JAMIA MILLIA ISLAMIA UNIVERSITY

FACULTY OF LAW

ACADEMIC SESSION: 2020-21

Health Law

Medical Termination of Pregnancy Act- Right to Abortion

Submitted to: Submitted by:

Dr. Subhradipta Sarkar Shimran Zaman
Taiyeba Noor Fatima
B.A.LL.B(Hons.)
Self-Finance
VIIIth Semester
Roll No.- 52 & 55

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ACKNOWLEDGEMENT
In this Eighth semester of B.A.LL.B.(Hons.) Course at Faculty of Law, Jamia Millia Islamia, We have got the
good fortune to learn ‘Health Law’. Here, the guidance of Dr.Subhradipta Sarkar, Faculty of law, made us
able to understand the concept and, thus, we greatly owe to him. He had given us a proper direction to our
study of ‘Health Law’. His unfettered support made us able to complete this project.

We are thankful to other faculty members of Jamia Millia Islamia for their co-operation.

We are also thankful to the librarians of Jamia Millia Islamia for their support.

We remain, of course, entirely responsible for any errors.

Shimran Zaman & Taiyeba Noor Fatima

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CONTENTS

TOPIC PAGE No.

1. INTRODUCTION………………………………………………………..04

2. REPRODUCTIVE RIGHTS……………………………………………..05

3. REPRODUCTIVE HEALTH……………………………………………05

4. HISTORY OF THE PRO-CHOICE

MOVEMENT……………………………………………………………06

5. LEGAL FRAMEWORK OF ABORTION

LAWS IN INDIA………………………………………………………..07

6. ENACTMENT OF THE MEDICAL

TERMINATION OF PREGNANCY ACT 1971……………………….08

7. SALIENT FEATURES OF THE MEDICAL

TERMINATION OF PREGNANCY ACT 1971……………………….09

8. RIGHT TO ABORTION AND

ANOMALIES IN THE ACT……………………………………………10

9. MATERNAL MORTALITY……………………………………………12

10. PUBLIC KNOWLEDGE ABOUT

TERMINATION OF PREGNANCY MEASURES…………………….13

11. PROBLEMS WITH INDIA’S MEDICAL

TERMINATION OF PREGNANCY ACT AND
OTHER ABORTION LAWS AND SUGGESTED
REMEDIAL MEASURES……………………………………………...14

12. SUPREME COURT TO EXAMINE

FUNDAMENTAL RIGHTS VIOLTIONS RESULTING
FROM INDIA’S OUDATED MEDICAL TERMINATION
OF PREGNANCY ACT (1971)...……………………………………...17

13. CONCLUSION…………………………………………………………21

14. BIBLIOGRAPHY………………………………………………………22

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INTRODUCTION
One only needs to switch on the television to know the state of reproductive rights in India. The increasing
death toll of new born babies in all over the country is a reminder of the theoretic impotence of these rights. In
spite of having an array of acts and codes that make the claim of ensuring these rights, women across India
still die at childbirth or lose their babies, are denied contraceptives or the knowledge of them, are forced to
abort or not allowed to do so.

The reproductive rights of women have seen a history of vain, half-hearted efforts on the international front.
From the Proclamation of Teheran (1945) to the proposal of the Yogyakarta Principles (2006), the
international organisations have failed to come up with a binding international instrument. It is only the
organisations like the Amnesty International, the United Nations Population Fund and the World Health
Organisation (WHO) that are advocating the reproductive rights of women, but without any written law or
binding instrument.

However, recently, there have been developments in the issue of reproductive rights. From the High Court of
Punjab and Haryana at Chandigarh ordering the government of Haryana to respond to a petition alleging that
its reproductive health policy and programs discriminate against women by limiting information and access to
a full range of modern contraceptives to the Delhi High Court’s stand against cruel treatment towards
pregnant women, a change can be seen taking place. It is slow, but it is there. 1

1
Abortion in India, available at: http://www.jstor.org (Last visited on May 01, 2021)
4
REPRODUCTIVE RIGHTS

Embrace certain human rights that are already recognized in national laws, international human rights
documents and other consensus documents. These rights rest on the recognition of the basic rights for all
couples and individuals to decide freely and responsibly the number, spacing and timing of their children and
to have the information and means to do so, and the right to the highest attainable standard of sexual and
reproductive health. They also include the right of all to make decisions concerning reproduction free of
discrimination, coercion and violence, as expressed in human rights documents. 2

REPRODUCTIVE HEALTH

Reproductive health is a state of complete physical, mental and social well-being and not merely the absence
of disease or infirmity, in all matters relating to the reproductive system and its functions and processes.
Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they
have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this
last condition are the right of men and women to be informed about and to have access to safe, effective,
affordable and acceptable methods of family planning of their choice, as well as other methods for regulation
of fertility which are not against the law, and the right of access to appropriate health-care services that will
enable women to go safely through pregnancy and childbirth and provide couples with the best chance of
having a healthy infant.3

An analysis of the definitions and the various proclamations that followed gives the basic constituents of
reproductive rights. However, several authors state that reproductive rights include some or all of the
following rights:

1. Right to legal or safe abortion.

2. Right to control ones reproductive functions.
3. Right to information in order to make reproductive choices free of coercion, discrimination and
violence.
4. Right to education about contraception and sexually transmitted diseases and freedom from coerced
sterilization and contraception.
5. Right to be protected from gender based practices such as female genital cutting and male genital
mutilation.

