ABORTION LAWS IN INDIA

ABORTION IS LEGAL OR NOT?

Yes, abortion is legal in India, but with some restrictions. “The Medical Termination of Pregnancy Act, 1971” (MTP Act), and “The Medical Termination of Pregnancy Rules, 2003”,and “ The Medical Termination of Pregnancy Regulations, 2003, are the act, rules and regulations in India, which are currently in force, and permits the abortion in India, with certain restrictions. This MTP act was come into force on 1st of April, 1972.

Before the MTPAct of 1971, the abortion in India was offence under section 312,of the Indian Penal code 1860, if the miscarriage is not caused in good faith for the purpose of saving the life of the woman. In this section the abortion was illegal and punishable offence with the maximum punishment of three years or fine or both.

For legalizing the abortion, the government of India constituted the “Shah committee” in the year 1964. The committee was headed by Mr. Shantilal shah. Mr. Shah was the Loksabha MP and leader of Indian National congress. “Shah committee” submitted its report in the year 1966, and recommended the government to legalize the abortion laws in India. Government of India has accepted the recommendations of this committee in the year 1970, and in august 1971, this MTP act of 1971 was passed by the parliament of India. Which came into force from 1.4.1972, vide notification dated 19.2.1971.

This act and rules has been updated by the central government from time to time. Recently the central government has amended this act and rules by Medical Termination of Pregnancy (Amendment) Act, 2021, and Medical Termination of Pregnancy (Amendment) Rules, 2021.

TILL HOW MANY MONTHS OF PREGNANCY, ABORTION CAN BE DONE?

Till 24 weeks

The abortion can be done till 24 weeks of pregnancy. But the doctor’s opinion is necessary. If the doctor opined that the continuation of pregnancy can harm the life of that woman or it will cause grave injury to her physical or mental health, Or it the child were born it would suffer serious physical or mental abnormalities, than the abortion can be done.

Till 20 weeks of pregnancy the opinion of one doctor is necessary. If pregnancy exceed 20 weeks but not exceed 24 weeks, than opinion of two doctors is necessary.

Beyond 24 weeks

If pregnancy exceed 24 weeks, the abortion is permissible, but not as easily as before the 24 weeks. After 24 weeks of pregnancy the Opinion of medical board must be needed. The medical board is constituted by the state government. The medical board must be opined that the procedure of termination of pregnancy would be safe, and it can cause harm to life of that woman, or if the child would born it can suffer with mental and physical abnormalities to be seriously handicapped. The ground of mental and physical harm to a woman has not been given after 24 weeks of pregnancy.

Emergency situation

If any woman is in such condition that it is necessary to terminate her pregnancy immediately, for saving her life, than a doctor can do so, without looking to the length of pregnancy period, without seeking opinion from two doctors, or without looking to the place of abortion.

The purpose of the act is to restrict the laws of abortion, but it should not harm to life of any woman. Therefore the doctors have been given this exceptional powers, to save the life of such woman.

DOES UNMARRIED WOMAN IS ELIGIBLE FOR ABORTION?

Yes unmarried woman is eligible and take the benefits of the act. The Hon’ble Supreme court of India has passed a Judgment on 21.7.2022, and said that unmarried woman is also covers under the act and can take benefits of this act. The link of this judgment is :-

https://main.sci.gov.in/supremecourt/2022/21815/21815_2022_4_33_36536_Judgement_21-Jul-2022.pdf

IS A NAME OF FATHER IS REQUIRED FOR ABORTION?

For abortion, there is no requirement under the under the MTP act, rules and regulations, to disclose the name of father of the child. If any woman wants she can disclose the name of father. But if she doesn’t want to disclose there is no compulsion upon her.

UNDER WHAT CIRCUMSTANCES ABORTION CAN BE DONE?

1. When the pregnancy can cause harm to the woman’s life
2. When pregnancy can cause grave injury to the physical and mental health of a woman
3. When there is a substantial risk that if the child will born it can suffer with serious physical or mental abnormality.
4. Other emergency situations when it is necessary to save the life of a pregnant woman.

