Hypothesis: To examine the existing law pertaining to the Medical Termination of Pregnancies in India and to analyze its implementation and interpretation and to further examine the reforms and improvements suggested for the same.
In India, the practice of abortion or termination of pregnancy has always been a sensitive issue. Until 1971, the Indian Penal Code, 1860 criminalized the practice of abortion, also described as “voluntary miscarriage”, unless it was for the purpose of saving the life of the mother and it was done in good faith[1]. The Medical Termination of Pregnancy Act, 1971[2] (hereinafter referred to as ‘The Act’), provided a much-needed legislation for dealing with the concept of abortion in India. It was enacted to “provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto”. The Act provides that an abortion cannot take place without the consent of the woman unless she is a minor[3] or a lunatic[4] in which case it can be done only with the consent of her guardian[5].
Section 3(2) of The Act provides that a registered medical practitioner[6]can perform an abortion where the length of the pregnancy does not exceed twelve weeks. However, if the length of the pregnancy does not exceed twenty weeks an abortion can be performed if it is done by not less than two registered medical practitioners. In both the aforementioned situations, it must be done in good faith and in the belief that it poses a risk to the life of the woman or grave physical or mental injury and/or if the child were to be born, it would suffer from physical or mental abnormalities so as to be seriously handicapped. A woman is said to suffer such physical or mental injury if the pregnancy is caused by rape or by the failure of any medical device for limiting the number of children. The provisions of this section do not apply if an abortion is immediately necessary to save the life of the woman[7]. Thus, it may be inferred that termination of pregnancy is not a right. It can be done only at the discretion of the doctors or at the direction of the court, as the case may be.
In the case of Chandrakant Jayantilal Suthar v. State of Gujarat [8], a 14-year-old girl who was suffering from typhoid was raped by her doctor. In view of the fact that the pregnancy was over 20 weeks, the Sessions Court declined to accord permission for the termination of the pregnancy. The learned counsel for the petitioners then preferred an appeal to the Hon’ble Gujarat High Court. He submitted that the victim was a student of class X and that if she was to follow through with the pregnancy, it would cause her physical, mental and psychological trauma and in lieu of ‘Explanation I’ provided to Section 3(2) of The Act, wherein rape was said to constitute grave injury to her physical and mental health. She was within the legally permissible limits to terminate the unwanted pregnancy. Furthermore, the blood report of the victim showed deficiency which could be harmful during child birth. The High Court sympathized with the petitioner but observed that “the law is the law, and has to be obeyed” and that “the intention of the legislature in enacting the statute is evident from the language employed”. The Court was unable to accept the argument of the learned counsel with relation to the Explanation I to Section 3(2) of The Act on the ground that such a submission could have been accepted if the pregnancy had not exceeded the 20-week limit. Furthermore, termination of the pregnancy was not immediately necessary to save the life of the girl. Nonetheless, the Court sympathized with the trauma faced by the girl and directed the State Government to extend all the assistance required by her in birthing as well as raising the child. The Court further directed compensation to be paid to her. In light of this decision, the learned counsel for the Petitioner further preferred an appeal to the Hon’ble Supreme Court of India which directed that the girl should yet again be examined by the team of doctors directed by it, in order to examine whether an abortion was immediately necessary to save her life. If the same was discovered, the doctors were to perform an abortion without any further permission from the Court. However, if there was no unanimity among them, then the majority view shall prevail. Thus, it may be observed that the Supreme Court was willing to allow an abortion beyond the 20-week period keeping in mind the trauma suffered by the victim.