HISTORY OF THE PRO-CHOICE MOVEMENT

2
A womb of one’s own: Privacy and Reproductive Rights , available on: http://www.feminismindia.com (Last visited on May 01,
2021)
3
Id. at 2.
5
“Pro-choice” movement is the phrase used to describe a woman’s bodily right to continue with her pregnancy
or use medical procedures to go bring it to an end. Such medical procedures should be legally approved and
medically safe. Abortions had been prevalent way back in 450 BC, as suggested by the works of Hypocrites.
In 4th century AD, abortion was allowed only till the first three months of pregnancy. In the middle age and
until the 1900s, abortions were not allowed legally in many countries. For instance, England in 1869 came up
with a legislation called “Offences against the Persons Act”, that outlawed abortions for any reason. 4

The first country to allow termination of pregnancies on a slew of legal grounds was the Union of Soviet
Socialist Republics (USSR) in 1920. Nazi Germany, practised selective abortions, as seen in the 1933
legislation called “Law for the Prevention of Progeny with Hereditary Diseases”, that was used to terminate
differently abled children. They were closely followed by Japan in 1948 and several European countries in the
1950s. Interestingly, Britain reversed its stand in 1967 and started allowing abortions. USA has a fractured
history of abortion rights. In the 1950s, the medical community in America started discussing “planned
parenthood”-a subtle synonym to describe abortions. This laid the ground for the American legal institute to
plead for abortions to be legally allowed in cases other than rape in 1959. In the 1960s, Mississippi,
California and Colorado became the first states to allow abortions. However, by the 1970s, only 16 of the 50
states supported the abortion rights movement. Later due to the US Supreme Court’s decision in Roe v.
Wade,5 in 1973, allowed abortions nationally. This, however, caused a political and legal friction between
“pro-life” groups and abortion lobby in America.6

4
The survival of the Pro-Choice Movement, available at: http://www.cambridge.org (Last visited on May 01,2021)
5
410 U.S. 113(1773)
6
Scholarly Articles on Abortion: History, Legislation and Activism, available on: https://www.gale.com (Last visited on May 01,
2021)
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LEGAL FRAMEWORK OF ABORTION LAWS IN INDIA

Abortion is considered bad in Indian society as it is equivalent of killing a human being. Abortion can also
occur naturally, or artificial or even accidental. Naturally, abortion can occur because of many reasons like
bad health of the mother, astonishment during early pregnancy, sudden happiness or fear etc. To address the
issue of abortion we should first understand when the life begins in the womb of a mother and abortion is
destruction of a life after it has been conceived and before it is given birth. Many people raise different kinds
of questions like legal, social, moral and medical regarding abortion. Some even question as to if a woman
wants to terminate her pregnancy does she have the right to do so as it is a moral obligation of a mother to
give birth to the child and also it does not permit to kill the foetus. But one exception to this is a woman’s
health has to be considered where if the foetus effects the health of the mother then the woman has right to
abort the foetus.7 Under Indian Penal Code, Section 81 states that an ‘act will be excused which can
otherwise be considered a crime if that accused person shows that the act she did was to avoid the
consequence which was necessary for that determination’8 . Law provides omission to a man when his life is in
danger to inflict serious hurt on the attacker to save himself but the violence or force used on the other person
should not be more than needed for the act of self-defence. Even if we consider this, some argue that since
unborn child cannot be an attacker abortion cannot be seen as a privilege of self-defence. Aggression involves
an act which is beyond a person’s control and unborn child cannot commit any aggression so the child has the
right to be born and not aborted.9

Under Section 312 of IPC defines offence about causing miscarriage which states that ‘if anybody causes a
woman who is carrying a child to lead to miscarriage and if it is done in some bad faith then they can be
punished for a term of 3 years with fine or both’. Framers of the act did not use the word abortion but rather
have used it as miscarriage. Generally the word miscarriage means abortion but legally is premature removal
of the conception of foetus from uterus before it is full grown. 10

7
Abortion Laws in India: A critical review, available on: https://www.tandfonline.com (Last visited on May 01, 2021)
8
The Indian Penal Code, 1860 (Act 45 of 1860), s.81
9
Id at 7.
10
Causing of miscarriage, available on: www.latestlaw.com (Last visited on May 01,2021)
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ENACTMENT OF THE MEDICAL TERMINATION OF PREGNANCY
ACT 1971

Owing to its colonial legacy and Great Britain’s act of outlawing abortions from 1869 to 1967, Section 312 of
the Indian Penal Code (IPC) disallowed as an induced act of miscarriage. However, post-independence things
changed significantly. In 1952, India introduced family planning programme to check its expanding
population. In 1964, the Central Planning Commission formed a committee- under the leadership of the
Health Minister of the state of Maharashtra, Shri Shantilal Shah, to look into the need to bring in changes to
the IPC and introduce other needed legislation to deal with termination of pregnancies purposefully. The
committee submitted its report in 1966, which called for deletion of Section 312 of IPC and the need to bring
in a special law to deal with termination of pregnancies. They cited the changes in Great Britain’s abortion
laws to support the need for India’s abortion laws to be changed. Shantilal Shah Committee had recommended
to liberalise abortion laws in India to reduce maternal death relating to illegal abortion thus Medical
Termination of Pregnancy bill was brought before Rajya Sabha in 1969 and thus an exclusive abortion-
related legislation- the Medical Termination of Pregnancy (MTP) Act, 1971, came into being.11

