The Medical Termination of Pregnancy Act

Abortion is a medical procedure to end a pregnancy. It uses medicine or surgery to remove the embryo or fetus and placenta from the uterus. The procedure is done by a licensed health care professional. Section 312 of the Indian Penal Code provides a penal provision for the illegal and unlawful termination of pregnancy. This provision punishes the mother as well as the person who causes termination of pregnancy except when it is caused to save the life of the mother. In this article, we shall study provisions of the Medical Termination of Pregnancy Act, 1971

Historical Background:

Shantilal Shah Committee in 1964 recommended the liberalization of abortion laws to make them more effective and to reduce the unsafe abortions and maternal mortality rates which were associated with illegal abortions. On the basis of the Shantilal committee report submitted in December 1966, a medical termination bill was introduced in both the Lok Sabha and Rajya Sabha and was passed by the parliament in 1971.  This Act is applicable to the whole of India. This Act has been in force with effect from 1^st April 1972. The act was further revised in the year 1975 to make it less complicated and more effective.

Objects of Medical Termination of Pregnancy Act, 1971:

There are situations in pregnancy, such that the life of the mother or the life of the child in the womb, is in danger. This Act has been enacted mainly with a view to save the life of the mother. Under this Act, the pregnancy of the mother can be terminated

• On medical grounds, like when the physical or mental health of the mother is at risk;
• On humanitarian grounds, like when there is a forced pregnancy because of rape;
• There is a possibility of the birth of a deformed child.

Features of Medical Termination of Pregnancy Act, 1971:

• Under this Act, the pregnancy of the mother can be terminated

1. On medical grounds, like when the physical or mental health of the mother is at risk;
2. On humanitarian grounds, like when there is a forced pregnancy because of rape;
3. There is a possibility of the birth of a deformed child.

• Only Registered Medical Practitioner can perform treatment of termination of pregnancy in good faith at hospitals maintained by the Government or approved by the Government in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971.

• Any illegal termination of pregnancy is punishable under this Act and under the Indian Penal Code, 1872.
• The Act does not permit termination of pregnancy after 20 weeks. The medical opinion must off course be given in “good faith”. The term good faith has not been defined in the Act but sec. 52 if the IPC defines good faith to mean as an act done with ‘due care and caution’.

Important Definitions Under the Act:

Guardian: According to Section 2(a) of the Act, “guardian” means a person having the care of the person of a minor or a lunatic.

Lunatic: According to Section 2(d) of the Act, “lunatic” has the meaning assigned to it in Section 3 of the Indian Lunacy Act, 1912.

Minor: According to Section 2(d) of the Act, “minor” means a person who, under the provisions of the Indian Majority Act, 1875, is to be deemed not to have attained his majority;

Registered Medical Practitioner: According to Section 2(d) of the Act, “registered medical practitioner” means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956, whose name has been entered in a State Medical Register and who has such experience of training in gynaecology and obstetrics as may be prescribed by rules made under the Medical Termination of Pregnancy Act, 1971.

Grounds When Medical Termination of Pregnancy is Allowed:

Section 3 of the Act, gives provisions when medical termination of pregnancy can be allowed. Termination of Pregnancy allowed under the Medical Termination of Pregnancy Act, 1971 is allowed if and only if the following conditions are satisfied.

1. A pregnancy may be terminated by a registered medical practitioner only. A registered medical practitioner should not be guilty of any offence which has been mentioned in the IPC or any other law during the time of the termination of pregnancy by him according to the provisions of the law;
2. Where the duration and time of pregnancy have not exceeded more than 12 weeks, in this case by the opinion of one medical practitioner in good faith;
3. Where the duration and time of pregnancy have exceeded 12 weeks but not the 20 weeks, in this case by the opinions of the two medical practitioners in good faith;
4. The continuation of the pregnancy will be a grave danger for a woman’s physical or mental health;
5. When there is anticipation that the child born out of this pregnancy will be prone to detrimental physical and mental health and will be handicapped.

• According to Section 3(4) of the Act the termination of pregnancy of a woman who has not attained the age of eighteen years, or, who, have attained the age of eighteen years, but is a lunatic, permission of the guardian is required. If the woman has attained the age of 18 years and is normal then her permission for termination of pregnancy is required.
• The procedure must be made in accordance with the Act at any place not other than – (a) a hospital established or maintained by the Government, or (b) a place for the time being approved for the purpose of this Act by the Government.

Explanation 1 attached to Section 3(2) says that where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Thus before taking the decision on the termination of pregnancy, mental anguish is to be taken into consideration. An allegation by the victim that she has been raped is sufficient. Further proof of rape like medical examination, trial, judgment is not necessary.

Explanation 2 attached to Section 3(2) says that where any pregnancy occurs as a result of the failure of any device or method used by any married woman or her husband for purpose of limiting the number of children the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. The Act says that mental anguish due to pregnancy due to contraceptive failure in a married woman is an indication.

Medical Termination of Pregnancy in Emergencies:

Exceptions are made for emergencies. Under section 5(1), a doctor may terminate a pregnancy if it is “immediately necessary to save the life of the pregnant woman”. In such situations, the requisites relating to the length of pregnancy, the need for two medical opinions, and the venue for operation do not apply. It is to be noted that Section 312 of the IPC permitted medical termination of pregnancy by anyone with the object of saving the life of the mother, but under MTPA only a doctor can terminate the pregnancy.

Places Where Medical Termination of Pregnancy Allowed:

According to Section 4 of the Act, the procedure of medical termination of pregnancy must be made in accordance with the Act at any place not other than – (a) a hospital established or maintained by the Government, or (b) a place for the time being approved for the purpose of this Act by the Government.

Power of Making Rules:

According to Section 6 of the Act, the Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

Power to Make Regulations:

According to Section 7 of the Act,

1. the State Government may by regulations:

(a) require any such opinion as is referred to in sub-section (2) of Section 3 to be certified by a registered medical practitioner or practitioners concerned, in such form and at such time as may be specified in such regulations, and the preservation or disposal of such certificates;

(b) require any registered medical practitioner, who terminates a pregnancy, to give intimation of such termination and such other information relating to the termination as may be specified in such regulations;

(c) prohibit the disclosure, except to such persons and for such purposes as may be specified in such regulations, of intimations given or information furnished in pursuance of such regulations.
2. The intimation given and the information furnished in pursuance of regulations made by virtue of clause (b) of sub-section (1) shall be given or furnished, as the case may be, to the Chief Medical Officer of the State.

3. Any person who willfully contravenes or willfully fails to comply with the requirements of any regulation made under sub-section (1) shall be liable to be punished with fine which may extend to one thousand rupees.

Action Taken in Good Faith:

The opinion of medical termination of pregnancy by the registered medical practitioner must be given in “good faith”. The term good faith has not been defined in the Act but sec. 52 if the IPC defines good faith to mean as an act done with ‘due care and caution’.

According to Section 8 of the Act, no suit or other legal proceeding shall lie against any registered medical practitioner for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act.

Conclusion: