The Emerging Dimensions of Medical Termination of Pregnancy Act, 1971

I. Introduction

In common parlance the word medical termination of pregnancy (“MTP”) connotes the termination of pregnancy by medical means, either through the use of drugs or by surgical procedures. In India, the Medical Termination of Pregnancy Act, 1971 (“MTP Act”) is the major legislation that governs the abortions and lawful termination of pregnancy.

The main objective behind the incorporation of this legislation is to overcome the lacunas of the earlier provisions dealing with the termination of pregnancy in India, as they were incorporated under the Penal Code, 1860 about a century ago and were highly dependent on the British laws as a subject-matter.¹ It was also observed that these provisions were very strict in their nature, the abortion was made a crime for which the mother, as well as the abortionist could be punished ,however, the only instance wherein the abortion has been induced is in order to save the life of the mother. Therefore, the MTP Act, 1971 has been incorporated as a separate legislation, wherein certain conditions and circumstances has been laid down under which an abortion can be lawfully performed in India.

II. Overview of the  MTP Act, 1971

MTP Act, 1971 is an Act that came to be introduced in India in pursuance of the recommendations made by the Shantilal Shah Committee,² which was constituted in the year 1966. The Preamble of the MTP Act clearly states that the pregnancies can only be terminated up by the registered medical practitioners and under Section 3 of the Act there are certain conditions laid down under which an abortion can be performed, including the stage of pregnancy and the reason for termination.

The Act came into force on 1-4-1972 and was amended in the years 2002 and 2020, wherein a pregnancy beyond 12 weeks of the gestation period cannot be terminated based on an opinion designed in good faith.³ However, in the event of more than 12 weeks of the gestation period of pregnancy, but less than 20 weeks, termination requires the opinion of two medical practitioners which must be satisfied about either of the grounds as laid down under Section 3 of the MTP Act, 1971 in order to terminate a pregnancy.

According to the Act, an abortion can be performed up to 20 weeks of pregnancy, and beyond 20 weeks, it can only be performed if the continuation of the pregnancy poses a risk to the life of the woman or if there is a substantial risk of serious injury to the physical or mental health of the woman.⁴

The main intent behind the formulation of this Act is to help the women who are the victims of sexual assault, who become pregnant as a result of failed contraception or of any birth control device, whose physical and/or mental health were endangered by continuing the pregnancy or where there is a risk of crippled children and there are chances of the birth of a potentially handicapped or malformed child.⁵ The Act also deals with the pregnancies in “lunatics” or where the woman is a “minor” wherein, the consent of a guardian is considered to be valid instead of the women herself.⁶

III. Essentials of Section 3  of the  MTP Act, 1971

Section 3 of the MTP Act provides for the termination of pregnancy of a woman where the gestation period of the pregnancy is less than 20 weeks, or where it exceeds 20 weeks but does not exceed 24 weeks and possess a threat to the life of pregnant woman and there is grave danger to her physical and mental health.⁷

Further, the Section lays down the procedure for the termination of pregnancy which says that the procedure involves seeking the opinion of two registered medical practitioners who are authorised to perform abortions and are satisfied that the continuance of such pregnancy would either involve a risk to the life of the women or cause grave injury to her physical health or grave injury to her mental health. In case of an emergency, the opinion of only one practitioner is also allowed as per Section 5(1).⁸ The abortion under the Act can be performed either by using drugs or by a surgical procedure, depending on the stage of pregnancy and the medical condition of the woman. The Act further lays down certain restrictions on the termination of pregnancy, including the requirement for the woman to give her written consent under Section 3(4)(b) for the procedure and the requirement for the medical practitioner to follow certain protocols and procedures to ensure the safety of the woman.