MTP Act has been complemented with several rules and regulations over the years. For instance, the Union
government in 2003 came up with the “MTP Regulations”, which is to be followed in all centrally
administered territories or Union Territories (UTs). According to the aforementioned regulations, all the
Registered Medical Practitioner (RMP) must maintain abortion records and submit them to the Chief Medical
Officer (CMO). The union government asked states to follow suit and come up with similar laws to regulate
abortion procedures. The union government also came up with the Comprehensive Abortion Care (CAC)
Training and Service Delivery Guidelines, 2010, which has been amended in 2014. It aims to train medical
practitioners and staff to clamp down upon the deaths of mothers from unprescribed induced miscarriage
practices. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex
Selection) (PCPNDT)Act, 1994, has also been used to supplement abortion laws and regulations to ensure
that girl child deaths through illegal induced miscarriages are looked into and avoided in the future.12

11
Women and the Law: An analysis of medial termination of pregnancy act, available on: https://www.scconline.com (Last visited
on May 01, 2021)
12
Id. at 10.
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SALIENT FEATURES OF THE MEDICAL TERMINATION OF
PREGNANCY ACT 1971

Preamble of the act states that pregnancy termination can be permitted in some cases but only an authorised
medical practitioner who has the certificate of gynaecology and obstetrics can terminate the pregnancy and as
per the rules provided by the act. Under Section 3 of the Act a medical practitioner will not be held guilty of
an offence under the Act if he terminates any pregnancy as per the provisions of this Act where the length of
the pregnancy is not more than 12 weeks and also if exceeds 12 weeks but not more than 20 weeks then 2
registered medical practitioners can give their opinion on termination on account of the following conditions:

 Women whose physical and/or mental health were endangered by the pregnancy.

 Women facing the birth of a potentially handicapped or malformed child.

 Rape.

 Pregnancies in unmarried girls under the age of eighteen with the consent of a guardian.

 Pregnancies in lunatics with the consent of a guardian.

 Pregnancies that are a result of failure in sterilisation. 13

As per the act the medical practitioner should be a person who is qualified under Section 2 of Indian Medical
Council Act 1956 and whose name is registered and who has experience in the same field as prescribed by
rules under the Act to terminate pregnancy. As per the State Medical Council an allopathic doctor has been
authorised to do abortion but Homeopathic, Ayurvedic and Unani doctors are not qualified under the act to do
abortion. When a doctor satisfies the requirements of medical council he will become eligible to perform
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abortions.

Under this Act no pregnancy of a lady can be terminated until and unless she is 18 years of age and who is not
made or lunatic and gives consent in writing to her guardian. Here consent of mother is most important even if
her husband wants an abortion and the woman does not want to kill the foetus she cannot be forced to do so
unless she is a minor or a lunatic person.

13
Supra note 11 at 8.
14
Abortion rights: The New MTP Bill v. Old MTP act, available on: www.barandbench.com (Last visited on May 03,2021)
9
Under Section 4 of the Act detailed description of the place of termination of the pregnancy is stated like a
hospital. It should be hygienic place to perform abortion, where an operation table is provided with proper
instruments needed to perform it and drugs and other necessary items for it in the place to be kept. A woman
has complete right over her body and she has the right to abortion too and can decide not to do it. Most of the
countries where abortion is legalised death rate of women is below 1 for 100,000 procedures. Abortion is quite
a safe method if it is done by skilled doctor and who has proper facility.15

RIGHT TO ABORTION AND ANOMALIES IN THE ACT

The right to make free and informed decisions about health care and medical treatment, including decisions
about one’s own fertility and sexuality, is enshrined in Articles 12 and 16 of the Convention on the
Elimination of all Forms of Discrimination Against Women (1978). Autonomy, the right to informed consent
and confidentiality are considered the fundamental ethical principles in providing reproductive health services.
Autonomy would also mean that when a mentally competent adult seeks a health service, there is no need for
an authorization from a third party. Contrary to this Supreme Court judgment when hearing an appeal in
the Ghosh v. Ghosh16 divorce case, the court ruled on March 26, 2007: “If a husband submits himself for an
operation of sterilization without medical reasons and without the consent or knowledge of his wife and
similarly if the wife undergoes vasectomy (read tubectomy) or abortion without medical reason or without the
consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.” Considering the
circumstances of the case, the court granted a divorce. The judgment has serious implications for reproductive
health services in India, because it mandates spousal consent for induced abortion and sterilization. According
to a report published by CEHAT, in the experience of 60 per cent of married women, doctors providing
abortions insisted on the husband’s permission prior to the procedure, and 28 per cent said this was true in
government and private hospitals. It should be clear that this is not a mandate under the MTP Act.

