim League; (b) Jan Sangh, (present
Bharatiya Janata Parly); (c) Communist Party Marxist (CPM), and (d) Kerala Congress
had a negative attitude and opposed the passing of the Bill. National Pederation of
India Women
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Organisation and the Swatantra Party (rightist party) did not take any stand on the
Bill. The medical profession was divided, 75 percent supported the Bill and 25 per cent
opposed it.33
The MTPA is a small Act consisting of eight sections. Its object, besides elimination
of the high incidence of illegal abortions, is perhaps to confer on women the right of
privacy,34 which includes the right to, (i) space and limit pregnancies (i.e., whether or
not to bear children); and (ii) decide about her own body.35 Another important feature
of the Act is to encourage a reduction in the rate of population growth by permitting
termination of an unwanted pregancy on the ground of failure of a contraceptive
device36 resulting in pregnancy of the woman besides many other grounds.
(8) Grounds of termination of pregnancy
Section 3 of MTPA which is the operative section has modified the strict provision of
the law of abortion as contained under section 312 of IPC by permitting termination of
a pregnancy in a number of situations. The section, inter alia, envisages in sub-section
(2) that the termination of a pregnancy by a registered medical practitioner37 is not an
offence, if the pregnancy involves:
(i) a risk to life of the pregnant woman; or
(ii) a risk of grave injury to her physical or mental health; or
(iii) if the pregnancy is caused by rape; or
(iv) there exists a substantial risk that, it 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
forsecable environment.
An important feature of the Act is that it does not permit termination of pregnancy
after twenty weeks. Sub-section (2) of section 3 of the Act which is
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the pertinent clause on the subject states:
[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 docs 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.
No pregnancy can be terminated without the consent of the woman, and in the case
of a woman who has not attained the age of eighteen, or if she is a lunatic, without the
consent in writing of her guardian.38 Section 4 of the Act prescribes that the
termination of pregnancy must take place according to provisions of the Act and, that
it must be performed in a hospital established or maintained by the government, or in
a place approved for the purpose by il.39
However, in case of an emergency where the termination of pregnancy is, according
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to medical opinion, immediately necessary to save the life of the pregnant woman the
literal compliance of the provisions of sub-section(2) of section 3 as relates to the
length of the pregnancy and the opinion of not less than two medical practitioners,
and section 4 relating to place of termination of pregnanccy, hospital, etc., may be
waived.40 ”
Section 8 of the Act gives legal protection to the doctors for any damage caused or
likely to be caused by anything done or intended to be done in good faith for the
purposes of termination of pregnancy.41 In other words, a doctor is exempted from
liability for causing miscarriage if it is proved that he acted in good faith to procure the
termination of pregnancy42 However, if found lo be negligent he will be held guilty of
criminal negligence.
Section 6 of the Act empowers the Federal Government to make rules to carry out
the provisions of the Act for its proper and effective implementation.”43 Section 7(3) of
the Act makes wilful contravention or wilful failure of compliance of any regulations
made under sub-section (1) in respect of implementation of the Act,
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punishable with fine which may extend to one thousand rupees.
(9) Hurdles in implementation of MTPA 1971

Though section 3 of MTPA as explained earlier, has legalised termination of an
unwanted pregnancy in a number of situations, there are many difficulties in the
successful implementation of the provisions of the Act on various counts. According to
the Explanation clause 1 to sub-section (2) to section 3 to the Act,44 abortion is not
permitted if the pregnancy is caused as a result of an illegal sexual connection other
than rape. Hence termination of a pregnancy in such a case would be criminal and
punishable under section 312 of IPC
Section 375 of the IPC enumerates six situations under which sexual intercourse by
a man with a woman would amount to rape45 The gist of the offence consists in, (i)
having sexual intercourse with a woman against her will; or (ii) without her consent;
or (iii) when consent was obtained by putting her or any person in whom she is
interested into fear of death or physical hurt; or (iv) with her consent, when consent
was procured under a misconception of fact that the man was her husband; or (v) with
her consent, when, by reason of unsoundness of mind or intoxication, etc., she is
unable to understand the nature and consequences of that to which consent was
given; or (vi) with or without consent when she is under sixteen years of age and is
incapble of giving consent in law
According to the principles of criminal jurisprudence, a man is presumed to be
innocent, until his guilt is established in a court of law beyond reasonable doubt.
Hence the question arises, as to whether the woman subjected to rape should
postpone the termination of her pregnancy till the charge of rape is established in a
court of law and the accused is found guilty, or get the pregnancy terminated during
the pendency of the trial. In the latter case, if the man charged of rape is acquitted of
the offence, the woman would be liable to punishment under section 312, IPC for
causing illegal abortion46 And if the former course is adopted, no abortion could be
possible, because a case would take a minimum of three to four years before it is
finally disposed of by a court of law
According to sections 376B,47 376C48 and 376I)49 of (added vide Criminal Law
(Amendment) Act 43 of 1983) sexual intercourse by, (i) a public servant with a
woman in his custody, (ii) a superintendent of a jail, or remand home, etc., with any
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female inmate of such jail, remand home, or (iii) any member of the
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management or staff of a hospital with any woman employee in that hospital has been
made an offence and punishable under IPC.
Sections 376-/? to 376-Z) of IPC comprise a group of sections that create a new
category of sexual offences which do not amount to rape, because (the consent of the
victim is given in such cases under compelling circumstances.50 In lact, these offences
are committed by those persons who happen to occupy a supervisory position and
powers in the institution under their control and they take undue advantage of their
authority and position and obtain consent of the woman by inducing or seducing her
for sexual intercourse. For instance, if a senior officer has sexual intercourse with his
junior taking advantage of his authority, the case will fall under section 376-/? of IPC.
Likewise, if a sexual intercourse is committed by a superintendent of a jail, or remand
home on a lady inmate or by a management staff of a hospital on a woman in the
hospital staff, sections 376-C and section 376-Z) are attracted.
Thus if a pregnancy is caused as a result of intercourse falling under sections 376B,
376C and 316D of IPC it will not amount to have been caused by rape, that would
entitle the woman to get the pregnancy terminated under section 3 of MTPA since
consent of the woman for intercourse is implicit in the act.
Similarly, section 376A51 IPC fails to take note of a special situation where the
husband and wife are living separately under a decree of judicial separation by mutual
consent. In such a case marriage subsists in law, and if the husband has sexual
intercourse with his wife without her consent, the wile cannot go for termination of
pregnancy, should she become pregnant because sexual intercourse under such
circumstances would not be rape within the meaning of section 375 of IPC to justify
termination of pregnancy under section 3(2) of MTPA.
To obviate such a difficulty the following Explanation clause may be added to
section 3 of MTPA which would entitle a woman to get her pregnancy terminated in the
circumstances falling under section 376-A,376-B, 376-C and 376-D of IPC.
Explanation III - Where any pregnancy is alleged by the pregnant woman to have
been caused by sexual intercourse not amounting to rape, but as a result of sexual
intercourse falling under sections 376A, 376B, 376C and 376D Penal Code, 1860
the anguish caused by such pregnancy shall be presumed to constitute grave injury
to the mental health of the
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pregnant woman.
Another important point with respect to interpretation of MTPA arises as to whether

