Pregnancy - Termination

Grounds for termination of pregnancy:

Sec.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. Sub-sec. (2) of Sec.3: "Subject to the provisions of sub-sec (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 the 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 offcourse be given in "good faith". The term good faith has not been defined in the Act but sec. 52 if 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.

Sec 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, and 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 of this clause? She cannot use this, but she can get abortion under the general clause of mental indication.

Sub Section (3) clarifies that:

Sub-Sec.3 (3) 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 f 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.