The judgement conflicts with the existing guidelines for medical practice, and it is likely to confuse those who
are seeking as well as offering these services. It implies that when a woman seeks abortion or sterilization on
her own and if her husband is not informed or does not consent, the very act of the woman could be cited by
her husband as mental cruelty and act as a ground for seeking a divorce. The judgement thus hits at the very
core of reproductive rights: taking a decision and seeking a service without fear of coercion or violence. 17

Another stance that needs to change is in relation to the reproductive rights of mentally retarded women. In
India, a disabled girl-child is usually at the receiving end of a lot of contempt and neglect. Women with
disabilities have been consistently denied their rights. A nineteen year-old mentally challenged orphan girl at
Nari Niketan, Chandigarh, a government institution for destitute women, was raped sometime in March 2009

15
Abortion in India – still not a right but a privilege, available on: https://www.theleaflet.in (Last visited on 02 May, 2021)
16
(2007) 4 SCC 511
17
Id. at 13.
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on the premises by the security guards. In May 2009, a pregnancy was detected. A multi disciplinary Medical
Board, which included a psychiatrist, recommended that woman “has adequate physical capacity to bear and
raise the child but that her mental health can be further affected by the stress of bearing and raising her child.”
Based on these recommendations, the Punjab and Haryana High Court ruling ordered medical termination of
pregnancy (MTP). On appeal by an NGO against the High court’s order, the Supreme Court of India gave a
landmark decision allowing a 19-year-old mentally challenged orphan girl to carry on with a pregnancy
resulting from a sexual assault18 . This case was not about abortion per se, it was about whether the law of this
country recognizes and protects the agency of a woman to take decisions for her life and body, especially
when the woman is a person with mental retardation (MR) or any other disability.

Legally, Medical Termination of Pregnancy (MTP) Act does not deal with abortion of women of metal
retardation, and that it wrongly distinguishes between women with mental retardation and mental illness,
leaving the former out totally. Also the Act does not understand that both these kinds of women are more
likely than not to be destitute, in which case guardianship is not that simple. The SC failed to address issues of
support mechanisms and state’s accountability for creating and sustaining comprehensive and reliable support
systems for the woman within a rights framework- an obligation under Article 12 of the UN Rights of Persons
with Disabilities Convention. This case indicates eloquently that the Indian legal framework has to be
strengthened a great deal to bring it in line with international legislation. It also raises the question whether
our government institutions are safe enough to protect women and more so people with disabilities. 19

Now even though there is a right to abortion in India, the right to safe abortion is a far reality. In India, a
woman dies every two hours because she’s had an unsafe abortion, according to estimates by IPAS, an
international organisation that works with the National Rural Health Mission to reduce maternal deaths due to
unsafe abortions.

Although the Act permits abortion if the doctor believes in good faith that “…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 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,” the onus still lies on the woman to explain or prove how it will
harm her physically or mentally. The MTP Act fails to define terms like “abortion”, “miscarriage”,
“termination of pregnancy”, “health”, “substantial risk”, and “seriously handicapped”, making the doctor’s
opinion sacrosanct.20

The government of India introduced family planning in 1952, and passed the MTP Act in 1972. It’s been 60
years since family planning was introduced, and 40 years since abortions were made accessible for women on

18
Suchita Shrivastava v. Chandigarh Administration (2009) 14 SCR 989, (2009) 9 SCC 1
19
Supra note 15 at 10.
20
The new pregnancy termination bill still ignores women agency, available on: www.thewire.in (Last visited on May 02, 2021)
11
many conditions, excepting on demand. MTP centres were opened in several government hospitals or
independently to make abortion accessible to women who met the criteria. Yet these centres are often
inaccessible and dismissed as an option. The MTP centres originated with the understanding that they would
contribute to family planning. Many operate under the assumption that the women who come to these centres
are married. Often, abortion services are provided in exchange for promises to use contraceptives; in several
cases, contraceptives like Copper-T are inserted into the women’s vaginas immediately after abortion.
Moreover, most MTP centres are in urban areas, unavailable to rural women whose minds are in any case
clouded with myths about abortion. The stigma around abortion also makes things doubly difficult for Indian
women.21

MATERNAL MORTALITY

Approximately 117,000 women and girls die each year in India due to pregnancy related causes. This
accounts for 25% of all maternal deaths globally. For every maternal death there are estimated to be between
30-50 temporary or chronic cases of maternal morbidity. The majority of these maternal deaths and pregnancy
related illnesses and disabilities are preventable.

According to the latest Government statistics (2004-2006), India has a Maternal Mortality Ratio (MMR) of
254, i.e. the number of maternal deaths per 100,000 live births. However, the World Health Organisation
(WHO) calculated a MMR of 450 for 2005. Even relying upon the conservative Government figure, India has
one of the highest MMRs in the world, higher than in 120 countries including India’s neighbouring states of
Bangladesh, China, Nepal and Sri Lanka. This is because, in addition to factors such as poverty, poor
nutrition, gender discrimination, caste discrimination, unhygienic living conditions, lack of access to
education and low literacy rates, and lack of access to contraception and family planning, the public health
system in India fails in its legal obligations to provide adequate maternal health care, basic and comprehensive
emergency obstetric care and access to safe medical termination of pregnancy. 22

In a historic decision the Delhi High Court ordered compensation for violation of constitutional and
reproductive rights of two impoverished women. In the case of Laxmi Mandal v. Deen Dayal Hari Nager
Hospital & Ors23 Justice Muralidhar instructed the State of Haryana to pay compensation of Rs 2.4 lakhs to
the family of Shanti Devi who passed away during childbirth. The Court found the respondents in violation of
Shanti Devi’s right to life and health, reiterating that her death was preventable. Drawing on international law
Justice Muralidhar underlined that women have the right to control their body and decide when they wish to
conceive. The Court also pointed out that women carry the burden of poverty in that they have to prove their
21
Supra note 17 at 11.
22
Maternal Mortality- WHO, available on https://www.who.int (Last visited on May 03, 2021).
23
(2010) 172 DLT 9
12
BPL status when trying to access health facilities and accordingly ordered that “no pregnant women be denied
access to medical treatment regardless of her social economical status.”