termination of pregnancy is permissible only in those cases of rape that are reported to
the police, or in all cases, whether reported or not. In India owing to the conservative
and traditional social set up more than 99 per cent of pregnancy cases occurring as a
result of rape go unreported to the police because of fear of social stigma. In the first
situation, it would be practically impossible to take advantage of the Act and get the
pregnancy terminated since hardly a case of rape is reported to the police. In the
second situation, if the provisions are liberally interpreted any woman can get her
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pregnancy terminated merely on making the statement to the doctor that it was
caused as a result of rape. This would leave the matter entirely within the discretion of
the woman to the above noted situations. It would, therefore be appropriate to legalise
induced abortion in such situations. Accordingly, the following explanation clause may
be added in section 3 of the Act legalising abortion caused as a result of sexual
offences other than rape:
Explanation IV - Where any pregnancy is alleged by the pregnant woman to have
been caused by deceiving her into believing that she is legally married to the man
concerned and makes her live as wife and husband, or by adultery52 , or by bigamy
the anguish caused by such pregnancy shall be presumed to constitute a grave
injury to the mental health of the pregnant woman.
(10) Steps towards liberalisation of abortion rules
On 10 October 1975 the Government of India, by a notification revised the rules
under MTPA on the recommendation of a workshop held at New Delhi on the
implementation of the programme of medical termination of pregnancies at the district
hospitals and at block levels organised by the World Health Organisation.
According to the revised rules, a woman desiring to abort an unwanted pregnancy
can walk into a hospital or recognised institution offering the facility and after filling in
a form, get the pregnancy terminated even without her husband's consent. The
hospital has to give to the woman a registration number and keep the form in an
envelope marked ‘secret’ and the doctor who performs the operation is not only under
no obligation to consult or notify her husband, but also is bound by the duty of
confidentiality to his patient and need not inform her spouse against her wishes.
Similarly, in UK neither does the law give a right to the husband to be consulted,
nor is the doctor under an obligation to inform the husband of termination
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of the pregnancy against the wishes of the woman.53 In other words, a husband has no
right, enforceable at law or in equity to stop his wife having, or a registered medical
practitioner performing, a legal abortion. In USA54 also the law is similar to that of
India and UK.
The MTPA is a landmark legislation in the history of social legislations in India and
will go a long way in encouraging a woman to decide for herself whether she wishes to
bear and rear the child or not. The Act along with the raising of the age of consent for
marriage, now 18 years for girls and 21 for boys, has done much for family planning
and curbing population growth. Abortion of late, is becoming increasingly popular. The
reasons for this were increased facilities for termination of pregnancy in the rural
areas, and growing awareness among the rural community that abortion is ostensibly
a healthy measure.55 An important feature of the Act is that since that abortion has
been made legal in a fairly wide range of circumstances, it has resulted in sqeezing
out’ of “back street abortionists'” with resultant higher standards of regulations and
safety as abortions are increasingly performed by qualified personnel in properly
qualified hospitals.
In fact, the Act is a milestone in the modernisation of the Indian society through
the instrumentality of law. It has a direct impact on population control and in
achieving economic and social development. In other words, the Act has played a vital
role in emancipation of women from the age old fear of abortion being considered as a
sinful and criminal act.
However, it is too early to predict the extent to which the legitimisation of abortion
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would help in contributing to a decrease in criminal abortion, protect the lives and
health of prpgnant women every year and curb population growth within the accepted
range. The effective implementation of MTPA depends on a wide variety of factors,
such as psychological, sociological, financial, technical and administrative measures
and cooperation of the people at large. Whether the people would respond and make
use of the law or allow it to remain as yet another piece of dead letter will depend on
an overall change in public outlook, the government's attitude and effort of doctors,
social workers, educators, politicians and religious leaders.
III Abortion in Pakistan and Bangladesh
In Pakistan and Bangladesh ‘causing miscarriage’ is punishable under section 312
of the respective Penal Codes, as in the case of India. the relevant provisions arc
contained in sections 312 to 316 of the Penal Codes of Pakistan and Bangladesh.56 No
serious efforts have been made to liberalise the law of abortion in these
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countries as a positive step to control the unprecedented explosion of population.
In Bangladesh the population has crossed 110 million in 1993. Bangladesh is

perhaps having the highest density of population per square kilometre in the world.
Pakistan is similarly facing a population crisis and is unable to control its rise. Though
the policy makers are aware of the need for liberalisation of the law of abortion, it is
difficult for the government in these countries to go ahead with any legislation
permitting abortion even in limited cases because of the great opposition by
fundamentalists and religious leaders.
IV Abortion in Sri Lanka
In Sri Lanka abortion is punishable under sections 303 to 307,57 of the Ceylon Penal
Code of 1885. The provisions arc similar to those contained in sections 312 to 315 of
IPC. In Sri Lanka also abortion is permissible only to save the life of the mother as in
the case of Malaysia, Pakistan and Bangladesh. It appears that no serious efforts have
been made to liberalise the law of abortion in Sri Lanka as yet.
V Abortion in Singapore
In the Republic of Singapore until 1970 the law relating to abortion was contained
in sections 312 to 315 of the Penal Code of Singapore58 as in the case of India,
Pakistan, Bangladesh, Sri Lanka and Malaysia. However, in 1970 the Abortion Act 1970
was passed in order to soften the rigours of the strict provisions of the draconian law
of miscarriage. The Act, inter alia, provides for the establishment of aboard to
authorise treatment to terminate pregnancy by a registered medical practitioner in
certain circumstances without the authority of the board. Since the life of the Act of
1970 was limited to four years only,59 in 1974 the Abortion Act of 1974 was passed
repealing the Act of 1970. In 1980 the Abortion Act 1974 was amended vide Abortion
(Amendment) Act 1980 and eventually it was named as the Termination of Pregnancy
Act.
The Termination of Pregnancy Act 1974 is a small Act consisting of 11 sections.60
The Act legalises termination of pregnancy and lays down the conditions under which
it would not attract criminal sanction Sub-section 1 to section 3 of the Act which is the
operative section states61 :
Subject to the provisions of this Act, no person shall be guilty of an offence
under the law relating to abortion by an authorised medical
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practitioner62 acting on the request of a pregnant woman and with her written consent.
The impugned section imposes only two conditions for medical termination of a
pregnancy, viz.,
(i) the termination must be performed by an authorised medical preactitioner; and
(ii) the termination must be done on the request of a pregnant woman and with her
written consent.
Sub-section 2 to section 3 of the Act of 1974 provides that except in cases provided
under section 10 of the Act63 where the treatment consists solely of the use of drugs
prescribed by an authorised medical practitioner the treatment to termination of
pregnancy must be carried out in a government hospital or an approved institution.
According to sub-section 3 to section 3 of the Act in order to avail the benefit of the
treatment to termination of pregnancy the pregnant woman must be:
(a) a citizen of Singapore or the wife of a citizen of Singapore; or
(b) the holder of, or is the wife of a holder, of an employment pass or a work permit
pass under the Immigration Act; or
(c) has been resident in Singapore for a period of at least 4 months immediately
preceding the date on which such treatment is to be carried out.
However, the above conditions shall not apply in case of any treatment to
termination of pregnancy which is immediately necessary to save the life of the
pregnant woman.
One of the important features of the Act is that section 4(1)(a) prohibits
termination of pregnancy beyond 24 weeks unless the termination is immediately
necessary to save the life or to prevent grave permanent injury to the physical or
mental health of the pregnant woman. In case of contravention of the provisions of the
Act, a person is liable on conviction to a fine upto S3, ()00 Singapore dollars or
imprisonment for a term not exceeding three years or with both64
(1) Conscientious objection to participation in treatment
Sub-section 1 to section 6 of the Act of 1974 confers the right to freedom not to
participate in the process of termination of pregnancy, if one has a conscientious
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objection.65 It grants immunity to the doctors who because of their faith and
conscientious objection65 do not want to participate in the treatment of termination of
pregnancy.
However, in case of treatment which is absolutely necessary to save the life or to

