Indian Law - Pregnancy Act 1971

The Indian Law on Abortion:

Section 312 of the Indian Penal Code, 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 her to miscarry, is within the meaning of this section.

The framers of the Code have not used the word 'abortion', in sec.312, which relates to an unlawful termination of pregnancy. This section speaks of 'miscarriage' only, which as not been defined in the Code. However, miscarriage, in its popular sense, is synonymous with abortion and consist in the expulsion of the embryo-foetus at any time before it reaches full growth. 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 women is 'with child' and when she is 'quick with child'. As per judicial interpretation ia women 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. Sec 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:

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. Although the majority of countries have very restricted abortion laws, 41% of women live in countries where abortion is available on request of women. 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 Aug. 1971. Medical Termination Of Pregnancy Act, 1971 (MTP Act) was implemented from Apr.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".

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 Sec.2(d) of the Act as "a medical practitioner who possess any recognize medical qualification as defined in Cl.(h) of sec.2 of the Indian 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.