ARMY INSTITUTE OF LAW, MOHALI

PROJECT ON “Medical Termination on Pregnancy Act 1971”

Project Submission in the Partial Fulfillment of Periodic Evaluation of Health Law.

Submission To: Submitted By:

Dr KIRANDEEP KAUR AKASH TIWARI
FACULTY: 7th SEMESTER B.A. LL.B.

HEALTH LAW ROLL NO: - 1735

 ACKNOWLEDGEMENT

This project consumed a huge amount of work, research, and dedication. I would like to express
my deepest appreciation to all those who provided me with the possibility to complete this
project work.
Sincere gratitude to our Professor, whose superior knowledge and contribution in stimulating
suggestions helped me to coordinate my full effort in achieving the project.
Furthermore, I would also like to acknowledge with much appreciation the crucial role of
management of Army Institute of Law, who gave the permission to use all required equipment
and necessary material to complete this task of research.

AKASH TIWARI
Roll No. – 1735
 INTRODUCTION TO MTP ACT, 1971
During the last thirty years many countries have liberalized their abortion laws. The worldwide
process of liberalization continued after 1980. Today only 8% of the world's population lives in
countries where the law prevents abortion.1 Although the majority of countries have very
restricted abortion laws, 41% of women live in countries where abortion is available on request
of women.2 In India, Shantilal Shah Committee (1964) recommended liberalization of abortion
law in 1966 to reduce maternal morbidity and mortality associated with illegal abortion. On
these bases, in 1969 Medical termination of pregnancy bill was introduced in Rajya Sabha and
Lok Sabha and passed by Indian Parliament in August 1971.3 Medical Termination of
Pregnancy Act, 1971 (MTP Act) was implemented from April 1972. Implemented rules and
regulations were again revised in 1975 to eliminate time consuming procedures for the approval
of the place and to make services more readily available. The MTP Act, 1971 preamble states
“an Act to provide for the termination of certain pregnancies by registered medical practitioners
and for matters connected therewith or incidental thereto”.4
Abortion has been legal in India since 1971, when the Medical Termination of Pregnancy Act
was passed. The law is quite liberal, as it aims to reduce illegal abortion and maternal mortality.
An abortion can be performed in India until the 20th week of pregnancy. The opinion of a
second doctor is required if the pregnancy is past its 12th week.
The Medical Termination of Pregnancy Act was amended in 2002 and 2003 to allow doctors to
provide mifepristone and misoprostol (also known as the “morning-after pill”) on prescription
up until the seventh week of pregnancy.5
Procedure
Abortions can be performed in any medical institution that is licensed by the government to
perform medically assisted terminations of pregnancy. Such institutions must display a
certificate issued by the government.
WHAT IS ABORTION?

Abortion may be classified into two categories depending upon the nature and circumstances
under which it occurs : (a) Spontaneous, which is technically referred to miscarriage, and (b)
Induced, which means voluntary miscarriage. Falling under the first category is not punishable,
1
Sushella Singh, Abortion Worldwide 2017: Uneven Progress and Unequal Access, Guttmacher Institute,
(6Sep,2020,10:32PM), https://www.guttmacher.org/report/abortion-worldwide-2017

2
The World’s Abortion Laws, Centre for Reproductive Rights, (6Sep,2020, 12:17PM),
https://reproductiverights.org/worldabortionlaws
3
Dr. Saroj Kumar Singh, Women Rights in India under Legal provisions, 115, (Red shine publication 2017).
4
Medical Termination Act1971
5
Diksha Trivedi, Is Abortion Legal in India, iPleaders, (6Sep,2020,3:30 PM), https://blog.ipleaders.in/is-abortion-
legal-in-india/
 while induced abortion constitutes a criminal offence under Section 312 to 316 of the Indian
Penal Code. Out of almost 35 million abortions which take place annually in the world, more
than half of them are illegal and performed by untrained, unskilled persons and done under
highly unhygienic conditions.6
Abortion in India is legal only up to twenty weeks of pregnancy under specific conditions and
situations which are broadly defined as:
• the continuance of the pregnancy would involve a risk to the life of the pregnant woman
or of grave injury of 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.

