CONSTITUTIONALITY OF MEDICAL TERMINATION OF PREGNANCY

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INTRODUCTION:

Abortion always remains as a dread secret of our society. In the darkest corners of fear and mythology the abortion has been relegated for so long. The topic of abortion remains untouched and undiscussed. There is always an argument arises and most frequently advanced to explain the change of attitude is the need to combat criminal abortion more effectively whenever a country introduces more liberal legislation on abortion. When the fetus is being expulsed from the uterus before it has reached the stage of viability, this process is known as abortion or termination of pregnancy. If the abortion occurs spontaneously it is called as a miscarriage. Disease, trauma, genetic defect, or biochemical incompatibility of mother and fetus are some of the reasons for spontaneous miscarriages. There is a term missed abortion, which means occasionally a fetus dies in the uterus but fails to be expelled. There are only four general categories under which the abortion may be performed: To preserve the life or physical or mental well-being of the mother; To prevent the completion of a pregnancy that has resulted from rape or incest; To prevent the birth of a child with serious deformity, mental deficiency or genetic abnormality; To prevent a birth for social or economic reasons. When the legal way to termination of pregnancy is not available and the trained medical practitioner refuses to carry the termination, the woman is left with no choice other then to go to an untrained medical practitioner. This unsafe termination of pregnancy may cause various health issues to the woman and also has many risks in it. To avoid these kinds of unsafe medical termination of pregnancy the government has taken various steps. The government also taken the health and mental well-being of the mother before making laws or framing rules.

MEDICAL TERMINAITON OF PREGNANCY ACT:

The Indian penal code, declare termination of pregnancy as a crime under section 312. Section 312 says that “Whoever voluntarily causes a woman with child to miscarry, shall, 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”[1]. Due to these punishments the women started to terminate their pregnancy in an unsafe method and those abortions are generally carried out secretly by unregistered or not qualified medical practitioners. These unskilled practitioners usually do not use best method for conducting the termination this may result in the increased mortality rate among mothers. The Government of India after taking into consideration, formed a committee called as The Shah Committee. This committee is formed for the purpose to review about the different aspects of abortion, its effects and about the categories of women who were seeking to terminate their pregnancy. With the help of the committee, it was found that even married women were also seeking to terminate their pregnancy. The Shah committee in 1966, made a recommendation to make abortion legal to prevent deterioration of women’s physical and mental health and also to reduce mortality rate. With the recommendation made and for the purpose to make sure that the women get their pregnancy terminated by the skilled and qualified medical practitioners and also keeping in mind the progress the medical science had in the field to make the abortion safe the parliament enacted the Medical Termination of Pregnancy act, 1971 which came into force from 1st April, 1972.  The law gives permission for the termination of pregnancy only when there is a possible health risk to the physical or mental condition of the mother or when there is a potential risk to the health of the growing fetus or if a woman gets pregnant as a result of rape or due to the failure of contraception. The laws relating to abortion differs from country to country. When it comes to India the abortion can be performed on certain circumstances until 20 weeks of pregnancy. In this there are certain exceptional cases in which the court may allow a termination post 20 weeks. The amendment has been made in 1975 and 2002 for the primary law relating to the termination of pregnancies in India. The amendment bills have been introduced from time to time in India. Recently, the amendment bill was passed by the houses of parliament in 2020. 

 MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT,2021:

On 2nd march, 2020, in the Lok Sabha the medical termination (amendment) bill was introduced. It was passed by the Rajya Sabha on 16th march, 2020 and by the Lok Sabha on 17th march, 2020. The medical termination of pregnancy (amendment) act, 2021 received the assent of the president on 25th march, 2021 and the said act shall come into force on such date when the central government makes the notification in the official gazette of India. The main objects behind the amendment are that several cases have been filed before the hon’ble Supreme court and various high court for the reason to give permission for termination of pregnancies at stages beyond 20 weeks limit because of fetal abnormalities or pregnancies due to rape. This amended act makes changes in section 3 of the medical termination of pregnancy act and also increases the upper limit of termination of pregnancy from 20 to 24 weeks. This increase in upper limit for the termination is only for certain categories of women like rape survivors or pregnancy as a result of rape, victims of incest, the differently abled people and it also includes minors. The following are some of the changes proposed in the bill for terminating a pregnancy at different gestational period:

  • In MTP Act, 1971 the abortion up to 12 weeks can be done after getting advice from one doctor and the same was proposed in MTP (Amendment) bill, 2020.
  • In case of 12 to 20 weeks the abortion can be done with the advice of two doctors under MTP Act, 1971 but the bill changes it from two doctors to one doctor.
  • The termination of pregnancy for 20 to 24 weeks is not allowed under the MTP Act, 1971 but the bill proposed to allow termination for 20 to 24 weeks by two doctors and this is allowed only for some categories of pregnant women.
  • The MTP Act, 1971 does not allow termination of pregnancy more than 24 weeks but the MTP (Amendment) bill, 2020 allows it with the approval from the medical board in case of substantial fetal abnormality.
  • The act only allows the married women to terminate her pregnancy but the bill allows unmarried women also to terminate her pregnancy in the case of failure of contraceptive method or device.