IV. Evolution of Right to Abortion in India and Around the World

The United States decision of Roe v. Wade,⁹ is termed to be the milestone judgment on the abortion rights of the women, wherein the Supreme Court of United States for the first time has recognised abortion right as a constitutional right to choose an inseparable right enumerated under the right to privacy. However, the abortion law in India was not incorporated as a right for women like the case was in the United States, and rather it was introduced by a Commission headed by Shantilal Shah.¹⁰

The Indian abortion law i.e. the MTP Act is majorly based on the UK Abortion Act, 1967 wherein, an abortion can only be done on the consent of medical practitioners. Thus, India has adopted a sanctioned induced abortion mechanism under the MTP Act of 1971, wherein a woman can lawfully avail abortion if the pregnancy carries the risk of grave physical injury or endangers her mental health or it is a result from a contraceptive failure in a married woman or from rape or is likely to result in the birth of a child with physical or mental abnormalities, then under such circumstance a women who has attained the majority and within gestation period of 24 weeks accompanied by the opinion of the medical practitioners can terminate her pregnancy and there is no spousal consent required.¹¹

However, the situation has come upside down after verdict of Planned Parenthood of Southeastern Pennsylvania v. Casey,¹² wherein, the United States Supreme Court with a majority of 6:3 judgment has overturned the 50-year-old Roe v. Wade¹³ judgment by stating that the Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision of the United States.

Furthermore, there was also a huge controversy all over the world relating to the legal rights of an unborn fetus. The question that came before the court is whether the fetus can be granted the status of a human being from its very inception and conferred the status of a person or not.

Majority of the world legal systems have recognised fetus as a part of a woman and have no rights as an entity separate from her.¹⁴ Also various studies have contended that fetus would develop interests only when it can live on its own, which happens only after the third trimester¹⁵ and hence, under the MTP Act the capping of 24 weeks of gestation period has been incorporated.

All above this, there was a fundamental question, as whether the fetus right to life, if any, exists will prevail or the rights guaranteed to a pregnant girl to safeguards her health, life, and personal liberty in the interests of her pregnancy that jeopardises her bodily injury or even life-threating and where pregnancy is a consequence of rape or incest. The Supreme Court of India in Nand Kishore Sharma v. Union of India,¹⁶ has made it very clear that the court has prioritised the health and life of women in India and further stated that, there can be no question of weighing the rights of the unborn and the woman.

In addition to all this the World Health Organisation has also opined that countries who permit aborticide on the grounds of health should interpret “health” according to the definition given by WHO i.e. “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.¹⁷

V. Lacunas of the Indian  MTP Act, 1971

There are certain loopholes under the MTP Act and very first of it is that the Act lacks to define the basic terminologies like “medical termination of pregnancy”, “abortion” and the meaning to these terms were found from various books and other sources.

Further, the Act is discriminatory as, it distinguishes between married and unmarried women and in case of contraceptive failure the women have to prove that gestation was caused due to failure, which again in itself is against the right to privacy of a person. However, in few of the European countries like Armenia, Austria, Denmark, France, Netherlands, Norway, etc. abortions are available on request to all women till 12 weeks.¹⁸

Also, in matrimonial cases the Indian woman is not allowed to terminate pregnancy at her will, and if she does, it will amount to cruelty to her husband.¹⁹

The right which is granted to Indian women under the MTP Act, 1971 is a conditional right and does not provide a right on instinct i.e. it is a necessary condition to seek the opinion of the medical practitioner as laid down under Section 3 of the MTP Act, 1971 and then only the women can avail her right to abortion and not in other cases.²⁰

The Constitution of India under Article 21 has enumerated right to safe abortion as a fundamental right of every women in India and in consonance of it has codified the MTP Act, Rules and Regulations. Thus, anybody who inflicts, encourages, or condones unsafe abortion in contravention of the codified law is said to have committed a crime in India. However, nearly 97% of unsafe abortions take place in developing countries and about 8% of maternal deaths in India are attributed to unsafe abortions.²¹

These are few but major lacunas in safeguarding the right of abortion available to women.

VI. Emerging Dimensions of the Act through Judicial Interpretation

There are numerous judgments pronounced by Indian judiciary for safeguarding the rights relating to abortions in India. However, here we will be focusing only on the recent case laws where the judiciary has evolved a new dimension by going beyond the literal interpretation of the MTP Act.

In a recent case X v. State (NCT of Delhi)²² the Supreme Court has come up with an extended scope of MTP Act to those wives, who have conceived out of forced sex by their husbands, which means that the definition of rape will include “marital rape” as well for the purpose of the MTP Act and Rules. Also, Court while interpreting the term ‘women’ has included persons who identified as any other gender, but required access to reproductive healthcare and has stated that the right to reproductive choice is an essential facet of Article 21 of the Constitution and it is an obligation of the State to protect it. Furthermore, the Court has also contended that doctors are not obliged to disclose the identity of any minor girl seeking abortion in the information provided to police.

