MTP : Medical Termination of Pregnancy or Must To Procreate? (co authored Namita Choudhary))

The article seeks to provide a bird’s eye view of the legislation governing the legal way of terminating pregnancy, the Medical Termination of Pregnancy, 1971, and in the process also tries to strike a balance between the flip and flop sides of the Act. The gaps in the legislation, as highlighted here, merit attention of the enforcers and the beneficiaries equally to guard against misuse, the remedies suggested need to be kept in view by the law-makers.

Introduction

The abortion laws in India have once again come to limelight with a three-judge Bench of the Supreme Court headed by Chief Justice K G Balakrishnan pronouncing that in the case of a mentally retarded woman who is pregnant, she should be allowed to keep her pregnancy if the concerned authorities could guarantee the well-being of both the mother and the yet to be born. The last time the topic hit the headlines was in 2008 when the Bombay High Court had delivered a controversial judgment, where the foetus was detected with a congenital heart block and the permission to terminate pregnancy in its 26^th week was refused. The Hon’ble Court did not grant the permission because abortion beyond 20 weeks is not permitted under the MTP Act unless there is a serious threat to the mother’s life. The law had to be abided even though the parents themselves did not want the child. In the light of these developments, an attempt has been made in this paper to thoroughly analyze the MTP Act, the sole legislation governing abortions in India.

The MTP Act – A bird’s eye view

Prior to 1971, i.e. before abortion was legalized, once a woman exercised the option to conceive, termination of foetus was an offence under the IPC. The woman herself could also be held guilty of such an offence as Section 312 of the Code was worded so. This resulted in large number of illegal abortions being carried out by unqualified persons which often resulted in casualty of many women. Keeping in view such mishaps, the M.T.P. Act was enacted in 1971.

The MTP Act has been enacted to provide for the termination of certain pregnancies by registered Medical Practitioners and for matters connected therewith or incidental thereto. The Legislature has endeavored to incorporate certain grounds under which a woman would like to terminate her pregnancy, like-

1. Where the continuation of the pregnancy poses a threat to her health (this also includes the mental anguish caused to a pregnant woman in case of a pregnancy caused as a result of failure of any device or method used by herself or her husband for the purpose of limiting the number of children);
2. Where there are chances for the child to develop some physical or mental abnormalities which shall deprive him/her of living a healthy life when born. This is because when there is no possibility of begetting a living child with all human potential it is better to prevent such child to be born and thereby save it from earthly miseries.
3. Where the pregnancy is caused due to rape.

The medical practitioner (which term has been defined under the Act) is empowered to terminate the pregnancy of a woman within 12 weeks of pregnancy where he is of the bonafide opinion that continuation of pregnancy is harmful to the health of either the expectant mother or child. In case of pregnancy beyond the period of 12 weeks but within the 20^th week, such a bonafide opinion of two medical practitioners is required. Pregnancy beyond the 20^th week can be terminated only if it is necessary to save the life of the woman. Under all circumstances, pregnancy can be terminated only with the consent of the woman. Exceptions to this general rule have been carved out in the cases of minor and mentally ill women; here, consent of the guardian in writing is mandatory. The Act also prescribes the place where such abortions are to be carried out.

Conflict of interests

Rights of the unborn child

The very concept of abortion involves the clashing of interests of the expectant father and mother with that of their unborn child. The general thumb rule in such cases is that the right which advances public morality should prevail. In view of this, it becomes obligatory upon the State to strive to strike a balance amongst all the three.

The fact that the foetus is incapable of protecting itself makes it incumbent upon the legislature to impose restrictions on the termination of pregnancy. The legislature has always sought to do the same which is quite evident from the provisions of the personal laws. For example, under the Hindu Law, where the partition of the ancestral property was done without reserving a share for the son in the mother’s womb, he is entitled to have such a partition reopened. In the law of wills too, both in India and in England, a child in the mother’s womb is considered to be in existence. In fact, the Madras High Court in 1886 in Queen Empress v. Ademma has held that the foetus starts to have growth from the very beginning, the universally accepted criteria of life.