In addition to this changes the bill introduce a new section 5A which penalizes medical practitioners or doctors who fail to protect the privacy and confidentiality of women who wish to terminate their pregnancy. Even though the amendments for termination of pregnancy proclaim women’s reproductive rights in the country, it has always given rise to intense moral, ethical, political and legal debates. The main reason for the debates is because termination of pregnancy is not merely a medical issue but it also includes a family, the state, motherhood, life of fetus and women’s sexuality. There are lot of things which looks very good when it is on the paper but if you dive deep into it, it is not really making much of a difference. In spite of these India has made the termination of pregnancy as a legal thing for the last four decades, which is opposed to many countries.

CHALLENGES AND ISSUES IN THE NEW AMENDEMNT:

However, the medical termination of pregnancy (amendment) act, 2021 is not the golden line in the same, this new amended act also lacks certain basic lacunas and this can be a major obstruction in the attainment of its objective. This key lacking can be a major setback for its ineffectiveness. In this new amended act, it is provided that the medical practitioner has the right to decide the termination of pregnancy. Now a heavy burden is thrown on the doctor to decide whether he should advice a woman for abortions. Serious problem arises before the doctor. Here the doctors are the deciding persons. The lives of the woman and the fetus lies in the hand of the doctors. There are lot of situation in which the law is not clear and certain question vex a doctor and he has to find a way out of the situation. There arise a lot of question before the doctors which are unanswered[2]

  1. If a minor girl seeks abortion and her parents are against it, what should the doctor do?
  2. If the girl refuses to undergo abortion and if her parents insist on it because the girl is unmarried, what advice should he render?
  3.  If the girl is raped and still however, she refuses to undergo abortion though her parents insist on abortion, what should a doctor advise?
  4. If a married woman though pregnant does not want the child but her husband or her parents desire her to carry through the pregnancy, what is the way out?
  5. If the husband of a woman desires her to get rid of the child by abortion but the woman is against it, what should be a doctor’s advice?

In addition to this there is no limited time prescribed for the medical board to give their decision which will lead to delay and improper implementation and executive. When it comes to the issue of transgender the act is silent. In this act it is also provided that abortion must be safe and it must be performed by the qualified medical practitioner but India is already facing shortage of qualified doctors. When we consider the situation, it will be mere promise to enact such provision as we lack the infrastructure in rural as well as in urban sectors. Here comes an important question whether the amendment is required. Even before the amendment there are lot of cases in which the termination of pregnancy is allowed beyond 20 weeks. In the case, Mrs. X vs. union of India[3] , the hon’ble Supreme court allowed for the termination of pregnancy at 22nd week. Similar to this judgment there are certain other judgment passed by the hon’ble Supreme court where pregnancies were allowed to terminate beyond 20 weeks under various medical condition and anomalies which may result in a high risk to the fetus and the mother. In Tapasya Umesh Pisal vs. union of India[4], termination of pregnancy was allowed in 24th week of pregnancy. In the case of Meera Santosh Pal vs. union of India[5], 25th week of pregnancy was allowed to be terminated by the hon’ble Supreme court. In all the cases mentioned the hon’ble Supreme court referred the matters to a medical board and its decisions are based on the opinion given by the medical board. Even in certain cases rape victims are allowed to terminate their pregnancy beyond 20 weeks. In Murugan Nayakkar vs. Union of India & Ors.[6], for a 13-year-old rape victim, the apex court allowed the termination of her pregnancy at 32 weeks old. The court considered the age, the trauma she suffered and the agony she is going through and also considered the opinion of the medical board and said that the termination of pregnancy is appropriate. Though the amendment is a step towards a right decision, the government needs to ensure all the protocols are followed and the act is followed properly.   

CONSTITUTIONALITY OF THE ACT:

