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Medical Termination of Pregnancy

Article written by Pooja, 4th Year, BBA LLB (Hons), SASTRA Deemed to be University.


Article 21 of the Indian Constitution has many innate rights, one such right is personal autonomy which includes the reproductive rights of an individual. This right ensures a woman to make her decisions regarding sexual intercourse and reproductive organs candidly without anyone's intervention. But many disparities arise under the same category of rights. The new public attention in our society is about the issue of abortion. A woman has the right to life and personal liberty enshrined under Article 21, therefore this forms as a sanction to the right of abortion. The Supreme Court held that the reproductive choices are a facet of "personal liberty" guaranteed under Article 21.[1] Further in K.S Puttuswamy v. Union of India[2], it was held that the right to make reproductive choices comes under the ambit of the right to privacy and personal liberty.

Induced abortion means when a woman voluntarily terminates her pregnancy from a service provider. But spontaneous abortion takes place accidentally when women lose her pregnancy, it is also known as a miscarriage. One of the leading causes of maternal deaths in India is due to unsafe abortion. Most of the resort to this category because of their social, economic, and logistic barriers. When a woman is not legally allowed to abort, then she will be forced to avail of the services of illegal providers. In 1964, the Shantilal Shah Committee[3] was formed to curb the issue of Illegal Abortions and maternal morbidity. This committee recommended the enactment of special legislation regarding abortion.

Then, the Medical Termination Pregnancy Act, 1971 was pitched in to legalize abortion and to balance the disparities among the rights of women in conflict. Before this Act, Section 312 of the Indian Penal Code governed abortion and placed restrictions on woman's reproductive autonomy. But this Act placed restrictions that balanced both the woman's right and the State's right. The right to abort has been recognized internationally and the legalization of abortion has brought a dramatic change in society.

The battle between the rights of child and mother

A woman has the right to terminate her pregnancy with few restrictions. Does this right affect the rights of the unborn child? The right of the child to survive and the right of the mother to terminate her pregnancy always conflicts. Now the question arises that who is more competent to adjudicate their claim? The basic law states that killing a fetus is not permissible, except in a few situations. In most of the cases, the mother's right prevails over the child's right. In the mater of self-defense, to save the mother's life, on a balance of probabilities of surviving capacity, the child's right is buried. The necessity under Section 81 of the Indian Penal Code illustrates that any act done with the good intent that it is likely to cause harm without any criminal intention to prevent harm on any other person or property is not considered as an offence. Therefore, if there is a threat to the mother's life, then the necessity principle applies and the fetus has to be killed.

The reasoning should be based on the balance of one's life over the other. The right to self-defense and necessity is recognized as the justification for abortion. Section 312 of the Indian Penal Code punishes for the offence of causing miscarriage. This provision punishes only miscarriage which is not caused in good faith. This provision protects the right of the child to survive. The Code punishes only criminal abortion that is voluntarily causing miscarriage, this does not include the spontaneous abortion. This section also distinguishes "with child" and "quick with child", the punishment is more for the later because the movement of the fetus has started in that stage.

Medical Termination of Pregnancy Act, 1971

Comprehensive Abortion Care (CAC) is established for giving access to women's high-quality abortion care in the place they live or work. To provide a legal framework to these CAC services, the Medical Termination of Pregnancy (MTP) Act, 1971 was enacted. This act allowed termination of pregnancy up to 12 weeks of gestation period on the opinion of a single medical practitioner and 20 weeks of gestation period on the opinion of two medical practitioners. The object of this act is to save lives and relieve women from physical and mental pain.[4] The medical practitioner should deliver an opinion on good faith. In one of the cases, a petitioner sought for abortion in her 26th week of pregnancy because the fetus had a complete heart block, but the court failed to acknowledge the mental agony of the woman and dismissed the petition.[5]

The termination of pregnancy can take place only when:

  • Continuation of pregnancy is a risk or may cause grave injury to the pregnant woman’s life.

  • The child born would be handicapped due to physical and mental abnormalities.

  • Pregnancy caused by rape.

  • Pregnancy caused due to failure of contraceptives and it is presumed it will affect the mental health of the women.

The victim who was raped allegedly and her pregnancy will lead to stress and agony which may result in a grave mental injury, therefore court permitted her to undertake abortion.[6] The term 'grave injury' is interpreted by the doctors in the cases on their whims and fancies.[7] The pregnant women's consent is needed to terminate the pregnancy, she has a personal free consent. In case she is minor or lunatic, then a written consent of a guardian is required. But this restricts the women's autonomy in the right over her reproductive choice, there can be a conflict of opinion between the minor and guardian. The court brought an exception to this and held that a minor can continue with her pregnancy against the wishes of her guardian, but the court did not clarify the course of action.[8]

A 12 years old girl's pregnancy due to rape was terminated by two doctors without her consent. The court held the two doctors had committed the offence of miscarriage and are punished under 313 of the Indian Penal Code.[9] As per the Medical Termination of Pregnancy Act, a registered medical practitioner can only terminate the pregnancy. The medical practitioner should have medical qualification under the Indian Medical Council Act and his name should be registered under the State Medical Register. The practitioner should be trained in gynecology as per the rules of the Act. By default, all government hospitals are permitted to provide the services of Comprehensive Abortion Care.