Though an adult woman requires no other person's consent except her own.7 It is also true that
in many parts of India, daughters are not preferred and hence sex-selective abortion is
commonly practiced, resulting in an unnatural male to female population sex ratio due to
millions of developing girls selectively being targeted for termination before birth.8
LEGAL STATUS
Before 1971:

The Indian Penal Code, enacted in 1860 and written in accordance with contemporaneous
British Law, declared induced abortion illegal. Induced abortion was defined as purposely
"causing miscarriage". The penalty for abortion practitioners was either three years in prison, or
a fine, or both; for the woman availing of an abortion, the penalty was either seven years in
prison, or a fine, or both. The only exception was when abortion was induced in order to save
the life of the woman.

The prevalence of illegal abortions, combined with the idea that abortion could be a mode of
population control, caused the government to reconsider the law. In 1964, the Central Family
Planning Board of the government of India met and formed a committee to examine the subject
of abortion from the medical, legal, social, and moral standpoints. The abortion study
committee headed by Mr. Shantilal Shah (Health Minister of Maharashtra) submitted its report
in December 1966. This report suggested that the penal code was too restrictive and
recommended that the exemptions under which abortion was permissible be increased and

6
Abortion: types and prevention tips, DoctorNdtv, (7Sep,2020,11:30AM), https://doctor.ndtv.com/photo/abortion:-
types-and-prevention-tips-8602
7
International Consortium for Medical Abortion ,(7 Sep,2020,1:45PM) http://m.icma.md/country/IN/
8
The Economist. The war on baby girls: Gendercide,(7 Sep,2020,4:30PM)
http://www.economist.com/node/15606229
liberalised. Many of the report's suggestions were included in the subsequent Medical
Termination of Pregnancy (MTP) Act.

1971 and Beyond:

The Indian abortion laws fall under the Medical Termination of Pregnancy (MTP) Act, which
was enacted by the Indian Parliament in the year 1971 with the intention of reducing the
incidence of illegal abortion and consequent maternal mortality and morbidity. The MTP Act
came into effect from 1 April 1972 and was amended in the years 1975 and 2002.

Pregnancies not exceeding 12 weeks may be terminated based on a single opinion formed in
good faith. In case of pregnancies exceeding 12 weeks but less than 20 weeks, termination
needs opinion of two doctors. The Medical Termination of Pregnancy (MTP)
Act of India clearly states the conditions under which a pregnancy can be ended or aborted, the
persons who are qualified to conduct the abortion and the place of implementation. Some of
these qualifications are as follows:

• 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
Pre-natal diagnostic techniques like Medical Ultrasonography are capable of determining the
sex of the fetus. In many parts of India, daughters are not preferred and hence sexselective
abortion is commonly practiced, a form of Gendercide, resulting in an unnatural male to female
population sex ratio due to millions of developing girls being terminated before birth.
According to The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse)
Amendment Act, 2002 the following are cognisable, non-bailable and non-compoundable
offences:
 • Conducting or associating or helping to conduct Pre-Natal Diagnostic tests for
determining the sex of the foetus.
• Sex selection on a woman or a man or both on any tissue, embryo, conceptus fluid or
gametes derived from either or both of them
• Advertisement or communication in any form in print, by electronic media or internet
by units, medical professionals or companies on the availability of sex determination
and sex selection in the form of services, medicines, or any kind of techniques.
Providers are punishable by 3 years imprisonment and a Rs. 10,000 fine (5 years imprisonment
and a Rs. 50,000 fine for subsequent offence); those who seek aid are be punishable with a term
that may extend to 3 years and a fine that may extend to Rs 50,000 for the first offence and for
any subsequent offence with imprisonment which may extend to 5 years and with fine which
may increase to Rs. 100,000.9
Unsafe abortions continue to outnumber safe and legal abortions. The Central government
constituted an expert committee in the year 2010 to make recommendations.

THE INDIAN LAW ON ABORTION10

The Indian Penal Code under Sections 312, defines the offence of 'causing miscarriage' as
follows "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 3 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 7 years, and shall also be liable to fine.
Explanation: a woman, who causes herself to miscarry, is within the meaning of this section.
The framers of the Code have not used the word 'abortion', in Section 312, which relates to an
unlawful termination of pregnancy. This section speaks of 'miscarriage' only, which is not been
defined in the Code. However, miscarriage, in its popular sense, is synonymous to abortion and
consists in the expulsion of the embryo-foetus at any time before it reaches full growth. Section
312 – Causing miscarriage
Section 313 – Causing miscarriage without woman’s consent
Section 314 – Death caused by act done with intent to cause miscarriage. If act done
without woman’s consent.
Section 315 – Act done with intent to prevent child being born alive or to cause it to die
after birth.

