Before 1971, abortion was criminalized under Section 312 of the Indian Penal Code, 1860, describing it as intentionally “causing miscarriage”. Except in cases where abortion was carried out to save the life of the woman, it was a punishable offense and provided for a punishment of 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.
It was only in the 1960s, when abortion was legalized in 15 countries, that deliberation on a legal framework for induced abortion in India was initiated. The alarmingly increased number of abortions taking place put the Ministry of Health and Family Welfare (MoHFW) on alert. To address this, the government of India instated a committee in 1964 led by Shantilal Shah to come up with suggestions to draft the abortion law for India. The recommendations of this committee were accepted in 1970 and introduced in the Parliament as the Medical Termination of Pregnancy Bill. This bill was passed in August 1971 as the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as MTP Act, 1971).
INDIAN PENAL CODE, 1860
Section 312 of The Indian Penal Code, 1860 states “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. Explanation—A woman who causes herself to miscarry, is within the meaning of this section.”
Further, Section 313 of the Indian Penal Code, 1860 states “Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Till 1971, abortion was criminalized under these provisions, after which The Medical Termination of Pregnancy Act, 1971 was passed and with the introduction of the non-obstante clause in Section 3 of the Act, abortion in certain situations as mentioned under the Act, became an exception to the abovementioned sections of Indian Penal Code, 1860.
MEDICAL TERMINATION OF PREGNANCY ACT, 1971 AND RULES, 1975
The MTP Act 1971, under Section 3(2) confers full protection to a registered medical practitioner against any legal or criminal proceedings for the act of terminating the pregnancy, provided that the abortion was done in good faith under the terms of the Act. The Act allows an unwanted pregnancy to be terminated up to 20 weeks of pregnancy, and requires a second doctor’s approval if the pregnancy is beyond 12 weeks.
Section 3 of the MTP Act, 1971 further states the grounds for seeking abortion which include grave risk to the physical or mental health of the woman in her actual or foreseeable environment, as when pregnancy results from contraceptive failure, or on humanitarian grounds, or if pregnancy results from a sex crime such as rape or intercourse with a mentally-challenged woman, or on eugenic grounds, where there is reason to suspect substantial risk that the child, if born, would suffer from deformity or disease.
Section 4 stipulates the place where pregnancy may be terminated and states that any hospital maintained by the Government shall perform abortions, but requires approval or certification of any facility in the private sector.
Section 5 provides an exception to the above law in the event of abortion in case the termination of pregnancy is immediately necessary to save a pregnant woman’s life. The section provides that the doctor need not have the stipulated experience or training but still needs to be a registered medical practitioner and a second opinion is not necessary for abortions beyond 12 weeks and the facility need not have prior certification.
The Medical Termination of Pregnancy Rules, 1975 define the criteria and procedures for approval of an abortion facility, procedures for consent, keeping records and reports, and ensuring confidentiality. Any termination of pregnancy done at a hospital or other facility without prior approval of the Government is deemed illegal and the onus is on the hospital to obtain prior approval.
MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2002
The Medical Termination of Pregnancy (MTP) Act 1971 was amended in 2002 to facilitate better implementation and increase access for women especially in the private health sector.
- Under Section 4 of the Medical Termination of Pregnancy (Amendment) Act, 2002, the process of approval of a private place to offer abortion services to the district level was decentralized. Earlier, the approval of government was required but now, the district level committee is empowered to approve a private place to offer Medical termination of pregnancy services in order to increase the number of providers offering comprehensive abortion care services in the legal ambit.
- Under Section 2 of the Medical Termination of Pregnancy (Amendment) Act, 2002, the word ‘lunatic’ was substituted with the words “mentally ill person”. This change in language was instituted to lay emphasis that “mentally ill person” means a person who is in need for treatment by reason of any mental disorder other than mental retardation.
- Under Section 5 of the Medical Termination of Pregnancy (Amendment) Act, 2002, for ensuring compliance and safety of women, stricter penalties were introduced for medical termination of pregnancies being conducted in unapproved sites or by untrained medical providers by the Act.
MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021
In the case of Nikhil Datar versus Union of India1, the court heard the case brought before the court by the doctor along with his client seeking permission to terminate pregnancy at 24 weeks due to complications in the baby’s health. The court heard and favored the petitioners. This brought the 2020 amendment to the MRT Act, which basically extended the time limit of having an abortion from 20 weeks of pregnancy to 24 weeks of pregnancy in cases where the baby’s health rises complications.
The Medical Termination of Pregnancy Act, 1971 was further amended in 2021 to make the act more contemporary. Parliament passed the Medical Termination of Pregnancy (Amendment) Act and it has come into force with effect from 24th September 2021. The Act sought to amend certain provisions of MTP Act, 1971.
The Amendments are as below:
- MARRIED CLAUSE DROPPED – The MTP Act earlier permitted termination of the pregnancy by only a married woman in the case of failure of contraceptive method or device. With the amendment under Section 3(2) of the Medical Termination of Pregnancy (Amendment) Act, 2021, unmarried women can now seek safe abortion services on grounds of contraceptive failure.
- INCREASE IN GESTATION LIMIT – Under the MTP Act 1971, the time limit for terminating pregnancy was up to 12 weeks on the advice of one doctor and up to 20 weeks on the advice of two doctors. Moreover, post 20 weeks terminating pregnancy was not permitted. However, now under Section 3 of the Medical Termination of Pregnancy (Amendment) Act, 2021 all women can terminate pregnancy up to 20 weeks on the advice of one doctor and special categories of women (survivors of sexual abuse, minors, victims of rape, incest, disabled women) can seek termination up to 24 weeks. Moreover, women/couples can seek termination of pregnancy, anytime during the gestation period for foetal anomalies, as diagnosed by the Medical Boards.
- MEDICAL BOARDS – Under Section 3(2C) of the Medical Termination of Pregnancy (Amendment) Act, 2021, it has been mandated to constitute Medical Boards in all the states and union territories for diagnosing substantial foetal anomalies. The Board will decide if a pregnancy may be terminated after 24 weeks and each board will have a gynecologist, radiologist/sonologist, pediatrician and other members notified by the government.
- CONFIDENTIALITY – Under Section 4 of the Medical Termination of Pregnancy (Amendment) Act, 2021, it was introduced that a registered medical practitioner may only reveal the details of a woman whose pregnancy has been terminated to a person authorized by law. Violation is punishable with imprisonment up to a year, a fine, or both.