In the clause (B) of this blog, Mental health of a woman has been shown as the ground of termination of pregnancy. Mental health is very vast term. It is not limited only to the mental diseases of a woman but it includes the other circumstantial situation which can cause harm mentally to a woman. For example if a woman is working and earning well. But during pregnancy she lost her Job. In this situation she is not financially strong, than it can be said that pregnancy can cause harm mental health of that woman. For another example if a unmarried woman was having consensus physical relationship with her male fried, and she got pregnant from this relation. During pregnancy the male fried has left the woman, than the pregnancy can be said to cause harm to mental health of that woman.

WHICH WOMEN ARE ELIGIBLE UNDER THE MTP ACT FOR ABORTION TILL 24 WEEKS OF PREGNANCY?

1. Woman, who is a minor
2. Woman who is mentally ill.
3. Woman who is survivor of rape, physical assault or incest
4. When there is change of marital status of a woman during pregnancy. (Divorcee, widow).
5. When the pregnant woman is living in the disaster, emergency situations declared by the government.
6. Woman who is having physical disability

The supreme court of India has also decided that the unmarried woman would also be eligible for taking the benefits of this MTP act

IS THE MALE FRIEND CAN BE HELD GUILTY, IF HE GETS ABORTION OF HIS FEMALE FRIEND?

Yes he can be held guilty for abortion, if he gets abortion forcefully of his female friend, without her consent. If the girl gave her consent, than he cannot be held guilty.

IS THERE ANY PERMISSION REQUIRED FROM POLICE OR ANY AUTHORITY BEFORE ABORTION?

No, there is no permission required from any police or authority, before going into the process of abortion. Only the doctor’s opinion is needed as per the law

CAN A WOMAN BE PRESSURIZED FOR ABORTION?

No, the woman cannot be pressurized for abortion. Her free consent, in writing, is required before her abortion. If anyone forcefully abort her fetus, than such person can be punished with “life imprisonment” or imprisonment upto 10 years, under section 313 of Indian penal code. If any woman is not in condition to give her consent, and it is necessary to abort her fetus for saving her life, than there is no offence.

CAN WOMAN GET DONE ABORTION HERSELF, IF HER FAMILY LIKE PARENTS, HUSBAND, IN-LAWS, DOESN’T WANT IT?

Yes, any woman can terminate her pregnancy, as per the law, without the consent of her relatives, such as husband, parents, in-laws etc. The only requirement is doctor’s opinion and the woman’s written consent. The consent of other persons doesn’t required under the law.

But if the woman is minor (below the age of 18 years), or lunatic, or of unsound mind, than the consent of her guardian is needed. Guardian means the person, who is having legal custody of such woman.

If the woman is above the age of 18 years, and if she is mentally fit, than she herself can take decision of abortion. No other person is required for giving such consent.

IN WHICH HOSPITAL ABORTION CAN BE DONE, GOVERNMENT OR PRIVATE?

The abortion can be done in the government or private hospital both. But the private hospital must be authorized from the government authorities for doing the abortions. If any private hospital which is not authorized for the abortion, but it is doing abortions, than it is a punishable offence, and the owner/manager of the hospital can be punished with seven years imprisonment.Abortion cannot be done on any other place except authorized by the government of India. But in emergency situations the abortions can be done at any place, whether the place is authorized or not. To save a life is the first purpose of the MTP act.

IS THE HOSPITAL / DOCTOR IS BOUND TO MAINTAIN PRIVACY REGARDING THE DETAILS OF WOMAN?

Yes, hospital, doctors, and staff are bound to maintain the privacy regarding a woman. They cannot disclose the name of a woman, who had terminated pregnancy, to any other person. If they do so, it is a punishable offence under the MTP act. But the name of a woman can be disclosed to the government authorities, such as police, commission, committee etc, for the investigations.

WHAT’S THE LEGAL REMEDIES IF HOSPITAL DENIES FOR ABORTION?

The woman can apply a writ petition in the concerned High court in which jurisdiction the government hospital is working. If the hospital is private, than, civil suit for mandatory injunction, can be filed.