9
The Pre- Natal Diagnostic Techniques (Regulation and Prevention Of Misuse) Amendment Act, 2002
10
Indian Penal Code,1860§312
Section 316 – Causing death of quick unborn child by act amounting to culpable
homicide.
Section 317 – Exposure and abandonment of child under 12 years, by parent or
person having care of it.
Section 318 – Concealment of birth by secret disposal of dead body.

Miscarriage technically refers to spontaneous abortion, whereas voluntarily causing

miscarriage, which is an offence under the Code, stands for criminal abortion. Legally
miscarriage means the premature expulsion of the product of conception, an ovum, or foetus
from the uterus at any time before the full term is reached. A distinction is made under Section
312 of Code between causing miscarriage when a woman is 'with child' and when she is 'quick
with child'. As per judicial interpretation a woman is considered to be in the former stage as
soon as gestation begins and in the later stage when the motion is felt by the mother. In other
words, quickening is the perception by the mother that movement of the foetus has started. It
obviously refers to an advanced stage of pregnancy. Section 312 of the Code permits
termination of pregnancy of therapeutic (medical) grounds in order to protect the life of the
mother. The unborn child in the womb must not be destroyed unless the destruction of the child
is for the purpose of preserving the yet more precious life of the mother. The provision by
implication recognizes that the foetus has the right to life. When the termination of pregnancy
is caused without the consent of the women, punishment may extend to imprisonment for life
or imprisonment of either description for a term, which may extend to 10 years or fine.
If the death of the woman is caused by an act done with intent to cause miscarriage with her
consent punishment may extend to 10 years of imprisonment and fine, and if it is done without
her consent, imprisonment for life or ten years and fine. An act done with the intent to prevent a
child from being born alive or to cause it to die after death is punishable upto 10 years of
imprisonment or fine or both. And the causing of death of a quick unborn child by an act
amounting to culpable homicide is punishable upto 10 years of imprisonment and fine.
THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971

The MTP Act, 1971 preamble states “an Act to provide for the termination of certain
pregnancies by registered medical practitioners and for matters connected therewith or
incidental thereto”.
The preamble is very clear in stating that termination of pregnancy would be permitted in
certain cases. The cases in which the termination is permitted are elaborated in the Act itself.
Moreover, only a registered medical practitioner who is defined in Section 2(d) of the MTP
Act, 1971 as "a medical practitioner who possess any recognize medical qualification as
defined in Section 2(h) 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" is permitted to
conduct the termination of pregnancy. Also other matters connected there with the incidental
thereto are incorporated, for example, the question of consent of termination of pregnancy, the
place where the pregnancy could be terminated, the power to make rules and regulations in this
behalf.

Grounds for termination of pregnancy:

Section 3: When pregnancies may be terminated by registered medical practitioner: (i)

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.
This makes it clear that the provisions of the MTP Act, so far as abortion is concerned
suppresses the provisions of the Indian Penal Code.
Section 3(2): Subject to the provisions of Section 3(4), a pregnancy, may be terminated by a
registered medical practitioner,
(a) Where the length of the pregnancy does not exceed 12 weeks if such medical practitioner
is, or
(b) Where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, if
not less than 2 registered medical practitioners are of opinion, formed in good faith that:

1: The continuance of the pregnancy would involve a risk to the life of the pregnant women; or
2: A risk of grave injury to her physical or mental health; or
3: If the pregnancy is caused by rape; or
4: There exist a substantial risk that, if the child were born it would suffer from some physical
or mental abnormalities so as to be seriously handicapped; or
5: Failure of any device or method used by the married couple for the purpose of limiting the
number of children; or
6: Risk to the health of the pregnant woman by the reason of her actual or reasonably
foreseeable environment.

The Act does not permit termination of pregnancy after 20 weeks. The medical opinion must of
course be given in "good faith". The term good faith has not been defined in the Act but
Section 52 of the IPC defines good faith to mean as act done with 'due care and caution'. It is
important to note that certain loopholes exist in the provisions. Firstly, nowhere has the Act
defined what would involve a risk or a grave injury to her mental health. The term grave injury
or substantial risk remains undefined. The gravity of the injury or the extent of the risk being
left to the interpretation of the clause by the medical practitioner. However, the MTP Act
provides some guidance for the doctors in the form of two explanations.
Section 3(2) Explanation 1: 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.

