By Dhanuja T. from School of Excellence in Law, Chennai
Medical Termination of Pregnancy Act, 1971 was enacted on 10.08.1971 and came into force on 01.04.1972. This act was passed to regulate unwanted Abortion in India and to reduce the maternal death due to scanty and insufficient facilities available for abortion. This act falls under the health and family welfare. The abortion performed under this Act is called the Safe Abortion.
Abortion is the termination of the pregnancy by medication or surgery in which the fetus and placenta is removed from the Uterus – Female reproductive organ. This process was criminalized under Section 312 of Indian Penal Code, 1860 till 1971. It allows abortion only when it is necessary to save the life of the pregnant women.
Medical Termination of Pregnancy Act, 1971
After the passing of this Medical Termination of Pregnancy Act, 1971, abortion was legalized in India since 1971. This was brought by the Ministry of Health and Family Welfare because of the alarming increase of abortion and maternal death due to unsafe abortion. The Government of India installed the Shantilal Shah Committee for drafting the abortion rules in India. Later the bill was converted into the Act after the consent of the President. Since the enactment of this Act, it has been granted that no Registered Medical Practitioner who has acted in accordance with the provisions of this act can be convicted under the Indian Penal Code.
Comprehensive Abortion Care (CAC)
This concept was first introduced by a Non Profit Organization – Ipas Development Foundation (IDF) in the year 2000. IDF is working to train obstetricians, gynecologists and general medical practitioners for the purpose of offering high quality CAC services to pregnant women in partnership with 12 State Governments. The aim of this concept is to reduce the number of unintended pregnancies, abortion and maternal mortality. This concept was strongly supported by the MTP Act, 1971.
Salient features of the Act
- This act draws towards the termination of certain pregnancies by the registered medical practitioners and the connected matters.
- This act explains the registered medical practitioner as defined in the Cl. (h) of Section 2 of the Indian Medical Council Act, 1956. Accordingly, a registered medical practitioner is one whose name has been registered in the State Medical Register and who has practiced or trained in gynecology and obstetrics. (Section 2)
- It explains the circumstances under which the abortion can be done by the medical practitioner. (Section 3)
- It also provides the place where the termination of pregnancy can be made. (Section 4)
- It clearly mentions who has the power to make rules and regulations to this act. (Section 6 & 7)
- This act also renders protection for the action taken in good faith by Registered Medical Practitioners. (Section 8)
Grounds for termination
- The termination of the pregnancy is allowed when the pregnancy is caused due to rape and the continuation of the pregnancy is detrimental to the mental health and physical health of the pregnant women.
- The termination of the pregnancy is allowed when the pregnancy occurred due to the failure of the contraceptives and when the continuation of such pregnancy is detrimental to the mental and physical health of the woman.
- Termination is allowed if the continuation of the pregnancy poses a risk to the life of the pregnant women.
- Termination of pregnancy is allowed when there is a substantial risk that can lead to physical and mental complications due to severe disability if the baby is born under these circumstances.
Who can terminate
- Termination of the pregnancy may be done after the issuance of a letter by a registered medical practitioner if the length of the pregnancy is less than 12 weeks.
- Termination of pregnancy may be done after the issuance of a letter by two registered medical practitioners if the length of the pregnancy is more than 12 weeks and less than 20 weeks.
- If the period of pregnancy is more than 20 weeks the permission of the court is necessary for termination. The Court may decide either to provide or reject the plea on the opinion of the medical specialist and on the plea requested.
Place for termination
Termination of pregnancy shall be done only in the places mentioned in this act and not anywhere else.
- The hospital established or maintained by the Government.
- The place which is established by the Government for the purpose of this Act.
Minor & Lunatic:
For those who have not attained the age of majority (ie. 18) according to the Indian Majority Act, 1875 and those who are lunatic according to the Indian Lunatic Act, 1912, the consent of his/her guardian is necessary for abortion.
Pre-marital or prenatal sex is strongly discouraged in India, but it is evident many young men and women engage in sex before the marriage. When unmarried girl is above 18 years in these cases her own consent is adequate for termination of pregnancy. However for unmarried under age of 18, the guardian consent is necessary.
The written consent of the raped victim alone is sufficient for the termination of pregnancy. The abortion in these cases is performed even after the period of 20 weeks of pregnancy with the prior permission of the court. The court generally permits the abortion in this situation because the continuation of the pregnancy may affect the mental health of the women.