prevent grave permanent injury to the physical or mental health of a pregnant woman,
the doctor will be under a duty to participate in the treatment and will not be covered
by sub-section (a) of section 6 of the Act.66 The burden of proof of conscientious
objection in such a case will lie on the person claiming to rely on it.67
Sub-section (1) to section 7 of the Act of 1974 provided for maintaining
confidentiality of the treatment and grants impunity and privilege against desclosure
of information relating to the treatment for termination of pregnancy unless the
pregnant woman expressly gives her consent thereto for disclosure to any person. In
case of contravention of the provisions under sub-section(1) to section 7 of the Act, a
person is guilty of an offence and liable to imprisonment on conviction that may
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extend to one year, or fine upto $.2,000 Singapore dollars or with both.68
A perusal of the law of abortion in Singapore would reveal that it is one of the most
progressive legislations on the subject in as much as it gives absolute immunity and
freedom to a woman to decide about her life and to choose to bear a child or not. In
other words the Act confers on a woman the right to privacy of her life.
V Abortion in Malaysia
The law of abortion in Malaysia, as stated earlier is contained in sections 312 to 315
of the Malaysian Penal Code. Section 312 of the Code punishes causing miscarriage as
in case of section 312 of IPC. In 1989 section 312 was amended69 and an exception
clause was added in order to permit termination of pregnancy in certain limited cases,
such as when it involves risk to the life or physical or mental health of the pregnant
woman. Section 312 of the Code reads:
Causing miscarriage : Whoever voluntarily causes a woman with child to
miscarry shall be punished with imprisonment 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 for a term which may extend to seven years, and shall
also be liable to fine.
Page: 310
Exception - This section 312 does not extend to a medical practitioner registered
under the Medical Act, 1971 who terminates the pregnancy of a woman if such
medical practitioner is of the opinion, formed in good faith, that the continuance of
the pregnancy would involve risk to the life of the pregnant woman, or injury to the
mental or physical health of the pregnant woman, greater than if the pregnancy
were terminated.70
The Exception clause softens the strict provision of law of abortion. It allows
termination of pregnancy by a registered medical practitioner if he is of the opinion
formed in good faith that:
(i) the continuance of pregnancy would involve risk to the life of the pregnant
woman; or
(ii) injury to the mental or physical health of the pregnant woman.
The Exception clause does not mention anything about the time limit within which
termination of a pregnancy is allowed. It obviously means a pregnancy might be
terminated at any time until the child is born. Further the Exception clause fails to
specify the different situations under which pregnancy might be terminated under the
law as in the case of Indian and UK law on the subject.
VI Abortion in Indonesia
In Indonesia abortion is illegal and termination of a pregnancy is not permitted
under any circumstances. Even to save the life of the mother is not an excuse for
termination of a pregnancy. The Penal Code of Indonesia of 1915 in articles 346 to 349
provides for punishment for offences relating to induced abortion.
Article 346 of the Code makes a woman guilty of an offence if she with deliberate
intent causes or lets another to cause the drifting off or the death of the fruit of her
womb, and is liable on conviction to imprisonment which may extend to four years.71
Article 347 holds a person guilty of an offence, if he causes the drifting off or the death
of the fruit of the woman without her consent and is liable on conviction to a
maximum period of twelve years of imprisonment,72 and if it results in the death of the
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woman punishment may extend to imprisonment of fifteen years.73 Article 348
provides for a lesser punishment in case the drifting off or the death of the fruit of
womb takes place with the consent of the woman, which may extend to imprisonment
of five years and six months,74 and if it results in the death of the woman punishment
may extend to seven years of imprisonment.75
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Article 349 of the Code makes a physicican, midwife or pharmacist guilty of an

offence, if he or she is an accomplice to one of the crimes described in articles 347 and
348 and liable to punishment which may be enhanced to one-third of the punishment
prescribed for the offences under the respective articles and may also be deprived of
the exercise of the profession in which he or she commits the offence.
VII Abortion in Phillipines
The Revised Penal Code of Phillipines of 1932 in articles 256 to 259 has made
induced abortion punishable. Article 25676 makes intentional abortion and article 25777
unintentional abortion punishable. Article 25878 provides punishment in case of
abortion practiced by the woman herself or by her parents; and article 25979 is
attracted when abortion is practised by a physician or midwife who, taking advantage
of their scientific knowledge or skill, shall cause an abortion or assist in causing the
same. In such a case the penalty would be the same as provided under article 256 for
intentional abortion. Any pharmacist who, without the proper prescription from a
physician, shall dispense any abortive shall be liable to punishment under article 259
of the Code, for arresta mayor and a fine upto 1,000 pesos (Phillipines currency).
The Phillipines Penal Code like the Penal Code of Indonesia does not permit
termination of pregnancy even to save the life of the woman. It is perhaps because of
strong influence of Catholic church which is opposed to and does not allow abortion
under any circumstances.
VIII Abortion in United Kingdom
At common law procuring or attempting to procure termination of pregnancy before
“quickening” was not an indictable offence.80 It was only after quickening that the
abortion was punishable as an offence. By UK's first criminal abortion statute, Lord
Ellenborough's Act 1803,81 the crime of abortion was
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pushed back to commencement of the pregnancy and distinction between an abortion