Therefore, rape per se is not an indication. It is the mental anguish following pregnancy due to
rape, which is the main indication. In other words, mental anguish is to be taken into
consideration; proving rape and affecting her character is not necessary. Her allegation that she
has been raped is sufficient. Further proof of rape like medical examination, trial, judgment is
not necessary.

Explanation 2: Where any pregnancy occurs as a result of failure of any device or method used
by any married woman or her husband for purpose of limiting the number of children they
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. Can an unmarried woman avail this clause?

Thus, Section 3(3) clarifies in determining that whether the continuance of a pregnancy would
involve such risk of injury to the health as is mentioned in sub-sec (2), account may be taken of
the pregnant woman's actual or reasonable foreseeable environment. Therefore in determining
whether the continuation of pregnancy would constitute a risk to the physical or mental health
of the pregnant woman the Indian Law permits the consideration of the woman actual or
reasonably foreseeable environment. The terms reasonably or foreseeable being left to the
interpretation of the medical practitioner. Environmental clauses could include, by
interpretation, drunkard husband, low-income group, large family etc. By and large, these
explanations provide for two instances where continued pregnancy is assumed to constitute a
grave injury to the mental health of the pregnant woman, namely where the pregnancy is
alleged by a woman to have being caused by rape and second where the pregnancy occurs as a
result of failure of any device by a married woman or her husband for purpose of limiting the
number of children. The provision provides the doctors with a yardstick for a broad
interpretation of the basic concept of the potential injury to the mental health of the pregnant
woman.

The rest of the matters come in the case of mental indication where abortion is allowed, and
continuation of pregnancy would involve grave injury to her mental health. This is a subjective
indication and commonly restored one.
In one of the case, where a girl detained in a Women's Welfare institution applied to the High
Court during the pendency of her writ petition that the Court be pleased to order termination of
her pregnancy and the Court found that the Pregnancy was against her will and that unless it
was terminated the girl would suffer traumatic and psychological shock, the High Court
directed termination in a govt. Maternity hospital if the doctors there on examination found that
the termination would not affect her life and safety.

QUALIFICATION OF DOCTORS

According to the Act, 'a medical practitioner who possess any recognized medical qualification
as defined in Section 2(h) of the Indian Medical Council Act, 1956 whose name has been
entered in a state medical register and who has such experience or training in gynecology or
obstetrics as may be prescribed by rules made under this Act is permitted to conduct the
termination of pregnancy'. Allopathic doctors who are duly registered with the State Medical
Council are authorized to do abortion. Other like homeopathic, ayurvedic, unani doctors and
unqualified doctors like RMP, Quacks, etc all are not entitled to perform abortion. Even among
allopathic doctors, only those who satisfy one or the other of the following qualifications are
eligible to do MTP. Once a doctor satisfies the require qualifications, he automatically becomes
eligible to do abortions. He need not apply for eligibility to any authority. A doctor cannot
refuse to do abortions on religious grounds. If he does so, his name is liable to be erased from
the Medical Council. If he is a Govt. doctor, he is liable for departmental action.

CONSENT FOR ABORTION

Section 3(4) of MTP Act clarifies as to whose consent would be necessary for termination of
pregnancy.
(a) No pregnancy of a woman, who has not attained the age of 18 years, or who having
attained the age of 18 years, is a lunatic, shall be terminated except with the consent in writing
of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with
the consent of the pregnant woman.
It is important to note, in this section, that the consent of the woman is the essential factor for
termination of her pregnancy. The husband's consent is irrelevant. Therefore, if the woman
wants an abortion but her husband's objects to it, the abortion can still be done. However, if the
woman does not wants an abortion but her husband wants, it cannot be done. However, the
consent of the guardians is needed in the case of minors or lunatics.

WHERE THE PREGNANCY CAN BE TERMINATED

The MTP Act, 1971 under Section 4, specifies the place where a pregnancy can be terminated.
It stipulates that an operation must take place in either "a hospital established or maintained by
the government" or in "a place which has been approved for the purpose of this Act by the
government." However 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.
However, it needs to be pointed out that one aspect of this emergency clause tends to restricts
rather than liberalize the old law. Section 312 of the IPC permitted abortions by anyone with
the object of saving the life of the mother, but under MTPA only a doctor can terminate the
pregnancy.