Further, these provisions are in conformity with the landmark US Supreme Court judgment of William L. Webster et al v. Reproductive Health Services et al, where the Court declared that ‘the life of each human being begins at conception’, and that the State can pass any regulation of abortion only on the grounds of one, to preserve and protect the health of pregnant woman, and the other, to protect the potential human life present in the foetus.

Another illustration to this endeavor of the legislature is the Maharashtra Regulation of Use of Pre-natal Diagnostic Techniques Act, 1988, wherein it is obligatory to obtain an undertaking from a woman who prefers such tests that she will not terminate the pregnancy if the diagnosis shows the possibility of a normal child of either sex. This Act was followed by a Central legislation being passed on the subject called the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. This enactment provides for the regulation of the use of pre-natal diagnostic techniques for the purpose of detecting genetic abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of the misuse of such techniques for the purpose of pre-natal sex-determination leading to female foeticide, and for matters connected therewith or incidental thereto.

Right to privacy of the woman

The M.T.P Act not only provides for the safety of the pregnant woman but also respects the privacy of the family. The provision permitting abortion on the ground that the foetus is unhealthy is for the betterment of father’s genetic inheritance and leads to the welfare of the family. Thus, the legislation guarantees not only the right of the father to constitute a family, but it also ensures that a healthy family is constituted by him.

Where has the Act failed?

Though the MTP Act is quite a well-drafted piece of legislation, there are certain grey areas in this enactment which have to be addressed.

Section 3(2)(i) states that the pregnancy may be terminated at any time if it poses an immediate risk to the life of the woman. But, if such necessity is not immediate, a pregnancy may be terminated only if the length of the pregnancy does not exceed twenty weeks. For example, if the pregnancy is beyond the period of twenty weeks, and its continuance would involve risk to the life of the pregnant woman but the risk is not such as to require immediate termination of pregnancy, such pregnancy cannot be terminated. In such circumstances, the pregnant woman has to run the risk of waiting till it is so grave that it becomes immediately necessary to terminate the pregnancy.

In another instance, in case a pregnant woman is extremely depressed that she is likely to have an unwanted baby and the unborn child is in turn affected by this depression, such a situation cannot be construed as a ground for termination under the present law. In fact, there is no provision for the termination of pregnancy after the 20^th week if such continuation would lead to any abnormalities for the child when born.

Further, the enactment is very lopsided by taking cognizance of the consent of only the expectant mother. Consent of the husband in matters relating to pregnancy is very important. In fact, it has been held time and again in various cases that absence of the husband’s consent may lead to a matrimonial dispute on the basis of cruelty which is a ground for divorce under Section 13(1) (a) of the Hindu Marriage Act, 1955. For instance, in Satya (Smt.) v. Shri Ram, the High Court of Punjab and Haryana held that termination of pregnancy at the instance of wife but without the consent of her husband amounts to cruelty. In yet another case, Deepak Kumar Arora v. Sampuran Arora, a Division Bench of Delhi High Court has observed that “….if a wife undergoes abortion with a view to spite the husband it may, in certain circumstances, be contended that the act of getting herself aborted has resulted in cruelty.”

In an earlier English case of Forbes v. Forbes too, it was held that “if a wife deliberately and consistently refuses to satisfy her husband’s natural and legitimate craving to have children, and the deprivation reduces him to despair and affects his mental health, the wife is guilty of cruelty.”

Therefore, according to the principles of natural justice which requires taking care of the interests of all the parties concerned, where a woman becomes pregnant during the period of wedlock, she should not be allowed to terminate it at her will alone. In fact, in certain countries like Egypt, abortion can be performed only with the consent of the husband.