before and after quickening abolished. In 1861 the Offences Against the Person Act
1861 in sections 58 and 59 made procuring or attempting to procure abortion a felony
(offence) repealing the Act of 1803.
Section 58 of the Act of 1861 (subject to Abortion Act 1967 and Human Fertilisation
and Embrology Act 1990 section 37) prohibits attempt to procure miscarriage from
any time after the conception of the child until its birth.82 The section covers two
situations, first, where a pregnant woman administers to herself any poison or noxious
thing or uses any instruments or other means to procure her own miscarriage and
second, where any one else unlawfully procures abortion whether the woman is or is
not pregnant. Punishment under the section on conviction may extend upto
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imprisonment for life.
Section 59 punishes supply or procuring of noxious drugs or instruments knowing it
to be unlawfully used for causing abortion with imprisoment which may extend upto
five years.83
Allied to the crime of miscarriage is the statutory offence—the Infant Life
(Preservation) Act 1929. The Act is aimed at protecting the destruction of child.
Section 1 of the Act as amended by the Criminal Justice Act 1948 states:
[A]ny person who, with intent to destroy the life of a child capable of being born
alive, by any wilful act causes a child to die before it has an existence independent
of its mother, shall be guilty… and shall be liable on conviction… to imprisonment
for life.
Owing to the close proximity between the offence of miscarriage (Act of 1861) and
child destruction (Act of 1929) the two offences may overlap at limes. For instance,
procuring a miscarriage so as to kill a child capable of being born alive may fall under
the Act of 1861 as well as the Act of 1929. 1 o overcome such an eventuality, sub-
section 2 to section 2 of the Act of 1929 provides that where upon the trial of any
person for, (i) the murder or manslaughter of any child,84 or (ii) infanticide,85 or (iii) an
offence under section 58 of the Offences Against the Person Act 1861, the jury are of
opinion that the person charged is not guilty of any of the offences mentioned therein,
but it is shown by the evidence that accused is guilty of the offence of child
destruction, he may be convicted accordingly.86
A seemingly notable development in the English law was the case of Rex v.
Bourne,87 in which the court apparently answered in the alfirmative (he question
whether an abortion necessary to preseve the life of the pregnant woman was
Page: 313
exempted from criminal liability under the Act of 1861 In the impugned case a girl
under fifteen, who was criminally assaulted in the most revolting circumstances,
became pregnant. Bourne, an eminent obstetrics surgeon and gynaecologist, thought
that the operation ought to be performed in view of the age of the girl and the fact
that she had been raped with great violence and so he terminated the pregnancy.
Bourne was charged under section 58 of the Offences Against the Person Act 186188
for unlawfully procuring the abortion of the girl.
While construing the provisions of section 58 of the Act of 1861, the court referred
to the Infant Life (Preservation) Act 1929 which provides punishment for child
destruction. Section 1(1) of the Act of 1929 makes an intent to destroy the life of a
child capable of being born alive89 and cause it by any wilful act to die before it has an
existence independent of its mother liable on conviction to imprisonment for life,
unless it is proved that the act which caused the death was not done in good faith for
the purpose only of preserving the life of the mother.
Justice MacNaughten who delivered the judgment observed, that though the law
with regard to procuring of an abortion under section 59 of the Act of 1861, under
which the accused was charged, did not expressly incorporate the words, i.e., “for the
purpose only of preserving the life of the mother”, they represent the common law and
were implicit by the words “unlawful” occurring in the impugned section Justice
MacNaughten accordingly, said”
[T]hose words for the purpose only of preserving the life of the mother ought to
be construed in a reasonable sense, and, if the doctor is of opinion on reasonable
grounds and with adequate knowledge, that the probable consequence of the
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continuance of the pregnancy will be to make the woman a physical or mental
wreck, the jury are quite entitled to lake the view that the doctor, who, in those
circumstances, and in that honest belief, operates, is operating for the purpose of
preserving the life of the woman.90
The judge said that, (i) the operation was done bona fide to save the life of the
mother, the defendent was entitled to an acquittal; (???) the bona fide object of
avoiding the practically certain physical or mental breakdown of the mother will afford
an excuse, (iii) if a doctor in good faith thinks it necessary ‘for the purpose of
preserving the life of the mother’, not only is he entitled to perform the operation, but
it is his duty to do so; and (;v) the burden of proving that the procurement of aboition
was not lawlul was upon the Crown. The ‘preservation of the life of the mother’, is not
confined to action taken to save her from danger but could arise where the whole
physical or mental health of the mother were endangered as depicted in the present
case.
The court further held that the phrase “for the purpose of preseiving the life of the
mother is wide and should be liberally interpreted to cover the acts that are
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dangerous to the health of the mother and will shorten the life as ‘the life depends
upon health and health may be so gravely impaired that it may result in death’. If the
doctor performs the operation terminating pregnancy under such circumstances, it
would be presumed that he acted in good faith for the purpose of preserving the life of
the mother.
Since the Crown in the impugned case failed to comply with the obligation of
discharging the burden of proving that the operation was not procured in good faith for
the purpose of preserving the life of the mother, the jury gave a verdict of acquittal.91
But if a doctoris found to have acted in bad faith, he would be liable to conviction for
procuring illegal abortion.92
The question of good faith or bad faith is essentially a question of fact. In R. v.
Smith,93 the appellant. a medical practitioner was charged with unlawfully using an
instrument to procure a miscarriage. The appellant on payment of a fee agreed to
terminate pregnancy of a women of 19 years, who wanted an abortion without
examining her internally or asking her medical history. The doctor also did not obtain
the opinion of two doctors as required. When the woman was on the operation table, it
was found that she was starling inevitable abortion; thus operation became not a
termination but a facilitating and tidying up of an inevitable abortion.
It was contended that the appellant did not act in good faith when he operated and
had formed no bona fide opinion as to the balance of risk between termination and
continuance of pregnancy as required under the law.
The Court of Appeal held that a verdict of bad faith where there is no evidence as to
professional practice and medical probabilities is often likely to be regarded as unsafe.
However, it depends upon the nature of evidence and other factors. For instance:
An opinion may be absurd professionally and yet formed in good faith;
conversely an opinion may be one which a doctor could have entertained and yet in
the particular circumstances of a case may be found either to have been formed in
bad faith or not have been formed at all.94 ”
(1) Abortion Act 1967
In course of time it was realised that the strict provision of the law of abortion
contained in sections 58 and 59 of the Offences Against the Person Act 1861 was
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doing more harm than good. The attitude of medical profession was hostile and tragic
cases continued to occur. Women who had been raped, deserted by their husbands,
and overburdened mothers living in poverty with large families failed to get a medical
abortion. Of course, (he abortions could be bought but with a heavy price. As a result
most of the women would go to back street abortionists95
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wielding a knitting needle, syringe, or stick leading to a great risk to their life. At
times unwilling mothers used dangerous methods on themselves or committed
suicide. It was also noticed that although illegal abortions were taking place in
thousands, as in the case of India before the passing of the Medical Termination of
Pregnancy Act of 1971, yet convictions were negligible. The police would not look upon
abortion as real crime.96
As these evils were beginning to be realised, a strong opinion grew that a woman
had a right to control her own fertility and that the abortion should be legalised. At the
same time a powerful religious lobby basing itself upon their “sanctity of life” was
opposed to any move for change in the law. As a compromise measure the Abortion
Act 196797 was passed which substantially liberalised the law of abortion though it did
not concede all the demands of the pro-abortionists.
The Act of 1967 has legalised the termination of pregnancy by a registered medical
practitioner under certain specified circumstances as provided under section 1 which
states:
Medical Termination of Pregnancy - (1). Subject to the provisions of this section,
a person shall not be guilty of an offence under the law relating to abortion,98 when
a pregnancy is terminated by a registered medical practitioner if two regisleted
medical practitioners arc of the opinion, formed in good faith
(a) that the continuance of the pregnancy would involve risk to the life of the
pregnant woman, or of injury to the physical or mental health of the pregnant
woman or any existing children of her family, greater than if the pregnancy were
terminated: or
(b) that there is substantial risk that if the child were born it would suffer from such
physical or mental abnormalities as to be seriously handicapped.
Thus a pregnancy may lawfully be terminated on health and eugenic grounds.
Health ground includes the health of the woman and that of existing children of the
family. Health has been defined by the World Health Organisation broadly to include,
“the state of complete mental, physical or social wellbeing, and not merely absence of
disease or infirmity”.99
In determining whether the continuance of a pregnancy would involve such risk of
injury to health as is mentioned in sub-section 1 (a) of the Act of 1967, account may
be taken of the pregnant woman's actual or reasonably torseeble
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environment.100 A wider view of the health may be taken depending upon various
factors such as, social, psychological, economic, etc., to determine the desirability of
the termination of pregnancy in a particular situation. It would, inter alia, cover cases
of over burdened mothers.101
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To bring the act of termination of pregnancy within the purview of the exception
clause to section 1(4) of the Act of 1967 the risk of injury feared from allowing the
pregnancy to continue must be “greater than if the pregnancy were terminated”.102
The Act for the first time allows the interest of the children of the family to be taken
into consideration while deciding the desirability of the termination of a pregnancy.
The protection of the interest of the children of the family would thus be a valid
ground for termination of a pregnancy.
The termination of a pregnancy on eugenic grounds is basically justified upon the
ground that the child if born would be seriously handicapped and would be a burden to
the welfare of the parents and the society at large.
An important feature of the Act of 1967 is that it does not permit termination of a
pregnancy on grounds of rape as in the case of India.103 However, the fact of rape
could influence the decision of the doctors in invoking the health grounds.104 Similarly,
the failure of any device or method used by a married couple for the purpose of
limiting the number of children cannot justify termination of a pregnancy as under the
Indian law.105 Perhaps the ground of health of the children could be invoked to
terminate unwanted pregnancy in such a situation.
As stated earlier, the Act of 1967 did not put any limitation as to the time of
termination of pregnancy. A pregnancy could be terminated at any time until the birth
of the child.
This was subject to vehement criticism by the Lane Committee106 ““and various
organisations. Accordingly, a definite upper time limit of twenty-four weeks for the
termination of pregnancy was suggested and beyond the said period it was to be
treated as unlawful.
(2) Human Fertilisation and Embroyology Act 1990
As suggested by the Lane Committee, the Human Fertilsation and Embroyology Act
1990 amended section 1 of the Abortion Act 1967 vide section 37, which reads:
(1) For paragraphs (a) and (b) of section 1(1) of the Abortion Act 1967 (grounds for
medical termination of pregnancy) there is substituted:
(a) that the pregnancy has not exceeded its twenty fourth week and that the
continuance of the pregnancy would involve risk, greater than if the pregnancy
were terminated, of injury to the physical or mental
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health of the pregnant woman or any existing children of her family;
(b) that the termination is necessary to prevent grave permanent injury to the
physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the
pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is substantial risk that if the child were born it would suffer from
such physical or mental abnormalities as to be seriously handicapped.
The amended section 1(1) of the Act which has now four sub-clauses (a) to (d) has
broadened the scope and grounds on which abortion might lawfully be obtained
besides limiting the time for termination of pregnancy to twenty-four weeks.
(3) Procedural safeguards
To safeguard the interest of the pregnant woman section 1 of the Act has provided
three procedural safeguards. Contravention of the provisions would make termination
of a pregnancy illegal and contrary to law.107 These safeguards are:
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(i) the pregnancy must be terminated by a registered medical practitioner108 ;
(ii) two registered medical practitioners must have formed opinion in good faith
that the abortion is necessary;109 and
(iii) the treatment for the termination of pregnancy must be carried out in a
National Health Service Hospital or in an approved nursing home, by the
Secretary of the State.110
However, the last two procedural safeguards do not apply where the doctors are of
the opinion formed in good faith, that the termination of a pregnancy is immediately
necessary to save the life or to prevent grave permanent injury to the physical or
mental health of the pregnant woman.111
(4) Termination of pregnancy by medical practitioners vis-a-vis nurses
In Royal College of Nursing of the United Kingdom v. Department of Health and
Social Security,112 in 1981 an important question as to legality of the role of nurses in
termination of a pregnancy by medical induction was debated before the House of
Lords. There are two stages in medical induction, the first being the insertion of
catheter by means of a pump or drip apparatus and second, the administration of
fluid. The first stage was carried out by doctors and the second by nurses under the
doctor's instructions but in his absence, although he would be on call. The causative
factor in inducing labour and thus in terminating the
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pregnancy was the administration of fluid, which was done by the nurse and not the
doctor.
The Department of Health and Social Security issued a circular to the nursing
profession stating that no offence was committed within section 1(1) of the Abortion
Act 1967 by nurses who terminated the pregnancy by medical induction. If a doctor
decided on the termination initiated it and remained responsible throughout for its
overall conduct and control. The Royal College of Nursing disputed the contention and
brought a declaration against the Department of Health and Social Security in the
court that the advice was wrong and that the act carried out by the nurses in
terminating a pregnancy by the induction method contravened the provisions of
section 1(1) of the Abortion Act of 1967.
The lower court upheld the department's contention. The college appealed to the
Court of Appeal which reversed the decision of the lower court holding that the whole
process of medical induction had to be carried out by a doctor and not merely under a
doctor's instructions if it was to come under section 1(1) of the Act of 1967. The
department appealed to the House of Lords against the decision.
The House of Lords by a majority of three to two set aside the unanimous verdict of
the Court of Appeal and restored the verdict of the lower court. The court held that if a
doctor prescribed the treatment for the termination of a pregnancy, remained in
charge and accepted responsibility throughout, and the treatment was carried out in
accordance with his directions the pregnancy was terminated by ‘a registered medical
practitioner’ for the purposes of section 1(1) of the Act of 1967, and any person taking
part in the termination was entitled to the protection afforded under the Act. But if the
doctor were to direct the whole procedure by correspondence or over telcphone the
operation would presumably be unlawful.
Section 4(1) of the Act of 1967 gives the right to a person to object and refuse to
participate in any treatment relating to termination of a prcgnancy, if his conscience
does not permit him to do so as in the case of Singapore.113 However, one cannot
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refuse to participate in treatment which is necessary to save the life or to prevent
grave injury to the physical or mental health of the pregnant woman.114 A secretary or
clerk however, will not get the benefit of section 4(1) of the Act, if he or she refuses to
type a letter arranging an abortion as the act docs not amount to counselling or
procuring the termination of a pregnancy.115
IX Abortion in Ireland
Abortion is illegal in Ireland.116 The unlawful killing of an unborn child is a criminal
offence under the provisions of sections 58117 and 59118 of the Offences Against the
Person Act 1861 carrying a maximium punishment of penal servitude
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for life. The protection given to the unborn child applies from the date of conception.119
In a recent case Attorney General of Ireland v. X,120 which evoked considerable