APPROVAL OF A PLACE

According to the MTP Act 1971, no place shall be approved under Section 4(b) :
• Unless the Government is satisfied that termination of pregnancy may be done therein
under safe and hygienic conditions.
• Unless the following facilities are provided therein namely:
1. An operation table and instruments for performing abdominal gynecological surgery
2. Anesthetic equipment, resuscitation equipment and sterilization equipment
3. Drugs and parental fluids for emergency use.
The Central and State Government have been given powers to make rules and regulations under
Sections 6 and 7 of the Act respectively, concerning: experience or training of a registered
medical practitioner if he intends to terminate pregnancy; certification by a registered medical
practitioner of any opinion; intimation of such termination; and prohibition of disclosure of
such intimation or information furnished.
Thus, the often-argued following justifications in favour of the permissive abortions are found
in the Indian law-

(1) Therapeutics: The old restrictive Indian abortion law has permitted abortion to save the
life of the mother. In addition, the reformed law, as seen above allows abortions when the
mother's life is not threatened, but when continued pregnancy will cause damage to her mental
and physical health.

(2) Eugenics: the basic of eugenic abortion is that there is a justification for abortion when it
is known before birth that the child will be born mentally or physically deformed.
The unborn child should be relieved of a life of misery.

(3) Pregnancy caused by rape: the problem of a pregnancy caused by rape may affect the
mental health of the mother. It is assumed that the victim mother does not want the child and
does not want to bear the continuing result of a crime for which she was not culpable.

(4) Social and economic considerations: A popular argument in favour of abortion is based
on the absolute right of the woman to control the use of her body. She has a right to an abortion
on demand to terminate any pregnancy, which she decides she does not want. Admittedly, the
right to control the use of one's body is founded on ideas of liberty, and restrictions thereon
may amount to an invasion of privacy.

In countries where abortion is legal, death rates are usually below 1 per 100,000 procedures.
Abortion is a very safe operation if the operation is performed by skilled medical practitioners,
having proper facilities and equipments. In developing countries like India with scarce medical
resources treatment of complications of abortion often posses a heavy burden on the health care
system. According to recent estimates made by the World Health Organization, about one-
quarter to one-third of maternal deaths are due to complications of (illegally) induced abortion.
This can be prevented through offering easily accessible safe abortion services and through
family planning services and education. Reliable statistics show that in many countries where
 abortion is legally available, the abortion rate is much lower than in countries where it is
completely illegal.11
Landmark case laws
Psychological or mental trauma:

D. Rajeswari vs State of Tamil Nadu And Others12

This case, is of an unmarried girl of 18 years who is praying for issue of a direction to terminate
the pregnancy of the child in her womb, on the ground that bearing the unwanted pregnancy of
the child of three months made her to become mentally ill and the continuance of pregnancy
has caused great anguish in her mind, which would result in a grave injury to her mental health,
since the pregnancy was caused by rape. The Court granted the permission to terminate the
pregnancy.

Dr. Nisha Malviya And Anr. vs State of M. P13 -

The accused had committed rape on minor girl aged about 12 years and made her pregnant. The
allegations are that two other co-accused took this girl, and they terminated her pregnancy. So
the charge on them is firstly causing miscarriage without consent of girl. The Court held all the
three accused guilty of termination of pregnancy which was not consented by the mother or the
girl.
Abortion without mothers’ consent:

Shri Bhagwan Katariya And Others vs State Of M.P.14

The woman was married to Navneet. Applicants are younger brothers of said Navneet while
Bhagwan Katariya was the father of said Navneet. After the complainant conceived pregnancy,

11
World Health Organization, Preventing unsafe abortion (8 Sep,2020,3:30PM) https://www.who.int/news-
room/fact-sheets/detail/preventing-unsafe-abortion
12
D. Rajeswari vs State of Tamil Nadu And Others 1996 CriLJ 3795

13
Dr. Nisha Malviya And Anr. vs State Of M.P 2000 CriLJ 671

14
Shri Bhagwan Katariya And Others vs State Of M.P 2001 (4) MPHT 20 CG
 the husband and the other family members took an exception to it, took her for abortion and
without her consent got the abortion done.
The Court opined that if we refer Section 3 of the Medical Termination of Pregnancy Act,
1971, a doctor is entitled to terminate the pregnancy under particular circumstances and if the
pregnancy was terminated in accordance with the provisions of law, it must be presumed that
without the consent of the woman it could not be done. Present is a case where a permanent
scar has been carved on the heart and soul of the woman by depriving her of her child. And the
Doctor will be liable.
Thus, the case laws show that a woman has an absolute right to abortion, and no one can take
away this right from her. The Judiciary has been playing a vital role in securing these rights to
women. Right to abortion is a fundamental right of privacy.