PUBLIC KNOWLEDGE ABOUT TERMINATION OF PREGNANCY

MEASURES

Indian Institute of Population Studies (IIPS), an NGO dealing with demographic studies, conducted a survey
in 7 South Indian and an equal number of north Indian states to find out about the level of awareness amongst
youngster aged 18-24 years regarding abortion procedures and laws in India.
They found that states in southern India were more aware when it came to knowledge about medicinal means
to carry out induced miscarriage, with about 1/3 rd of men and half of the women surveyed were aware vis-à-
vis the national average of roughly 25 per cent men and 30 per cent women. It was also found that over 75 per
cent of men and women surveyed knew that sex determination and resultant abortion is outlawed. This seems
to suggest that the Indian government’s attempt to counter sex determination tests and resultant induced
miscarriages have succeeded to a certain degree. Roughly 2/3 rd of men surveyed and 3/4th of women surveyed
knew about the 20-week norm to abort a child legally in India. However, less than 40 per cent of men and
about 45 per cent of women surveyed knew about unmarried women being legally allowed to opt for induced
miscarriage. Only 1/4th of men and women surveyed knew about married women being legally allowed to opt
for induced miscarriage. It was also found that married youths and those in urban areas were more aware of
abortion rights and methods than their unmarried and rural counterparts. Similarly, youth in South India and
Maharashtra were more aware of their sexual rights, abortion rights and methods as well as Sexually
Transmitted Diseases (STDs) and ways and means to prevent them. 24

PROBLEMS WITH INDIA’S MEDICAL TERMINATION OF

PREGNANCY ACT AND OTHER ABORTION LAWS AND SUGGESTED
REMEDIAL MEASURES

Indian legislation dealing with abortions, while novel in its intentions and purpose, suffers from some
procedural and legal hindrances that make its application problematic and creates unpleasant consequences as
described below-

 Over-priced medicines – There are two ways of aborting a baby- either via surgical tools or with
the help of medicines. These medicines are utilized either orally or through the vagina for
24
Why India needs a new MTP Act, available on: www.livemint.com (Last visited on May 03, 2021)
13
 terminating an unborn foetus. In many cases, due to cost and other health-related concerns, women
go for oral medicines disbursed by specialist doctors. These doctors often sell these birth control
medicines at exorbitant prices, taking undue advantage of a woman’s ignorance and helplessness.
The MTP Act, in its attempt to ensure birth control, gives wide-ranging powers to doctors, which is
routinely misused by doctors to fill in their pockets. Therefore, the need of the hour is to ensure that
oral or vaginal pills used for medical termination of pregnancies should be compulsorily included
in the national list of essential medicines, which are to be obligatorily sold at government approved
affordable prices for a woman’s convenience. 25
 Misuse of PCPNDT Act – The PCPNDT Act outlaws sex-selective acts of termination of
pregnancy. This was due to sonography and other modern technology being misused to determine
the gender of the unborn child and aborting it prematurely in cases of girl child. Of late, PCPNDT
Act has been wrongly used by law enforcement agencies to clamp down on all abortions as they
feel that by clamping down on abortions in general, they will be able to save female children who
are being regularly terminated at birth. Doctors too are wary of abortions due to the potential of
being prosecuted under the PCPNDT Act, which invites harsh punishment for offenders. The
“conflict” between PCPNDT and the MTP Act feels manufactured. The PCPNDT outlaws any
medical action that is meant to determine the gender of an unborn child. If any individual/s act on
such determination of gender of an unborn child and terminate the pregnancy because the child’s
gender was female, such an action is to be prosecuted, while the offending individual/s and the
doctor and other medical professionals involved are to be punished. MTP Act, on the other hand,
allows induced miscarriage of unborn children, be it male or female, on grounds like rape-induced
pregnancy, the mother’s life being at risk, the child suffering from any disability etc. The very
purpose of the MTP Act is wildly different from the PCPNDT Act. While the formers help to aid
genuine cases of abortion, the latter aims to stop sex determination and sex-selective abortion, MTP
Act does not allow sex determination of the child. Thus, it is imperative for law enforcement
agencies to understand the purpose behind both the laws and apply it accordingly. 26

 The conflict between POCSO and MTP– The MTP Act allows minors to terminate their
pregnancies with the consent of their legal guardians. This is meant to ensure anonymity and
expedite the process of termination of pregnancy to ensure that health complications do not affect
the minor. POCSO Act, on the other hand, makes it legally obligatory for doctors attending to
termination of pregnancy of minors to report such cases of minors getting pregnant to law
enforcement authorities. In case the doctor does not report this and goes ahead with the abortion
process, he/she will also be legally prosecuted. As a result, minors do not prefer going to registered
doctors and visit quacks or other medical service providers who may carry out abortion in an