debate in Ireland on the subject of abortion, in public and legal experts, a vexed
question of law and fact as regards the right to life of the unborn and right to the life
of the mother was involved. The facts of the case are very pathetic. A fourteen year old
school girl who discovered in January 1992 that she was pregnant as the result of an
alleged rape by the father of her friend in the month of December 1991 was not
permitted under the Irish law to get her pregnancy terminated. The girl and her
patents accordingly decided to obtain an abortion in UK. But in the meantime the
Attorney General obtained an interim injunction in the High Court restraining the girl
and her parents from, (i) interfering with the right to life of the unborn; (ii) leaving
the jurisdiction for nine months; and (iii) procuring or arranging an abortion within or
outside the country.
Rejecting the defence plea that psychological damage to the girl of carrying a child
would be considerable and that the damage to her mental health would be
devastating, if the termination of pregnancy is not allowed, the High Court granted
permanent injuction. A reference was made to sub-section 3 to section 3 of article 40
of the Constitution to vindicate the right to life of the unborn. The said subsection
says:
The State acknowledge the right to life of the unborn and with regard to the
equal right to life of the mother, guaranteed in its laws to respect, and as far as
practicable by its laws to defend and vindicate that right.121
While referring to the above constitutional provisions the court observed that the
right to life of the unborn is guaranteed under the Constitution and that it was the
duty of the various organs of the government including judiciary to defend and
vindicate that right. Judging the magnitude of the danger to the child and danger that
exists to the life of the mother. the court said:
[T]he risk that the defendant may take her own life if an order is made
(prohibiting termination of pregnancy) is much less and is of a different order of
magnitude than the certainty that the life of the unborn will be terminated if the
order is not made….(T)he young girl has the benefit of the love and care and
support of devoted parents who will help her through the difficult months ahead….
(H)aving had the regard to the rights of the mother in this case, the court's duty to
protect the life of the unborn requires it to make the order sought.122
However, the Supreme Court of Ireland by a majority of 4 to 1 allowed the appeal
against the order of the High Court and discharged the injunction issued
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against the defendants. The court observed that the Constitution requires that its
provisions be interpreted harmoniously and that the rights thereby given to the
unborn and the mother be interpreted in concert. Since there was a real and
substantial risk to the life of the mother by self-destruction as depicted by her suicidal
tendency, which can only be avoided by termination of her pregnancy, the court
observed that the defendant is permitted to obtain abortion in Ireland.123
It may however be noted that the judgment of the Supreme Court setting out its
reasons for lifting the injunctions granted by the High Court have not set the law of
abortion in Ireland in a satisfactory state. The law is in a most unsatisfactory state of
uncertainty as before.124 It is high time a suitable legislation be enacted in this
important area of social concern effecting the right of the woman to privacy and
freedom to decide to bear a child or not124
X Abortion in USA
The law of abortion in USA in effect in all but a few states until the mid-nineteenth
century was the pre-existing Fnglish common law. Gradually, in the middle and late
nineteenth century the quickening distinction (i.e., woman with child and woman
quick with child) disappeared from the statutory law of most of the states and the
degree of the offence and the penalties were increased. By the end of the 1950” s a
large majority of the states banned abortions, unless done to save or preserve the life
of the mother.125
In Jane Roe v. Henry Wade,126 Jane Roe brought a class action challenging the
constitutionality of the Texas criminal abortion laws, restricting, procuring or
attempting to procure abortion on medical advice for the purpose of saving the
mother's life.127 The petitioner pleaded that the state criminal abortion laws, were
unconstitutionally vague and that they abridged her rights of personal privacy,
protected by the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the USA
Constitution.
The State of Texas on the other hand, argued that the state's determination to
recognise and protect parental life from and alter conception constitutes “a compelling
state interest” and that the foetus is a “person” within the language and meaning of
the “due process clause of the Fourteenth Amendment to the United State's
Constitution”.
The Supreme Court of USA refrained from resolving the difficult question of when
life begins and said that when those trained in the respective disciplines of
Page: 321
medicine, philosophy and theology are unable to arrive at any consensus, the judiciary
is not in a position to speculate as to the answer. As regards the state's important and
legitimate interest in the health of the mother, the court said:
[I]n the light of present medical knowledge [“the compelling point”] is at

