The Medical Termination of Pregnancy Act, 1971-Law Notes
Introduction
In India during earlier days no medical facilities were adequate. For certain reasons if women wanted to terminate the pregnancy, they used to opt for abortion to prevent the birth of child, mainly birth of female child and in this process many have faced severe consequences to the extend of losing their lives. The termination of pregnancy used to be attended by quacks and unregistered and unqualified medical practioners and caused severe damage to health in many cases. Previously, abortion was considered as a crime for which mother as well as abortionist could be punished except in cases where it was found necessary to do it for saving life under section 312 to 316 of IPC. In spite of these penal provisions, abortions were continued in India for various social, medical and superstitious reasons. In recent years, health services are available everywhere and service hospitals with qualified doctors are available to all classes of people. The Government has liberalised certain provisions relating to termination of pregnancy to avoid loss of the mother;s health, strength and sometimes life. The Government enacted the “The Medical Termination of Pregnancy Act, 1971” to provide for the termination of pregnancy by registered medical practitioners to reduce a risk of life or grave injury to her physical and mental health.
List of Acts
The Medical Termination of Pregnancy Act, 1971. The Medical Termination of Pregnancy (Amendment) Act, 2002 The Medical Termination of Pregnancy Rules, 2003. The Medical Termination of Pregnancy (Amendment) Act, 2021.
Long Title of the The Medical Termination of Pregnancy Act, 1971
It states as, “An Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto”.
The Medical Termination of Pregnancy (MTP) Act was passed by the Indian Parliament on August 10, 1971. It officially came into force on April 1, 1972.It states as, “An Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto”.
Amendment of 2002
Statement of Objects and Reasons : The MTP Act, 1971 legalised termination of pregnancy on various socio-medical grounds. This Act is aimed at eliminating abortion by untrained persons in unhygienic conditions, thus reducing maternal mobidity and mortality. In 1997, an expert group was constituted to review the MTP Act, 1971 to make it more relevant. The National Commission for Women also suggested certain amendments. Taking into consideration the suggestions and experience of implimentation, expert group recommended certain amendments. Accordingly the bill provides for i) Substituting word ‘lunatic’ by the words ‘mentally ill person’. ii) Amending section 4 to delegating powers to the Central Government. iii) amending section 5 to prescribe punishments to unauthorised clinics and unregistered doctors.
The Medical Termination of Pregnancy (Amendment) Act, 2021
Statement of Objects and Reasons : The MTP Act, 1971 legalised termination of pregnancy on various socio-medical grounds. This Act is aimed at eliminating abortion by untrained persons in unhygienic conditions, thus reducing maternal mobidity and mortality. In 1997, an expert group was constituted to review the MTP Act, 1971 to make it more relevant. The National Commission for Women also suggested certain amendments. Taking into consideration the suggestions and experience of implementation, expert group recommended certain amendments. Accordingly the bill provides for i) Substituting word ‘lunatic’ by the words ‘mentally ill person’. ii) Amending section 4 to delegating powers to the Central Government. iii) amending section 5 to prescribe punishments to unauthorised clinics and unregistered doctors.
The Medical Termination of Pregnancy (Amendment) Act, 2021 is a significant change in the Indian law framework about abortion. For particular kinds of women, the Amendment increases access to abortion services by extending the permitted length of pregnancy termination from 20 to 24 weeks, therefore addressing medical risks or fetal defects. It also provides guidelines for teenagers and survivors of sexual assault, therefore granting them the right to get, under specific circumstances, safe and legal abortion services.is a significant change in the Indian law framework about abortion. For particular kinds of women, the Amendment increases access to abortion services by extending the permitted length of pregnancy termination from 20 to 24 weeks, therefore addressing medical risks or fetal defects. It also provides guidelines for teenagers and survivors of sexual assault, therefore granting them the right to get, under specific circumstances, safe and legal abortion services.
The Medical Termination of Pregnancy (Amendment) Bill, 2020
It provides for,— (a) requirement of opinion of one registered medical practitioner for termination of pregnancy up to twenty weeks of gestation; (b) requirement of opinion of two registered medical practitioners for termination of pregnancy of twenty to twenty-four weeks of gestation; (c) enhancing the upper gestation limit from twenty to twenty-four weeks for such category of woman as may be prescribed by rules in this behalf; (d) non applicability of the provisions relating to the length of pregnancy in cases where the termination of pregnancy is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board; (e) protection of privacy of a woman whose pregnancy has been terminated.
Definitions
Definitions : Section 2 provides definition of few words as
(a) “guardian” means a person having the care of the person of a minor or a mentally ill person;
(aa) “Medical Board” means the Medical Board constituted under sub-section (2C) of section 3 of the Act;
(b) “mentally ill person” means a person who is in need of treatment by reason of any mental disorder other than mental retardation;
(c) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is to be deemed not to have attained his majority;
(d) “registered medical practitioner” means a medical practitioner who possesses any recognised medical qualification as defined in clause (h) of section 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 gynaecology and obstetrics as may be prescribed by rules made under this Act.
(e) “termination of pregnancy” means a procedure to terminate a pregnancy by using medical or surgical methods.
Abortion, though not defined in the Act, it means, a medical termination of pregnancy i.e. the expulsion of a embryo or fetus from the uterus before it has reached the stage of viability (in human beings, usually about the 20th week of gestation). An abortion may occur spontaneously, in which case it is also called a miscarriage, or it may be brought on purposefully, in which case it is often called an induced abortion.
When pregnancies may be terminated by registered medical practitioners.
Section 3 of the Act states that,Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
Further section 3 states that, a pregnancy may be terminated by a registered medical practitioner,where the length of the pregnancy does not exceed twenty weeks,in his opinion or,where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules,not less than two registered medical practitioners are, of the opinion, formed in good faith, that- (i) 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 (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.
Two Explanations to section 3 states that, where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. And secondly, where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Two restrictions stated in section 3 are, firstly, 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 mentally ill person, shall be terminated except with the consent in writing of her guardian.And secondly, no pregnancy shall be terminated except with the consent of the pregnant woman.
Protection of action taken in good faith
As per section 8, 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.
Place where pregnancy may be terminated
According to section 4 of this Act no termination of pregnancy shall be made in accordance with this Act at any place other than (a) a hospital established or maintained by Government, or (b) a place for the time being approved for the purpose of this Act by Government.
Approval of a Place
Under rule 4 of the Medical Termination of Pregnancy Rules, 1975, no place shall be approved (i)Unless the Government is satisfied that termination of pregnancies may be done there in under safe and hygienic conditions; and (ii)Unless the following facilities are provided therein namely: (a) an operation table and instrument for performing abdominal or gynecological surgery; (b) anesthetic equipment resuscitation equipment and sterilisation equipment; (c)drugs and parenteral fluids for emergency use. Rule 5 provides for the provisions relating to inspection of place and rule 6 provides provisions for cancellation or suspension of certificate of approval.
Non-applicability of section 3 and 4 of The MTP act, 1971
As per section 5 of the Act, The provisions of section 4, and so much of the provisions of section 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 a registered medical practitioner in a 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.
Protection of privacy of a woman
Section 5A provides that, No registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force and whoever contravenes this provisions shall be punishable with imprisonment which may extend to one year, or with fine, or with both.
Power to make rules
As provided by section 6, The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act and section 7 empowers the State Government to make regulations.
Punishment
- Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of pregnancy by a person who is not a registered medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years under that Code, and that Code shall, to this extent, stand modified.
- Whoever terminates any pregnancy in a place other than that mentioned in section 4, shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.
- Any person being owner of a place which is not approved shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.