One might also study the case of Meera Santosh Pal & Ors. v. Union of India & Ors.[9] the Petitioner No.1, Meera Santosh Pal, was a 22-year-old woman who approached the Hon’ble Supreme Court under Article 32 of the Constitution for permission to terminate her pregnancy on the ground that the fetus suffered from Anencephaly. It is a condition in which the skull brain of the fetus is unformed which could cause danger to its life during or immediately after child birth. It also posed risk to the life of the mother. The woman was in her 24th week of pregnancy. The court directed her to be examined by a team of doctors appointed by it. Upon examination, it was discovered that the fetus would not be in a position to survive. The Court held that “The crucial consideration in the present case is whether the right to bodily integrity calls for a permission to allow her to terminate her pregnancy. The report of the Medical Board clearly warrants the inference that the continuance of the pregnancy involves the risk to the life of the pregnant woman and a possible grave injury to her physical or mental health as required by Section 3 (2)(i) of the Medical Termination of Pregnancy Act, 1971. Though, the pregnancy is into the 24th week, having regard to the danger to the life and the certain inability of the fetus to survive extra uterine life, we consider it appropriate to permit the Petitioner to terminate the pregnancy.” Thus, in the zeal to preserve the right to life under Article 21 of the Constitution, the Court permitted her to abort the fetus despite the fact that it the pregnancy exceeded the 20-week period.
It will also be beneficial to study the case of Savita Sachin Patil and Anr. v. Union of India and Ors.[10] the Petitioner, a 37-year old woman, in her 26th week of pregnancy, approached the Hon’ble Supreme Court under Article 32 of the Constitution seeking termination of her pregnancy. Upon her medical examination, the fetus was diagnosed with down syndrome. However, the medical report stated that there was no danger to the life of the mother. The Court refused to grant permission to the petitioner to terminate the pregnancy on the ground that there was no danger to the life of the mother or the child. The only problem faced by the child would be the possibility of low intelligence of which a discernible medical report cannot be produced.
Recently, Advocate Alakh Alok Srivastava filed an application before the Hon’ble Supreme Court of India seeking permission to terminate the pregnancy of a 10-year old girl who was repeatedly raped by her maternal uncle[11]. He argued that she was but a child and her body wasn’t capable of bearing a child. If she was subjected to such an ordeal, she would suffer immensely physically because her pelvic bones were not fully developed. Furthermore, her economic condition was such that her family could not take on the financial burden of raising the child. When the victim was subjected to a medical examination, it was found that her pregnancy had far exceeded the permissible 20-week limit and the medical report revealed that an abortion was “neither good for the mother nor the fetus.” Hence, the Court refused to grant her permission to abort the child primarily trying to safeguard the constitutional principle of the right to life. However, the Court asked the state to provide all the medical assistance possible to the child and directed the Government to consider setting up medical boards in every state so that they can take prompt decisions on abortion thereby saving the family the hassles of wasting time in approaching the Supreme Court on the issue.
Thus, it may be observed that the main conflict pertaining to abortion arises from the notion that the unborn child has a right to life. This right is embodied under Article 21 of the Constitution which states that “No person shall be deprived of the right to life and personal liberty except according to the procedure established by law.” It is pertinent to note in this regard the landmark case of Roe v. Wade[12], in which an unmarried pregnant woman (Roe) along with a few others who were similarly situated, challenged the constitutional validity of the Texas Statute Law which criminalized the practice of procuring an abortion unless it was for the purpose of saving the life of the mother. Roe alleged that the statute violated her right to privacy and she was unable to procure an abortion legally because the continuation of her pregnancy did not appear to endanger her life. The Supreme Court ruled that the Texas Criminal Abortion Statutes were vague and violated the Plaintiff’s rights under the Ninth[13] and Fourteenth[14] amendments of the Constitution of the United States of America. It held that the life of the fetus is only a ‘potential life’ and thus, it does not have any constitutional right of its own. During the first trimester, the decision to abort must be left to the pregnant woman’s physician alone. Therefore, her right to privacy is strongest. During the second trimester, the state may regulate the abortion procedure keeping in mind the interest of the mother. During the third trimester, the state may, in the interest of preserving human life, regulate or even proscribe an abortion. Thus, her right to privacy gets weaker and her child’s right to life gets stronger as her pregnancy gets longer.