approximately the end of the first trimester year…that until the end of the first
trimester mortality in abortion may be less than mortality in abortion in normal
child birth. It follows that, from and after this point, a State may regulate the
abortion procedure to the extent that the regulation reasonably relates to the
preservation and protection of maternal health. Examples of permissible state
regulation in this are requirements as to the qualifications of the person who is to
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-
perform the abortion; as to the facility in which the prodceure is to be performed,
that is, whether it must be a hospital or may be clinic…128
Measured against these standards the courts held that the Texas criminal abortion
statute restricting legal abortion without regard to, (i) pregnancy stage, and (ii) other
interest involved, is violative of the due process clause of the Fourteenth Amendment
to the United States' Constitution, which protects against states' action the right to
privacy, including a woman's qualified right to terminate her pregnancy.
The recent case of Planned Parenthood of South Eastern Pennsylvania v. Casey,129
handed over by the Supreme Court of USA on 30 June 1992 upholding most aspects of
restrictive Pennsylvania Abortion Control Act of 1982 has aroused a lot of controversy.
At issue were five provisions of the Pennsylvania Abortion Control Act 1982, which
were added by the 1988 and 1989 amendments to the Act. The said provisions, (i)
require that a woman seeking an abortion must give her informed consent prior to the
procedure, and specified that she be provided with certain informations at least 24
hours before the abortion is performed;130 (ii) mandate the informed consent of one
parent for a minor (expectant mother) to obtain an abortion, but provides a judicial
bypass process131 ; (iii) command that, unless certain exceptions apply, a married
woman seeking an abortion must sign a statement indicating that she has notified her
husband;132 (iv) define a “medical emergency” that will excuse compliance with the
foregoing requirements;133 and (v) impose certain reporting requirements on facilities
providing abortion services.
The five abortion clinics and a physician representing himself and a class of doctors
who provided abortion services, filed a suit seeking a declaratory judgment that each
of the provisions, namely, informed consent, parental consent, spousal notice,
reporting requirements and public disclosure of clinics were violative of
Page: 322
the Fourteenth Amendment of the United. States Constitution. 134
The district court held all the provisions unconstitutional and granted an injunction
restraining their enforcements. The Court of Appeal affirmed in part and reversed in
part the Amendments, striking down the husband notification provison but upholding
the others.
The Supreme Court of USA perhaps in one of the most emotional and politically
explosive cases in years, by a majority of 5 to 4 affirmed the Court of Appeal's verdict
and refused to discard its 19 years landmark decision in Roe v. Wade,135 that made
abortion legal as law of the land.
While the conservative dominated court controlled by justices chosen by Bush and
Reagan, the former Presidents of USA, upheld the women's limited right to abortion
recognised by Roe, it also sought to accommodate by a bench of 7 to 2 the state's
interest in potential life and said restriction could be allowed as long as they do not
place an “undue burden on a woman's right.” The court accordingly upheld most parts
of the controversial Pennsyania law that make it more difficult for a woman to obtain
an abortion.136
The Pennsylvania law requires, (i) a 24 hour waiting period; (ii) approval for minors
by a parent or judge; (iii) doctor's telling women about foetal development and
alternatives, such as, adoption; (iv) detailed reports by doctors to the government on
each abortion performed; and (v) pre-abortion notification of the husband. The court
only struck down the husband notification provision as undue burden and approved
the rest of the provisions. Thus the Supreme Court allows the states to sharply restrict
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-
but not outlaw abortions.
XI Conclusion
A careful persual of the different countries would reveal that the countries are
divided on the issue. Some of the countries permit abortion freely, others permit with
limitations and some do not permit at all. The difference in approach is perhaps
because of the strong feelings and attitude of the people, influence of religion and
various other social, economic, psychological and moral factors, etc., that influence the
state to allow or not to allow abortion or to permit or not to permit abortion with
qualifications.
The countries under the study might be classified into the following four categories:
First, countries that do not permit abortion under any circumstances are
Indonesia,137 Phillippines138 and Ireland,139 where termination of pregnancy is illegal
and punishable under the law.
Page: 323
Second, countries like Bangladesh,140 Pakistan,141 Sri Lanka,142 and Malaysia143