25
Policy & Issues A strong case for amending MTP A ct, available on: https://www.hindu.com (Last visited on May 03, 2021)
26
Id at 21.
14
 unsafe manner. This defeats the whole purpose of MTP Act which seeks to protect the identity of
women undergoing induced miscarriage process. The situation in India is even more dire as about
half of all brides are minors, who may not get access to best of legal services to terminate teenage
pregnancy or may have to risk their life and limb by undergoing an unsafe surgery. Therefore, there
is a need to look into this friction between the MTP Act and the POCSO Act and get rid of it as this
is putting the lives of a lot of young women at potential risk. India is a party to the Convention on
Rights of Child (CRC), a legal instrument created by the United Nations in 1992 to look into the
welfare of children. According to the CRC, children should not be allowed to be a part of any
sexual activity which is not willful or natural. This was meant to protect children from sexual
rackets and sexual predators. But, the CRC did not suggest that sexual autonomy of children should
be completely curtailed. It sought to simply protect children from being sexually exploited. This
was also cited by Justice Verma Committee in their final report in 2012 on amending India’s
criminal justice system to deal with rapes. They cited Article 34 of the CRC to counter POCSO’s
provisions outlawing any consensual sexual activity involving minors. Therefore, the POCSO Act
needs urgent amendments in order to allow consensual sexual activity among minors with an
adequate level of secrecy to terminate teenage pregnancies with the least legal resistance possible.

 Lack of adequate doctors– India lacks the sufficient number of registered and trained medical
practitioners to take care of its looming abortion requirements. This has resulted in pregnant
women going for unsafe abortion procedures, which causes about 4000 deaths annually. AYUSH
practitioners, auxiliary nurses can be trained to advice oral and vaginal pills to pregnant ladies
opting for abortions. This will help bring down the number of deaths due to unsafe abortion
procedures as well as help a lot more women avail proper medical services. As suggested in the
2014 MTP amendment bill, this provision would have been no less than revolutionary. However,
due to political and administrative reasons, this bill was not passed. 27
 Clash with disability rights movement– MTP allows abortion up to 20 weeks. It is to be noted
that the MTP Act came up in the 1970s. Technology has made huge strides these days. It is not
only possible to detect defects in pregnant women late into the pregnancy, but the abortion process
too has become much more streamlined and safer, even late into the pregnancy. However, as the
MTP Act does not take into account these technological advancements, the application of the law
has been scratchy at best. For example, in a 2008 case, when a mother approached Bombay high
court to abort her 20 week old foetus, whose heart condition was detected late into the pregnancy,
the court while noting the obsolescence of the MTP Act as well as the advancement in technology,
decided to turn down their request due to the 20 week period norm. Similarly, in a 2017 judgment,
the Calcutta High court did something completely different by allowing a 25-week old pregnancy
to be terminated on similar grounds. Thus, the courts too have not been uniform in the application
27
Abortion in India: Experts call for changes, available at: www.downtoearth.org.in (Last visited on May 03, 2021)
15
 of the law. This shows that both the law and its application need to be looked into with appropriate
course correction. However, a major question that crops up is whether the MTP Act clashes with
the disability rights movement in India? The 2008 case cited above deals with the conundrum faced
by a certain Nikita Mehta. She was able to discover a heart defect in her foetus of 20 weeks, which
could not have been detected beforehand. The defect was incurable. A major opposition against
allowing large-scale abortions of feotus with incurable defects is that it hampers the rights of such
specially-abled children. Article 21 of the constitution allows everyone the right to life with respect
and dignity. However, as cited by many parents, it is difficult in a country like India to take care of
specially-abled children due to fiscal constraints and societal pressure. India has never been
considered disabled friendly. There is clear lack of fiscal and infrastructural means to take good
care of the differently abled. In fact, many scientists and researchers have not been able to discern
if a foetus can be considered a living organism? They have not been able to determine if and when
a foetus starts developing emotional and cognitive skills like other -humans. Thus, till better state
support comes up, abortion of the differently abled fetuses with incurable ailments may be allowed
on a case to case basis depending on the level of disability and the parent’s ability to deal with the
same.28

 The legal process is overdrawn and slow– There have been instances in the past, where the
judiciary has been found wanting in its response to abortion petitions. For example, in a certain
case, a lady suffering from HIV had to deliver a baby as the judiciary was not expedited enough in
dealing with her petition. As a result, the 20 week period was lost and induced miscarriage posed
risk to both mother and child. The legal system thus needs to put its act together. In cases of
abortion petitions, the whole process of hearing should be fast-tracked keeping in mind the 20 week
period to have a safe and legally permissible abortion in India. A special bench may also be
constituted to fast-track such trials.
 Need for major policy change- India’s abortion laws and procedures are archaic. They aim to
prevent population explosion and guarantee women’s rights but are filled with loopholes and
restrictions. Abortions are not a guaranteed right but can be taken up under selective conditions like
a child suffering from any physical or psychological impairment, pregnancy being a result of rape,
teenagers becoming pregnant etc. This leads to a lot of undue restrictions on women, which must
29
be done away with. The Act must become facilitating and not restricting.