The consent of the pregnant women alone is adequate for termination of pregnancy. Though she is married, the consent of her husband is not necessary according to this act. The Act thus renders freedom for the women to take decision in abortion since it is wholly connected with her mental health. Most of the abortion related to married women arises due to the failure of contraceptives and it is admissible as the ground for abortion.
Power to make rules:
The Central Government of India may make any rules to this act by announcing a notification in the Official Gazette. The rules thus made by the Government should be ratified by both the houses of the Parliament. Provided that any modifications shall not prejudice the validity of anything previously done in this act.
Power to make regulations:
The State Government has the power to make regulations regarding this act. The State Government by regulation shall provide the requirements and prohibition of certain acts necessary under this act. Any person willfully breach these regulations shall be liable with fine which may extend up to one thousand rupees.
- This act was first amended in 2002. After that the act can also be called as the Medical Termination of Pregnancy (Amendment) Act, 2002.
This Act includes:
- The alternation of the word lunatic to ‘mentally ill person’ in section 2 of the principal act (Medical termination of Pregnancy Act, 1971). The mentally ill person is defined as the person who is in need of treatment by reason of any mental disorder other than mental retardation by this Act.
- Termination can be done only in the government hospitals and in the places approved by the Government. It is added with a place approved by the District Level Committee in which the Chief Medical Officer or the District Health Officer is the chairperson. Provided that the committee shall consist of 3-5 members including the Chairperson.
- Termination of pregnancy done by other than the registered medical practitioner or the practitioner in gynecology or obstetrics shall be punished with rigorous imprisonment for a period which is not less than 2 years and not more than 7 years.
- Punishment for the owner of the place which is not approved by the Government for the medical terminal of the Pregnancy shall be punished with rigorous imprisonment for the period 2-7 years.
- Recently the Union Cabinet has approved the Medical Termination of Pregnancy (Amendment) Bill, 2020, and was passed by the Lok Sabha on 17 March 2020. The bill was introduced by the Minister Harsh Vardhan. It is the fourth Amendment bill followed by the MTP Bill 2014, 2017 and 2018.
The changes planned to be amended in the MTP Act, 1971 by the amendment bill, 2020 are as follows:
- The Medical Termination of Amendment Bill, 2020 seeks to extend the pregnancy period limit from 20 weeks to 24 weeks.
- The draft bill seeks the requirement of opinion from one register medical practitioner if the length of pregnancy is up to 20 weeks.
- It also proposes the requirement of opinion of two medical practitioners if the length of pregnancy is 20 weeks to 24 weeks.
- The draft replaces the term ‘married woman or her husband’ in the Section 3 with ‘any women or her partner’. Thus the bill clearly supporting the abortion of unmarried women.
- The bill brings that name and other particulars of women whose pregnancy has to be terminated shall not be revealed except to a person authorized in any law in force. And also provides that anyone who contravenes this provision will be punishable with imprisonment up to 1 year or with fine or with both.
The Medical Termination of Pregnancy Act, 1971 has been criticized a lot. Some of them are as below:
- Why the abortion performed at 20th week is not allowed at 20 and a half week? This question arises among the people because of the lack of proper reason.
- The MTP Act, 1971 is contrary to the POSCO Act. This is because the former allows the minor victim who has been raped to have an abortion with the consent of the guardian and ensure anonymity, whereas the later urges the registered medical practitioner to report the raped minor victim’s pregnancy to the legal officers compulsorily. This leads to the collapse of the main objective.
- There is no law related to the pre abortion which is necessary to make the Act effective.
- The training of the nurses who are assisted by the registered medical practitioners is not guaranteed in the Act.
- The PCPNDT (Pre-conception and Pre-Natal Diagnostic Techniques) Act, 1994 is misused by the freedom granted under the MTP Act, 1971. The sex of the unborn child can be detected and revealed as early as 14 weeks by the ultrasound technology. Thus most of the parents after discovering the sex of the unborn child as female, claiming for abortion under the MTP Act, 1971. However it is punishable under the PCPNDT Act, 1994.
Therefore in conclusion, the update of the Act accordingly to the development in technology and medical methods is necessary. So the amendments on deep analysis are greatly welcomed for the real profit of pregnant women. Similarly the clash with the POSCO Act and misuse of PCPNDT Act should be recognized and rectified accordingly.