The constitution of India gives every person the protection of life and personal liberty under article 21 which says “No person shall be deprived of his life and personal liberty except according to procedure established by law”[7]. The concept of right to life is very broad and this is the most fundamental of all. In the definition of article 21 the term person includes both men and woman. There are various right available to woman and the right to abortion is one among the rights guaranteed to the woman. In the case of Mrs. X vs. union of India[8] , the hon’ble Supreme court held that a woman has a right to make her choice of reproduction also comes under the dimension of her personal liberty which is guaranteed under article 21 of the Indian constitution and also added that the right to bodily integrity allows her to terminate her pregnancy. In the case of suchita Srivastava & Ors. vs. chandigarh administration[9], the hon’ble Supreme court acknowledge that under article 21 of the constitution the term personal liberty also covers the woman’s right to make reproductive choices. It also added that it is the reproductive choices can also be exercised in both ways to procreate as well as to abstain from procreating. Under right to privacy which is a part of right to personal liberty and which is emanates from right to life, the right to abortion has been recognized. There is always a serious question arises whether an unborn child should be considered as a human being and be given the status of a person or not? Religious, ethics, moral and legal values are some of the aspects that rule over the aspect of right to abortion. In all religion the termination of pregnancy is severely condemned. Even though the question remains whether the mother has a right to abortion or the child has a right to life. The study made by Ronald Dworkin[10] gives as a detailed view on the issue of abortion. He rejected the view of derivative claimers who prohibit abortion because the fetus is a complete moral person from the movement of conception. In addition to this they also said that the unborn child has a right to live and abortion is a murder or nearly a wrong as murder. According to Ronald Dworkin a fetus brain is not sufficiently developed before the late weeks of pregnancy so the fetus cannot feel the pain. His point has been agreed by the scientists also and they said that the fetus brain will be sufficiently developed to feel pain from approximately the twenty sixth weeks. Another question relating to the abortion is that whether abortion is against the interest of a fetus? This questions answer must depend on whether the fetus itself has interests and not on whether interest will develop if no abortion takes place. We cannot consider that something that is not alive does not have interests. On the other hand, just because something can develop into a person does not mean it has interests either. When a fetus can live on its own it may have interest but this is possible only after the third trimester. The women have a right to choose whether to conceive and carry pregnancy to its full term or to terminate and it may include the privacy of that women, her dignity, her personal autonomy and her right to health. When continuance of pregnancy will entail physical, mental and socio-economic consequences, the state cannot compel a woman to continue a pregnancy against her will. In 1971, the medical termination of pregnancy act was enacted to provide termination of pregnancies by the medical practitioners. Under section 3 (2)(b) it is said that pregnancy cannot be terminated beyond 20 weeks in normal course and it can only be terminated if it is necessary to save the life of the women. This termination can be done with the consent of two medical practitioners and not otherwise. When we take a look, it is clear violation of fundamental right which is guarantee under the article 21 of the constitution of India, and this article provides for personal liberty, right to health, right to choose, etc. By the 2021 amendment act the section 3 has be amended and it gives the woman what is guaranteed to them under the constitution. In the amendment act though specific changes are made in the existing act which includes the extension of gestational limits and the inclusion of unmarried women is admirable, it still leaves women with several conditionalities. Those conditionalities may enhance as an impediment in access to safe abortion. In a landmark case justice K. S. Puttaswamy vs. Union of India &Ors.[11], the hon’ble justice Chandrachud said that under article 21 of the Indian constitution, the women is guaranteed with reproductive choice which comes under the explanation of their personal liberty and the privacy of a woman. In addition to this he also added that this right does not translate into a fundamental shift in power from the doctor to the woman seeking an abortion. In short, the termination of pregnancy always remains tied to the state-sanctioned conditionalities and not the rights of the woman.

CONCULSION:

To conclude from the points and cases mention we can assume that the medical termination of pregnancy (amendment) act, 2021 is a welcoming step towards a right decision because of the increased time limit to terminate the pregnancy may help to avail a legal termination under this act. This will also reduce the burden on the court and also reduces the writs which are being filed as no other resort was present with the aggrieved women. To the women who had crossed the maximum period until which the pregnancy can be terminated in the prior act are provided with a relief by this amendment act. The medical termination of pregnancy (amendment) act, 2021 allowed termination of pregnancies in good faith beyond the specified time period through change of terminologies and reference to prior judgments from different courts. This act has also given a life to the intentions of the courts that had been reiterated through various judgments. Now with this amendment the medical board will resolve the various petitions which are filled with the abnormalities that has been detected in fetus. India will be moving towards a more progressive society when all other developed countries are drafting legislations to further restrict abortions. Like a coin with two sides, there is a negative view to this amendment. Even though the amendment is a step towards right decision the amendment must reach all the people living in the world. There are various kinds of people who were unaware of the laws and rules relating to abortion. The abortion may financially cost a lot and some people do not known how to approach a doctor or a trained medical practitioner. The medical board did not have a particular time to give advice for the cases which are before them, the more time they take the more risk is to the mother. Finally, amending a act or making new law is considered to be right step when it is followed in a same way. The government in addition to framing law must ensures those laws are followed properly. 


[1] Indian penal code, 1860 (section 312)

[2] Lawyers’ collection 41-44 “abortion: the doctor’s dilemma”

[3] (2016) 14 SCC 382.

[4] (2018) 12 SCC 57.

[5] (2017) 3 SCC 462.

[6] (2017) SCC online SC 1902.

[7] The constitution of India (article 21).

[8] (2016) 14 SCC 382.

[9] (2009) 9 SCC 1.

[10] Ronald Dworkin “Life’s dominion: an argument about abortion, euthanasia and individual freedom”.

[11] (2017) 10 SCC 1.

Author: Aiswarya Lakshmi J.S.

Editor: Kanishka VaishSenior Editor, LexLife India.

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