Cap on MTP won’t apply when life of woman is in danger:

Ms X vs Union of India (2016)15

The Supreme Court allowed a rape victim based in Mumbai to abort her 24-week-old abnormal
foetus after the Centre clarified that a 20-week cap on termination of pregnancy is not
applicable if the pregnant woman’s life is found to be in grave danger. At the hearing, a Bench
of Justices J.S. Khehar and Arun Mishra perused a confidential medical report on the condition
of the woman, identified as only ‘Ms. X’, filed by a team of doctors at the K.E.M. Hospital.

In the medical report, Justice Khehar read out the findings where the doctors had concluded
that the pregnancy was 23 to 24 weeks old. It said that continuance of the pregnancy would
involve “grave danger” to the life of the pregnant woman.

It was held that though The Medical Termination of Pregnancy Act, 1971 mandates against
abortion after pregnancy crosses the 20-week threshold, there are exceptions.

CONCLUSION

It is submitted that a decision as to abortion may be entirely left with woman provided she is
sane and attained majority. Only in cases where an abortion may affect her life, her freedom
may be curtailed. All other restrictions on the right to abortion are unwelcome. True, a woman's
decision as to abortion may depend upon her physical and mental health or the potential threat
to the health of the child. Apart from these reasons, there are also various important factors. She

Ms X vs Union of India W/P (C)No.593 of 2016 at http://supremecourtofindia.nic.in/FileServer/2016-07-

15

25_1469453114.pdf
or the family may not be financially sound to welcome an addition. It may be a time when she
wants to change her profession, which requires free time and hard work. Her relationship with
the husband may virtually be on the verge of collapse and she may prefer not to have a child
from him, for it may possibly affect a future marriage. All these factors are quite relevant and
the Indian statute on abortion does not pay any respect to them. The law thus is unreasonable
and could well be found to be violative of the principles of equality provided under Article 14
of the Constitution. Is it desirable to pay compensation to woman for all her physical and
mental inconveniences and liabilities, which arises in that context. Finally it may be noted that
the MTP Act does not protect the unborn child. Any indirect protection it gains under the Act is
only a by-product resulting from the protection of the woman. The rights provided as well as
the restrictions imposed under the statute show that the very purpose of the state is to protect a
living woman from dangers which may arise during an abortion process. It is the protection to
the mother that protects the unborn.
A mother has got a natural duty to provide the maximum best possible to her offspring.
However, situations may arise where she indulges in activities, which injuriously affect the
foetus. It may be due to ignorance, carelessness or acts done willfully. Abortion is an issue to
be left to the decision of the mother. However, taking viability of a legal standard, necessary
protection should be provided to the unborn. It is also beneficial to the mother, where the state
or voluntary organizations are ready to take care of the unborn. There is no meaning in
conferring a right to the mother to destroy the foetus. Her right is limited to have a termination
of pregnancy. It is also said that delivering 20 million babies annually would be a greater strain
on the nation’s medical services and economic resources than, say, performing one to five
million abortions a year.

The law has to take care of the liberty of the mother as well as the unborn. As a hospitable
community we should seek ways of providing support for lonely and frightened mothers, and
for lonely and abandoned babies. We need to offer women with unplanned pregnancies as
much love and support as they require and to assist them in finding compassionate alternatives
to abortion.

SUGGESTIONS

1. The original draft of the Bill had included the contraceptive failure clause only for married
women, which, left unmarried women, on whom social pressures to abort are more acute, at
the mercy of quacks. That is why there is a need that failure of contraception should be
accepted as a legal reason to abort not just in married but also unmarried women.
2. Interference of the state should be limited. A lot of Indian women are getting medical
termination of pregnancy done where doctors are not really asking for the certificates before
 they conduct the procedure. So, it is important that the government must protect Indian
women by removing these barriers and provide better quality treatment for MTP.
3. AYUSH doctors and Nurses should be include in this act. This is imperative if we need to
ensure that every one who needs it, even in most remote and hard to reach area can legally
access safe abortions.
4. There is need for expanding the gestational period from 20 weeks to beyond that. This is a
health issue, not a legal issue. These individual cases should never need to go the court and
MTP Act should be amended to provide guidance to doctors for every situation.