28
Supra note 23 at 15.
29
Everything wrong with MTP Act, available on: www.indianexpress.com (Last visited on May 03, 2021)
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SUPREME COURT TO EXAMINE FUNDAMENTAL RIGHTS VIOLTIONS
RESULTING FROM INDIA’S OUDATED MEDICAL TERMINATION OF
PREGNANCY ACT(1971)
On 21 April 2014, the Supreme Court ordered the Union of India and the State of Maharashtra to respond to
fundamental rights violations resulting from implementation of The Medical Termination of Pregnancy Act
(1971). A Writ Petition filed by the Human Rights Law Network (HRLN) on behalf of Mrs. X and Mrs. Y
argues that the outdated and arbitrary 20-week limit on medical termination of pregnancy violates women’s
fundamental rights to life, health, dignity, and equality.

At her first antenatal checkup, doctors told Mrs. X that her fetus had severe abnormalities and would not
survive more than a few hours after delivery. Mrs. X was 26 weeks pregnant and therefore could not legally
obtain a medical termination of pregnancy under the MTP Act. Mrs. X was forced to continue the
pregnancy, visit the hospital regularly, and participate in social events to celebrate the birth of her child, all
while carrying a fetus that she knew could never survive. After three days of excruciating labor pains, Mrs.
X delivered a baby that ultimately died less than three hours later. In her affidavit Mrs. X states, “The
whole process was extremely painful. In normal circumstances a mother goes through all the discomfort
just for the joy of giving birth to the baby. However in my case there was no joy as I was aware of the poor
outcome of the baby. All this could have been avoided if my pregnancy was terminated in time.”

In the 19th week of her pregnancy, doctors told Mrs. Y that her foetus may have had a congenital
malformation characterized by partial absence of brain tissue. Additional test results would not be available
until after the 20th week of pregnancy. Under the limits imposed by the Medical Termination of Pregnancy
Act, Mrs. Y was forced to make the excruciating decision to terminate her pregnancy without a full
understanding of the medical facts. Out of the 26 million births that occur in India every year,
approximately 2-3% of the foetuses have a severe congenital or chromosomal abnormality. With new
technology, many abnormalities can be detected only after 20 weeks. India’s MTP Act only allows
termination post-20 weeks to save the life of the pregnant woman. Most countries with legal abortion allow
termination post 20 weeks in the case of severe fetal abnormalities or to protect the mental or physical
health of the pregnant woman. For years, the National Commission for Women, Federation of Obstetric and
the Gynaecological Societies of India (FOGSI), and prominent doctors have advocated for amendments to
the MTP Act that would ensure protections of women’s mental and physical health throughout their
pregnancies. Without such an exception to ensure the health of pregnant women, the MTP Act violates
fundamental and human rights guaranteed by the Constitution of India and international law.

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SAVITA HALLAPANAVAR CASE OF ABORTION

Last November, we witnessed the death of a 31 year old Indian woman, Savita Hallapanavar, in Ireland,
after doctors refused to give her an abortion 17 weeks into pregnancy, which created quite a huge furore in
the Indian and Irish media. The reason for such a hue and cry was the reason that the doctors cited for their
inability to perform an abortion – that Ireland, being a Catholic country, they are obligated not to take the
life of a foetus. It is the growing perception that Ireland is being governed by a legal regime that encourages
doctors to consider the repercussions of taking the life of a foetus even if it at the cost of the life of the
mother, thereby keeping in tune with the ideals of the largely Catholic constitution of the country. It is
pervaded by a religious dogma that is disrespectful to non believers and demonstrates utter disregard for the
life of a mother as opposed to the ‘life’ of a yet-to-be- born baby.

The debate in this issue basically boils down to pro-choice and pro-life support. The pro- choice and pro-
life antagonists argue over whether a woman should have the right to abort a pregnancy when she decides
that she is either unable or unwilling to invest a lifetime of resources in the foetus that she is carrying. The
pro-life proponents claim that such an act is equivalent to murder because the foetus must be considered a
viable human being from the time of conception. The pro-choice proponents, on the other hand, advocate a
woman’s rights to control her own body, her right to an induced abortion, especially when her own life is in
danger. They argue that when the foetus is detrimental to the survival of the pregnant woman, she should be
allowed to choose whether she wants to save her own life herself by exercising her natural rights over her
own life and body or she wants to try saving her baby.

In this perspective, it is interesting to examine the position and awareness of the issue of abortion laws in
India. In other societies, activists talk about the abortion as something that also involves the ending of a
potential human life. However, here, we do not discuss the issue of women’s reproductive rights and
abortion on terms of pro-life and pro-choice. We don’t talk and argue about the rights of the mother vis-à-
vis those of the unborn baby. In our society, abortion is more of a visceral and possibly sentimental issue,
and the causes leading to abortion are looked down upon as things that are extremely shameful for a
woman, by the so-called moral guardians of the society. Here, the topic of a case of abortion and the factors
leading to it are discussed in a hushed whisper, a disapproving tone and cluck of the tongue.The Medical
Termination of Pregnancy Act was enacted in 1971 and was suitably amended in 1975. The Indian law

empowers women with a choice of abortion in the event of contraceptive abortion, all pregnancies- not just
those that endanger the health of mother or foetus, or resulting from rape –- can be terminated legally.
Technically, any woman above the age of 18 can have an abortion with nobody’s consent but her own and

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her doctor’s. However, like several of our laws designed to directly impact the lives of women in ostensibly
positive ways, what is real on paper is not nearly as effective in practice. Just like other major women
centric laws in India, that prohibit pre-natal sex determination, dowry, women’s education; legislative
protection in the field of reproductive and abortion rights also does not translate to reality.