Further, Explanation II to Section 3 states that where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

This provision too is in itself an evidence of the discriminatory nature of the Act. On the failure of any contraceptive, the mental anguish caused to the woman is alone taken into consideration while the same agony experienced by the husband is ignored. On what basis is it to be claimed that a father ought to be compelled to stand passively during his wife’s pregnancy, knowing that he will be the one who has to bear the burden of raising and supporting the child.

Even in the case of abortion of minor or mentally ill person, the consent of the guardian is essential only when she decides to terminate her pregnancy but not when she chooses to complete the full terms and give birth to a child as can be interpreted from Section 3(4)(a).

The counterparts

The examples of other countries need to be taken into account to understand the changes that are necessary in our abortion laws.

Soviet Union was the first country to legalize abortions, as early as in 1920. This was to recognize the concept of complete feminine equality, a freedom propagated by Lenin.

The People’s Republic of China not only permits abortion on request but also provides it as a free public service. As soon as a woman realizes that she is pregnant, she is to declare that she does not want to have the child. Then, she is taken immediately for abortion.

Also, the amended Eugenic Protection Law of 1948 of Japan provides for allowing the performance of induced abortions for various reasons. This has helped in making the Japanese net reproduction rate among the lowest in the world.

Sweden is another country where abortion has been fully liberalized. The Swedish Parliament too, in 1974, approved a new legislation on abortion under which woman has been given liberty to decide for herself if she requires it or not.

But the United States is a country where the right to abortion and the right of the unborn child to be born alive has been balanced in a justifiable manner. Here, the right of privacy of a woman to abort is not absolute. Though the American Supreme Court recognized the right of a woman to abort in the landmark judgment of Roe v. Wade, the Court could not deny the existence of life in the foetus. In fact, in a later case William L. Webster et al v. Reproductive Health Services et al, the same Court reversed its earlier judgment and declared that ‘unborn children have protectable interest in life, health and well-being’.

Conclusion

As we have seen, the right to conception, the right to abortion and the right to birth are very much conflicting rights and requires a conscientious analysis. This is because the termination of pregnancy is not merely a question of the well-being of the expectant mother; it also has several far reaching physio-psychological implications on the family.

The existing law on the subject seeks to balance the rights of all concerned in a satisfactory manner. Under the present law, a woman has an absolute discretion regarding conception. At the same time, the discretion for abortion is limited by IPC and MTP Act as it is allowed only under exceptional circumstances. The unborn child may lose its life only when it poses a serious problem to its mother’s life or to itself. Thus, the right to abortion is regulated and child birth is also guaranteed.

Nevertheless, certain improvements ought to be made in order to remedy the aforesaid fallacies.

Firstly, instead of the present grounds upon which abortion can be performed, an amendment in the Act to the following effect that is suggested-

a. For the first six months of pregnancy, the decision to go for abortion may lie with the husband, wife and the doctor;

b. For the next few months of pregnancy, law may regulate the abortion on the same grounds as currently existing; and,

c. For the last weeks of pregnancy, when the foetus is medically found capable of surviving if born, law may even prohibit abortion except when abortion is necessary to save the life of the woman.

It is further recommended that the provisions of the Act relating to the age of consent for abortion purposes may also be modified. Presently, a minor cannot take a call with respect to her pregnancy on her own. Her guardian’s consent is the binding one. An amendment in this Section to the effect that “the consent of any pregnant women who is capable of forming a prudent opinion about the future of her pregnancy shall also be considered along with the guardian’s consent” is necessary. This amendment would also be in consonance with the aforesaid Supreme Court judgment which states that the pregnancy cannot be terminated without the consent of the woman.

Last, but certainly not the least, the enactment does not recognize medical practitioners from other systems of medicines like ayurveda, homeopathy and unani. An amendment in the definition of “registered medical practitioner” under section 2(d) to this effect would make it convenient for people from various other strata of the society too.

Tagged as: Abortion, Consent, Guardian, Illegal abortions, Minor, Pregnancy, Right to conceive, Right to privacy., Rights of the unborn child