Noticing the judicial trend that most abortions were being allowed even after the 20-week limit, The Draft Medical Termination of Pregnancy (Amendment) Bill, 2014[15], (hereinafter referred to as ‘The Bill’), was proposed. A significant reform that this Bill seeks to introduce is the concept of independent discretion to the pregnant woman. It provides that the pregnancy may be terminated at the request of the woman provided that the length of the pregnancy does not exceed 12 weeks[16]. Another major change suggested by this Bill is that the period during which an abortion can take place should be extended from the 20-week limit to a 24-week limit i.e., an abortion can take place up to the 24th week of pregnancy[17]. Furthermore, the provisions of Section 3(2) as related to the length of the pregnancy shall not apply where such termination is necessitated by the diagnosis of any of the substantial fetal abnormalities as may be prescribed[18]. Moreover, the Bill seeks to expand the terminology and definition of registered medical practitioners to registered health care providers so as to include Ayurveda, Unani or Siddha, any person who possesses a qualification in homeopathy and a nurse or midwife who possess a qualification in the same. Unfortunately, this Bill has not yet seen the light of day.
Conclusion and Suggestions: From a perusal of the aforementioned case laws as well as The Act, it may be observed that the law in India pertaining to abortion is in urgent need of reform. The period of 20 weeks has not proved to be sufficient to determine various fetal abnormalities and therefore, needs to be extended. Even if a woman succeeds in identifying any threat posed to the fetus within the said period, she has in many circumstances been unable to get a speedy verdict to abort it. The changes proposed in the Bill would play a fundamental role in meting out justice to the women by extending the period of termination as well as by giving them greater discretion in the matter. It would also be judicious to establish various medical boards in each state or such other places as may be convenient by the government to take quick decisions in matters pertaining to the termination of pregnancies so as to save the women and their families from the process of approaching the Supreme Court in the matter, for that is the usual trend that has been noticed. The effort to broaden the scope of a medial practitioner under the Bill is laudable for it seems that notice has been taken of the fact that the availability of doctors as described under The Act as compared to the population is insufficient. Nonetheless, the efforts made by the Courts to protect the life of the mother and provide her with the option to abort as far can be possible while at the same time safeguarding the right to life of the unborn child are praiseworthy.
-Rakhee Menon, V-V
END NOTES
[1]Section 312 of the IPC,1860 provides 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.”
[2]Act No. 32 of 1971
[3]Defined under The Indian Majority Act, 1875 as a person who has not yet attained the age of 18 years
[4]Defined under The Indian Lunacy Act, 1912 as an idiot or a person of unsound mind
[5]Section 3(4) of the Act provides that (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian. (b) Save as otherwise provided in C1. (a), no pregnancy shall be terminated except with the consent of the pregnant woman.
[6]Section 2(d) of the Act defines a “registered medical practitioner” as a medical practitioner who possesses any recognized medical qualification as defined in Cl.(h) of Sec. 2 of the Indian Medical Council Act, 1956 (102 of 1956), whose name has been entered in a State Medical Register and who has such experience or training in gynecology and obstetrics as may be prescribed by rules made under this Act.
[7]Section 5(1) of The Act states that “The provisions of Sec.4 and so much of the provisions of sub-section (2) of Sec. 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.”
[8]Special Criminal Application No. 4255 of 2015in the Gujarat High Court and Special Leave to Appeal (Crl.) No(s).6013/2015 in the Supreme Court
[9]Writ Petition (Civil) No. 17 of 2017 in the Hon’ble Supreme Court of India
[10]Writ Petition (Civil) No.121/2017 in the Hon’ble Supreme Court of India
[11]The details of this case have not been made public to protect the identity of the victim and so the author has relied on news reports covering the incident
[12]410 U.S. 113 (1973)
[13] The Ninth Amendment states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
[14]The Fourteenth Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
[15]http://www.prsindia.org/uploads/media/draft/Draft%20Medical%20Termination%20of%20Pregnancy%20Amendment%20Bill%202014.pdf
[16]Section 3(2)(a) of the Bill provides that subject to the provisions of sub-section (4) a pregnancy may be terminated by a registered health care provider on the request of a woman, where the length of the pregnancy does not exceed twelve weeks.
[17] Section 3(2)(b)(ii) of the Bill provides that subject to the provisions of sub-section (4) a pregnancy may be terminated by a registered health care provider where the length of the pregnancy exceeds twenty weeks but does not exceed twenty- four weeks and the woman falls in one of the categories as may be prescribed.
[18] Section 2( e) of the Bill states that prescribed means prescribed by the Rules made under this Act.