This has been reiterated by Justice Prathiba M. Singh, in N. v. Secy. Health and Family Welfare Deptt.²³ wherein the court has discussed two contradicting provisions i.e. Section 19(1) of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) which mandate to report the child sexual offences to the special juvenile police unit or the local police but in contrary to it Section 3 of the MTP Act where it is allowed for a married or unmarried minor girls between the age of 16 to 18 years to terminate their unwanted pregnancy, that has arose out of a consensual relationship. The Court under this case has “directed the Delhi Government to issue a circular directing that the identity of a minor girl, who is seeking medical termination of her pregnancy, and her family shall not be disclosed in the report prepared by registered medical practitioners (RMP) to the police”.

Further, in a recent verdict by Justice Swarana Kanta Sharma, the Delhi High Court has observed that denying a woman the right to medical termination of pregnancy in sexual assault cases and imposing the responsibility of motherhood on her, would amount to “denying her the human right to live with dignity” as she has a right in relation to her body including the right to say “yes or no” to being a mother.²⁴ The Court in this case has also emphasised on both aspects i.e. physical injury and mental agony caused to a pregnant woman.

In another verdict Kerala High Court has evolved a new aspect and has contended that strain in marriage can also constitute a valid ground to seek abortion of pregnancy within the gestation period of pregnancy up to 24 weeks, as the drastic changes in the matrimonial life of a pregnant woman is sufficient ground to fulfil the condition of “change of her marital status” in Rule 3-B of the Medical Termination of Pregnancy Rules, 2003. The Court further held that even though she might not be legally divorced, her husband’s permission would not constitute an essential requisite for undergoing medical termination of pregnancy.²⁵

In a Bombay High Court verdict pronounced by a Division Bench has set a benchmark where the medical termination of pregnancy has been allowed to a 33-week pregnant women against the advice of the Medical Board, as her pregnancy involves severe foetal abnormality and Court allowed the abortion irrespective of the exceeding period of the gestation for terminating the pregnancy.²⁶ The Court has made it clear by this verdict that it is no more the ultimate decision of the medical practitioner, rather it is the women’s sole decision to terminate her pregnancy.

Thus, these certain recent judicial pronouncements, wherein the Court has tried to implement the MTP Act more effectively and efficiently by introducing the new dimensions and scope to it and with their interpretation has tried to overcome the lacunas relating to the Act.

VII. Conclusion

Traditionally, in a country like India which preserves its culture and heritage, the performance of abortion was treated as a sin but, with the change in time and society there was the emergence of an era where the patriarchy starts dominating and the abortions in India were started to be performed on sex-selective basis. To deal with this situation the need for regulating the abortions in India arose, and this led to the incorporation of provisions governing the abortions in India under the IPC. But the provisions under IPC were very rigid and again there arose a need to formulate a separate legislation dealing specifically with the law of abortion in India, this led to the origination the MTP Act, 1971. Not only making a legislation is enough to curb a problem in a society, but its effective implementation is also what ultimately matters, thus to ensure the effective and efficient implementation of the MTP Act, 1971 the Indian judiciary from time to time has interpreted the hidden concepts within the Act. As discussed hereinabove, there are various lacunas in the existing MTP Act, but with the interpretation done under various judicial pronouncements, reflects that the Court has extended the scope of MTP Act and has allowed the women to terminate their pregnancy beyond the gestation period of 24 weeks of pregnancy, even going against the opinions of medical practitioners by making it as her sole decision to terminate a pregnancy and safeguarding the minors right to privacy by escaping the requirement under Section 19 of the POCSO Act. All this shows that the right to abortion is no more a conditional right of a woman in India. The Courts extended views of allowing the abortions in cases of forced sexual act and recognising the marital rape, just for the purpose of MTP Act, shows that the judiciary is evolving the new dimensions to protect the women’s right to abortion and is trying to ensure them with the rights of safe abortions as enshrined under the Indian Constitution.

However, there is still a long path to travel to achieve an equality in India, as there are recording of instances where the women are still denied terminating their pregnancies as being a single woman. Hence, the evolution of all these dimensions will only be eminent, if they are made applicable and aware to the Judges in India, which has evolved by the judicial interpretation beyond the written provisions of the MTP Act, 1971.