permit abortion only to save the life of the mother.
Third, countries like India144 UK145 and USA146 permit induced abortion under
specified circumstances as provided under the abortion legislation of the concerned
country.
Fourth, countries like Singapore147 which permit abortion at the discretion of the
woman with no restriction of any sort except that it should be performed by a
registered medical practitioner in a hospital or clinic approved by the government.
Autonomy and independence of a woman is directly as well as closely related to her
ability to play a role outside home. The inability to decide freely and responsibly on the
spacing of children has, in turn, deprived many women of the advantages of health,
education, employment and their roles in family, public and cultural life on equal
footing with men as agreed in the United Nations Conference on Population and
Development held at Cairo (Egypt) in September 1994. The right and opportunity to
women to fully participate in development is an element of human dignity and respect
recognised in a number of international human rights agreements and covenents.
At the same time the state's interest in health protection and the existence of a
“potential of independent human existence” justifies limited regulation, but not
absolute prohibition.
Perhaps, it would be desirable to have a balanced and pragmatic approach on this
important issue. Abortion may be permitted in cases of rape, sexual offences and
when the life of the women is in danger on medical or eugenic grounds, and to limit
the number of children. However, it should not be permitted alter twenty-four weeks
of pregnancy when the child has become viable and is capable of being born alive
except of course, where the life of the woman is in danger.
———
* BSc L.LM (Alld), PhD (Lond.) IRAS (Lond.) Professor Faculty of Law National University of Malaysia Malaysia.
Professor and Former Head Post-Graduate Depattment of law. Utkal University, Bhubaneswar.
1 R.M. Jhala and V.B. Raju. Medical Jurisprudence, 426-X (5th ed.n 1990).
2
Queen Empress v. Ademma, (1886) I.L.R. 9 Mad. 369. Glanville William's. “The Law of Abortion: Current Legal
Problems”, vol. 5, pp. 128. 138 (1952). In ancient, and patticulatly classical culture any interruption of
pregnancy was viewed with all seriousness. and was an offence punishable under the law.
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-
3 Paul E.W. and Schaa P., “Abortion and the Law in 1980”, 25 Nyl. Sch. L. Rev. 497, 500-2 (1980); P. Thomas,
Indian Women Through Ages (1964). Mahabharata. a great epre of the time, depicts the Hindu widow as letting
a woman's ritu (fertile period) go waste was a sin tantamount to embryo murder; Kamala Mankekar, Abortion: A
Social Dilemma 24 (1973).
4 See, Indian Medical Termination of Pregnancy Act 1971, S. 3 : Lnglish Abortion Act 1967, S. 1(1) (2)-
5
Rex v. Bourne., (1939) 1 KB 687 : [1938] 3 All E.R. 615-21.
6 Pakistan Penal Code. Ss. 312-316.
7 Bangladesh Penal Code. Ss. 312-316.
8
Penal Code of Ceylon, Ss. 303-307.
9 Penal Code of Malaysia, Ss. 312-116.
10 Penal Code of Singapore. Ss. 312-316.
11
Modi, Medical Junsprudence 325.
12Supra note 2. Sarmattudnga v. Government of Mysore., (1935) 13 Mys. L.J. 69. See. K.D. Gaur Criminal Law
Cases and Materials 499-504 (1985) for a detailed discussion on the subject.
13 (1873) 19 WR (Cr) 32.
14
(1958) 24 MIJ 159 (C.A. Malaysia). Penal Codes of India. Pakistan. Bangladesh. Malaysia and Singapore in S.
511 provide punishment for attempting to commit offenees punishable with imprisonment for life or other
imprisonment.
15 1933 SCC Online Cal 153 : A.I.R. 1932 Cal. 893.
16 1954 SCC Online kar 30 : A.I.R. 1955 Mys. 27.
17
Ibid. at 29.
18Benda, “The Impact of Constitional Law on the Protection ot Unborn Human Life : Some Comparative Remarks”,
6 Human Rights 223 at 234-5 (1977)
19Penal Code S. 52. says, “nothing is said to be or believed in ‘good faith’ which is done or believed without the
due case and attention”. See. Royal College of Nursing v. Deptt. of Health and Social Security., (1981) AC 800 :
(1981) 2 WLR 279 : [1981] 1 All F..R 545 (III.).
20
See. Rex v. Bonnie, supra note 5. Held, all therapeutic abortions are lawful. Reg. v. Smith, (1973) 1 WLR 1510
(2) : [1974] 1 All E.R. 376. D.S. David, “The Law of Abortion and Necessity.” L.R. 126 (1938).
21
See, Medical Termination of Pergnancy Act, 1971. S. 3 for grounds of termination of pregnancy.
22See, K.P. Bahadur, Population Crists in India 165-9 (1977): 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 632-3 (1974): see. Arnold E. Michel. “Abortion and International Law”, 22 J. Fam. L.
24 (1982).
23
Asit K. Bose. “Abortion in India: A Legal Study”, 16 JILI 53 (1974).
24
Penal Code, 1860. S. 317, makes exposure and abandonment of a child under 12 years, by parent or persons
having care of it punishable with imprisonment of either description which may extend to seven years, or with
fine. or with both; and S. 318 prescribes punishment for concealment of birth by secret disposal of dead body
with imprisonment of either description for a term which may extend to two years, or with fine or with both. In
UK the Infant Life (Preservation) Act, 1929 punishes child destruction and Infanticide Act, 1938 provides
punishment for causing death of a child under 12 months of age.
25K.N. Rao, “Abortion and Family Planning”, International Conference on Family Planning, 12-3-1972-16-3-1972,
New Delhi.
26
Bahadur v. Emperor., A.I.R. 1949 Cal. 60.
27Gandhian Institute of Rural Health and Planning in the State of Tamil Nadu estimated that out of every 100
conceptions. 25 were abortions, 15 induced and 10. spontaneous.
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-
28 Ministry of Information and Broadcasting, Govt. of India, INDIA 1993: A Reference Manual 7.
29 B.B.C. World Service Broadcast dt. 11-7-1994 on World Population Day.
30 See. Indian Express 19-10-1992, p. 8.
31Supra note 28 at 215. India was partitioned in 1947 by the British into (present) India and West and East
Pakistan. East Pakistan later separated from West Pakistan and is now Bangladesh.
32 Ibid
33 See. Savithri Chattopadhya, “Medical Termination of Pregnancy Act, 1971 : A Study of the Legislative
Process”. 16 .J.I.I.I. 549 at 563-64(1974).
34Hoe v. Wade, 1973 SCC Online USSC 20 : 35 L Ed 2d 147 : 93 S Ct 705 : 410 US 113 (1973); Doe v. Bolton,
35 L Ed 2d 201 : 93 S Ct 739 : 410 US 179 (1973). Planned Parenthood v. Cavey, 120 L Ed 2d 683 : Richard
Thornburgh v. American College of Obstetricions and Gynaecologists., 1986 SCC Online US SC 126 : 90 L Ed 2d
779 : 106 S Ct 2169 : 476 US 747 (1986); Bruggeeman and Sehedten v. Federal Republic of Getmany, (1980) 3
E.H.R.R. 408.
35 H.L. v. Scott. Matheson, 1981 SCC Online US SC 58 : 67 L Ed 2d 338 : 101 S Ct 1165 : 450 US 398 (1981).
36
See, Gazette of India, 17-11-1969. pt. II S. 2. p. 880 for statement of objects and reasons of the M.T.P. Bill,
1970.
37
See, M.T.P.A. 1971, S. 2(d).
38 Medical Termination of Pregnancy Act, 1971. S. 3(4).
39
Ibid. Ss. 4(a) and (b). The programmes of Family Welfare are implemented through state governments with
cent per cent Cential Government Assistance.
40
Id. S. 5.
41 See. S. 8. M.T.P.A. 1971.
42 Supra note 5.
43
The Federal Government in exercise ot the powers confened under S. 6 of M.I.P.A, 1971 has enacted the
Medical Termination of Pregnancy Rules, 1972 which came into operation on 1-4-1972.
44 See. M.T.P.A. 1971. S. 3 (2), Explanation 1.
45 S. 375 ot the Penal Code, 1860 was amended in 1983 vide the Cnmnal Law (Amendment) Act, 1983.
46In such a situation the doctor procunng the aboition would also he guilty ol causing miscariage under S. 312.
IPC
47 S. 376ft. IPC piovides punishment for intercourse by a public serant with a woman in his custody.
48S. 376C. IPC deals with intercourse by the superintendent of a jail and remand home. etc.. with any female
inmate ol such institutions.
49S. 376D. IPC makes intercourse by any member ol the management staff of a hospital with a woman in that
hospital punishable.
50 See. K.D. Gaur. A Text-book on the Penal Code, 1860 539-41 (1992)
51S. 376-A, IPC makes inteicourse by a man with his wife dining judicial separation punishable with imprisonment
up to 2 years and fine.
However according to Penal Code of Malaysia (F.M S. Cap. 4s) Explanation 1 to S. 375 “A woman
(a) living separately from her husband under a decree of judicial sepatation or a decree nisi not made
absolute; or
(b) who has obtained an iniunction restraining her husband from having sexual intercourse with her shall be
deemed not to be his wife for the purpose ot this section ”
52 IPC, S. 497 prescribes punishment for adultery which may extend to imprisonment of either description for a
term of five years, or with fine or with both. In such a case the wife shall not be punishable as an abetter. In
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-
this regard, S. 497 of Jammu and Kashmir Stale Ranbir Penal Code 1932 is more progressive. It makes an errant
wife also punishable alone with her paramour. In Malaysia and Singapore adultery is not an offence under the
Penal Code. Of course, under Sharia law adultery is punishable.
53See. English Abortion Act, 1967, S. (1)(c). Paton v. Bristish Pregnency Advisory Services Trustees, (1978) QB
276 : (1978) 3 WLR 687 : (1978) 2 All ER 987; see. D.C.A. Bradley. “Woman Right to Choose.” 4 Mod. L.R. 367 at
370 (1978): Argvll v. Argyll., (1965) 2 WLR 790 : [1965] 1 All E.R. 611.
54 Planned Parenthood v. Casey, 120 L Ed 2d 683 (1992).
55See. supra note 28 at 215-21. See also. D.C. Pandey “Some Inhibiting Factors in the Implementation of the
Medical Termination of Pregnancy Act, 1971: Study ol Accountability”. 16 .JILI 660 (1974).
56Pakistan Penal Code and Bangladesh Penal Code have incorpouted the provisions of the Penal Code, 1860
dealing with causing miscarriage. See. supra, p 294 dealing with causing miscairiage: an offence under the Penal
Code.
57
Penal Code of Ceylon, 1885 is, based on the Penal Code, 1860. S. 303 provides punishment for cau. sing
miscaniage; S. 304 for causing miscarriage without the consent of the woman: S. 305 punishes when death is
caused by an act done with intent to cause miscarriage: and S. 307 deals with causing death of a quick unborn
child by an act amounting to culpable homicide. S. 306 holds a person guilty for an act done with intent to
prevent a child being bom alive or to cause it to die after bitth.
58 Abortion Act, 1970. S. 2.
59 Ibid. S. 16(1). The Act consisted of 16 ss.
60 The Termination of Pregnancy Act, 1974 was amended by the Act of 1980.
61 Abortion Act, 1967 S. 2 “Law Relating to Abortion” means Ss. 312-315 of the Singapore Penal Code.
62 Ibid.. S. 2. “Medical Pracitioner” means any person authottsed under the Medical Registiation Act.
63 Ibid., S. 10 confers relief from ceitain restrictions where termination of pregnancy.) consists solely of drugs.
64 Ibid.. S. 3(4).
65 Ibid., S. 6(1), “…no person shall be under any duty whether by contract or by any statutory or legal
requirement to participate in any treatment to terminate a pregnane) authonzed by this Act to which he has a
conscientious objection.”
66 Ibid. S. 6(3).
67 Ibid., S. 6(2).
68 Ibid., S. 7(2).
69
S. 5 (a) “if such miscarriage be not caused in good faith lot the put pose of saving the life of the woman.” was
deleted from S. 312 of the Malaysian Penal Code with ettect from 5-5-1989.
70Exception clause was added in S. 312 of the Malaysian Penal Code vide Act A 727/89 S. 9(a) with effect from
5-5-1989.
71 Penal Code of Indonesia, Art. 346.
72 Ibid., Art. 347(1)
73 Ibid., Art. 347 (2).
74 Ibid., Art. 348(1).
75 Ibid., Art. 348 (2).