Abortion exists in India. Indian society also strongly encourages it, but hardly when the life of the mother is
in danger. Many conservative families in patriarchal Indian families urge the mother to go for abortion,
when they get the information through illegal scans that the ensuing baby is a girl child; or when, some
woman from the family has got pregnant before marriage. That is when abortion ceases to be an issue
which champions a feministic point of view, but rather turns detrimental from a perspective of women’s
rights.

As mentioned earlier, the issue of abortion in India is not based on the pro-life and pro-choice divide which
debates, elsewhere in the world are based on. From a strictly legal point of view, abortion in India is pro-
choice. The fact that India has been plagued by the disturbing facets of overpopulation demands, legality of
abortion is a practical solution. The primary reason why abortion is legal in India has only little coherence
with it being a basic, personal right and has more to do resources and development. Moreover, in the Indian
society, where unwanted pregnancy is a social taboo, had abortion not been legal, it would have led to
problems galore. Many a woman would have been forced to go for abortions in clandestine and unsafe
medical conditions, to avoid ‘social shame’. That in turn, would have led to gross violations of the law
coupled with dangerous medical consequences, possibly even death. However, one of the primary
objectives of such a law is to remove the tag of taboo attached with the topic of abortion in the Indian
society, something which hasn’t been achieved yet.

Keeping the legality of the issue aside, we need to ponder over as to why, incidents related to abortion and
unwanted pregnancy are rarely regarded as anything other than shameful events, slips of judgement or
symptoms of malaises in the society.
In India, only few sections of the society think on the lines of unwanted pregnancies being a simple biological
occurrence, which can be dealt with, safely and quickly, thanks to the bludgeoning medical technology.
Rather, they seem to imagine abortion as an undesirable yet inevitable consequence, resulting from lack of
moral standards of a woman.

Ultimately, legislation is not the only and moreover, effective tool to ensure that women are aware of and
have easy access to their reproductive rights. We have to move beyond the black letter of the law to address
such an issue, which is so central to women’s rights. The law is worth its salt when women can go for
abortions without being branded sluts, without any sort of social repercussions. Of course, there should be

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room enough for debate on whether a mother’s life should be given primary importance as opposed to that
of the foetus or an unborn baby. The medical safety aspect of abortion cases should also be taken into
consideration, while discussing the issue. Furthermore, the logistical problems of abortions being legalized
and its potential subsequent misuse should also be open to debate, especially in a society like that of India’s,
where the frequency of cases in which female foetuses are surgically killed even when there is no iota of
danger to the mother’s life, is far too high. But seeing the topic of abortion and reproductive rights of
women as a social taboo doesn’t really make much sense.30

30
How Savita Halappanavar’s Death Spurred Ireland’s Abortion Rights, available on: www.nytimes.com (Last visited on May 03,
2021)
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CONCLUSION

The move forward in the direction of reproductive rights becoming a reality is very slow in India. There is a
lot that needs to be done to make use of all that has already been done. In other words, one cannot deny that
there are policies and schemes in place to help women; the thing that needs to be done is the proper
implementation of it.

The abortion laws are in favour of women who aren’t adept in raising a child, but there is no use of such a law
if it is overturned by judgments. Safe abortion is also the need of the hour, which begs the question that if
abortion is legal then why it isn’t regulated. There should be guidelines for not just the women seeking
abortion but also the hospitals and doctors rendering medical help. This will not only make sure that there is
legal abortion, but also that there isn’t sex selective abortion and that the services rendered are safe to the
women and that all options are made available to them.

The same holds true for reducing the maternal mortality rate in India. Also, there need to be more
infrastructural facilities and medical hands to keep up with the population. If the government realises the need
to sterilize women because of the population, it must acknowledge the needs of the population already
present. Also, there needs to be awareness about the various schemes, such as National Maternity Benefit
Scheme (NMBS), Integrated Child Development Scheme (ICDS) and Janani Soraksha Yojana (JSY), that are
designed to reduce maternal and neo-natal mortality by encouraging institutional delivery for poor pregnant
women.

India’s abortion laws are indeed meant to help emancipate its women-folk, its application and substantive
elements suffer from some serious follies. There is a need to update MTP Act to bring it in consonance with
modern day technology and medical methods. There is also a need to amend POCSO Act to do away with its
clash with MTP Act. India’s medical and legal infrastructure too needs improvement. Therefore, the need of
the hour is for government and elements of civil society to come together and improve the substantive and
implementation elements of India’s abortion laws and policy.

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BIBLIOGRAPHY
WEBSITES REFERRED

 https://www.jstor.org
 http://www.feminismindia.com
 https://cambridge.com
 https://www.gale.com
 https://www.tandfonline.com
 www.lateslaws.com
 https://scconline.com
 https://www.theleaflet.in
 www.thewire.in
 www.livemint.com
 https://www.hindu.com
 www.downtoearth.org.in
 www.indianexpress.com
 www.nytimes.com

STATUES REFERRED
 Indian Penal Code, 1860
 The Constitution of India
 The Code of Criminal Procedure 1973

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