76 Art. 256—International abortion: Any person who shall intentionally cause an abortion shall suffer:
(1) The penalty of reclusion temporal, if he shall use any violence upon the person of the pregnant at
woman.
(2) The penalty of prison mayor, if without using violence, he shall act without the consent of the woman.
(3) The penally of prison correctional in its medium and maximum penods, if the woman shall have consented.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
77Art. 257—Unmtentional abortion: The penalty of prison conectional in its minimum and medium periods shall he
imposed upon any person who shall cause an abortion by violence, but unintentionally.
78
See, Art. 258.
79 Art. 259 provides punishment for abortion practiced by a physician or midwife and dispensing of abortives
without proper prescription.
80 1. W. Blackstone, Commentaries. 129-30: E. Coke. Institutes III 50. The common law fixed the time of
animation (vivacity), at the time of quickening when the foetus moved in the womb, an event that usually
occurs about half-way through the pregnancy (around 20th week).
81
See, Glanville Williams. Textbook of Criminal Law 250 (1970).
82 See, Offences Against the Person Act, 1861. S. 58.
83
See. Ibid. S. 59.
84
Offences Against the Poison Act S. 10 provides for trial of murder and manslaughter.
85 The Infanticide Act, 1929 ptovules tor punishment tot causing death of child under the age of twelve months.
86
Smith and Hogan. (Criminal Law 364 (6th edn 1988). See, Seaborne Davies, “the law of Abortion and
Necessity”, Mod. I R., (1938-39). 58 I.Q.R. 472; J.W.C Turner, Kenny's Outlines of Criminal UIH 197-8 (9th edn.
1966).
87
Supra note 5. Held, ail the therapevtic abotions are lawful.
88 See. supra note 84 for text of S. 58.
89 See. Infant life (Preseivation) Act 1929, s 1(2).
90
Supra note 89 at 619.
91Ibid. at 612: see, Reg v. Lobell, (1957) 1 Q.B. 547 : (1957) 2 WLR 524 : [1957] 1 All F.R. 734: Woolmington v.
D.P.P., [1935] AC 482.
92 Reg. v. Cogan, (1976) QB 217 : (1975) 3 WLR 316 : [1975] 2 All E.R. 1059.
93
Reg. v. Cogan, (1973) 1 WLR 1510 (2) : [1974] 1 All E.R. 376
94 Ibid. at 381: See, Reg v. Cooper, (1969) 1 QB 267 : (1968) 3 WLR 1225 : [1969] 1 All 1 R. MS.
95Glanville Williams, Textbook of Criminal Law 255 (1978): See, Prostaglandin Gotland Wright. “Legality of
Abortions”, Crim L.J. 347-9 (1984).
96
Ben Whitaper. The Police in Society 36-37.
97
The Act (c87 of) 1967 is a small Act consisting of seven sections The Act does not apply to Northern Ireland
vide S. 7(3) of the Act.
98 See. Abortion Act 1967, S. 6.
99
100
Supra note 100.
101 Supra note 83 at 260.
102
Supra note 100, S.1 (1)(a)
103 Medical Termination of Pregnancy Act 1971, S. 3.
104 Supra note 89.
105
Supra note 105, 5.3.
106 Cmnd. 5579. para 283 (1974), see. Smith and Hogan, Criminal Law 370 (6th edn. 1988).
107 Supra note 100, S. 5(2).
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-
108
See, Medical Act, 1983, S. 56(1) for definition of legistered medical piactitioner.
109 Supra note 100, S.I (1).
110 Ibid.. S. I(3).
111
Ibid., S. I(4).
112 (1981) AC 800 : (1981) 2 WLR 279 : [1981] 1 All E.R. 545.
113 Termination ot Pregnancy Act, 1974. S. 6.
114
Supra note 100, S. 4(2)
115
Salford Health Authority. exp.. The Times. 5-1-1988 C.A. (Civ Dtc).
116
Abortion Act, 1967, S. 7(3).
117
See, supra note 84 for text of S. 58.
118
See supra note 85 for text of S. 59.
119
Attorney General (SPVC) v. Open Door Counselling Ltd., (1988) I.R. 593 at 598.
120
(1992) 1 I.R. 1; The Times, 7-3-1992 (Lond.).
121 Art, 40(3) (3) was added vide Eighth Amendment to the Constitution in 1983.
122
123 Supra note 121 at 55.
124See, “Democracy and Distrust: Abortion Law in Iieland”. Irish Low 57 (1992): James Kingston and Anthony
Whelan, “The Protection ol Unborn in Three Legal Orders-Patt-I. Part-II. Part-III, Irish Law Times 91-6. 104-8:
and 166-70:279-283 (1992). Roderick F O' Hanlon. “The Attorney General v. X; Reg. v. Dudley and Stephens
Reconsidered. Irish law Times April (1992) p 86; Mel Cousin, “Abortion and E.C. Law on Social Security for Pel
son moving within the Community” Low Times 244 (1993).
125See, Comment, “A Survey of the Present Statutory Case I aw On Aboition The Contiadictions and the
Problems”, UIIF 177 (1979).
126 See, 1973 SCC Online US SC 20 : 93 S ct 705 : 410 US 113 (1973)
127 S. Texas criminal law in Arts. 1191 to 1196 lays down the law relating to criminal aboition.
128See, supra note 128 at 163. See, Mary Doe v. Arthur K. Bolton., 1973 SCC Online US SC 21 : 35 L Ed 2d
201 : 93 S Ct 730 : 410 US 179 (1973).
129 (1992) SCC Online US SC 102 : 505 US 833 (1992).
130 Pennsylvania Aboition Control Act 1982. S. 3205.
131 Ibid., S. 3206.
132 Ibid., S. 3209.
133
Ibid., S. 3203.
134 Ibid., Ss. 3207(b), 3214(A). and 3214(f)
135 See, the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
136Supra note 128; see. William Webster v. Reproductive Health Seniles, 1989 SCC Online US SC 155 : 106 L Ed
2d 410 : 109 S Ct 3040 : 492 US 490 (1989) ; Akron v. Akron City of Centre for Reproductive Health, 1983 SCC
Online USSC 124 : 76 L Ed 2d 687 : 103 S Ct 2481 : 462 US 416 (1983); Richard Thornburgh v. American
College of Obstetricians and Gynaecologists., 1986 SCC Online US SC 126 : 90 L Ed 2d 779 : 106 S Ct 2169 :
462 US 416 (1983); Jane Hodgson v. Minnesota, 1990 SCC Online US SC 126 : 111 L Ed 2d 344 : 110 S Ct
2926 : 497 US 417 (1990).
137
Penal Code of Indonesia, Arts. 346-9.
138 Penal Code of Phiilipines, Arts. 256-9.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
139 Abortion Act S. 7(2).

140 Bangladesh Penal Code, S. 312.
141 Pakistan Penal Code, S. 312.
142 Penal Code of Ceylon, S. 303.

143 Malaysia Penal Code, exception to S. 312.
144
Medical Termination of Pregnancy Act 1971, S. 3.
145 Abortion Act 1967, S. (1).
146
Jane Roe v. Henry Wade, 1973 SCC Online US SC 20 : 35 L Ed 2d 174 : 93 S Ct 705 : 410 U S. 113 (1973) at
139; see, supra notes 132. 138.
147
Termination of Pregnancy Act (Ch. 324) S. 3(1).
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37 JILI (1995) 293

Abortion and the Law in Countries of Indian Subcontinent, Asean Region,

ABORTION AND THE LAW IN COUNTRIES OF INDIAN SUBCONTINENT, ASEAN REGION,

purpose of saving the life of the woman.

(2) Miscarriage: meaning

(5) Inadequacy of law to protect illegal abortions

There was an unprecedented uneasiness in the Ministry of Health and Family

The committee submitted a comprehensive report suggesting various situations

the pertinent clause on the subject states:

[A] pregnancy may be terminated by a registered medical practitioner:

punishable with fine which may extend to one thousand rupees.

(9) Hurdles in implementation of MTPA 1971

Another important point with respect to interpretation of MTPA arises as to whether

countries as a positive step to control the unprecedented explosion of population.

In Bangladesh the population has crossed 110 million in 1993. Bangladesh is

However, in case of treatment which is absolutely necessary to save the life or to

Article 349 of the Code makes a physicican, midwife or pharmacist guilty of an

pushed back to commencement of the pregnancy and distinction between an abortion

health of the pregnant woman or any existing children of her family;

In a recent case Attorney General of Ireland v. X,120 which evoked considerable

[I]n the light of present medical knowledge [“the compelling point”] is at

the Fourteenth Amendment of the United. States Constitution. 134

Second, countries like Bangladesh,140 Pakistan,141 Sri Lanka,142 and Malaysia143

75 Ibid., Art. 348 (2).

139 Abortion Act S. 7(2).

142 Penal Code of Ceylon, S. 303.

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