Sex-Selective Abortion

The Medical Termination of Pregnancy Act was however misused by sex-selective abortions. With the use of technology, the sex of the fetus was determined and sex-selective operations started taking place. To address this issue, the Pre-Natal Diagnostics Techniques Act was established to detect sex and to close illegal clinics. The Supreme Court in a landmark judgment criminalized the practice of sex-determination and gave directions to create public awareness in the society against the practice of sex determination. The court also expressed grave concern about discrimination against the birth of a girl-child in India.[10] The Pre-Natal Diagnostics was challenged on the ground that it was violative of Article 21 of the Constitution. It was held that the choice of giving birth based on the determination of sex cannot be a right itself.[11] In another case, the constitutional validity of this Act was challenged on the ground that it was violative of Article 14. But it was held by the court that sex determination is against the spirit of the law and it undermines the dignity of women.[12]

The Amendments of Medical Termination of Pregnancy Act

The Amendment in 2002: This amendment was introduced to facilitate better access for women in the private health sector. It decentralized the abortion services to the district level and increased the CAC services in the legal ambit. For ensuring the safety of women, more strict penalties were introduced to abolish unapproved sited and untrained medical practitioners to perform termination of pregnancy. The punishment was extended to seven years of rigorous imprisonment. The amendment also changed the word 'lunatic' to 'mentally ill' in all sections. The mentally ill refers to people who need treatment because of any mental disorder other than mental retardation.

The Amendment in 2014: The government took cognizance of the issues of safe abortion services for women. This amendment concentrated on:

  • Expanding the provider base

  • Increasing the upper gestation period limit for legal Medical Termination of Pregnancy.

  • Increasing access to legal abortion services for women by spreading awareness.

  • Increasing clarity of the Medical Termination of Pregnancy law

The Medical Termination of Pregnancy (Amendment) Bill, 2020

The main purpose of this amendment is to lift the upper limit of legal abortions to 24 weeks, but it applies only to special categories of women. The special category of women includes rape victims and other differently-abled women and minors. This formed a gap because women outside the special category cannot terminate the pregnancy with a period of 24 weeks even though if it causes damage to her mental health. For termination of pregnancy for 20 to 24 weeks, two medical provider's advice is compulsory. Another important feature of this amendment is that the women's identity whose pregnancy has been terminated shall not be revealed except authorized by law. This helps in protecting the privacy of women. The words 'married woman or her husband' in the Act has been replaced with 'any woman or her Partner'. This allows all women irrespective of marital status. This bill also removes the need for guardian approval in case of termination of pregnancy for a minor girl.


Indian society presumes that abortion is a sin and it's against the customs and practices. But the perceptions of law has enhanced the people's mind and claims a practical society. The personal liberty enshrined under Article 21 allows the women to make decisions about her reproductive organs without anyone else's consent. Even though the mother's rights conflict with the child's right, in order to protect the grave injury caused to the mother, the pregnancy can be terminated. One of the milestones in our legal system is the Medical Termination of Pregnancy Act, 1971. This act legalizes abortion under certain circumstances. Even after a few amendments, the abortion laws are not completely liberal in India. Therefore, it stills needs development to suit the dynamic society.

[1] Suchitra Srivastava v. Chandigarh Administration, (2009) 9 S.C.C. 1. [2] K.S. Puttaswamy v. Union of India, (2019) 1 S.C.C. 1. [3] The Shantilal Shah Committee Report, Ministry of Health, Government of India. [4] Nand Kishore Sharma v. Union of India, A.I.R. 2006 Raj.166. [5] Nikhil D. Dattar v. Union of India, (2008) Writ Petition (L) No 1816 (Mumbai HC). [6] Dr. Rajeswari v. State of Tamil Nadu, 1996 Cri. L. J. 3795. [7] M. Kala v. The Inspector of Police, 2015 (WP8750/2015). [8] V. Krishnanan v. Rajan Alias Madipu Rajan, (1994) 2 M.W.N. (Cri) 333. [9] Dr. Nisha Malviya v. State of Madhya Pradesh, 2000 Cri. L.J. 671. [10] CEHAT v. Union of India, (2001)5 S.C.C. 577. [11] Vinod Soni v. Union of India, 2005 Cri.L.J. Bom 3408. [12] Vijay Sharma v. Union of India, A.I.R. 2008 B.O.M. 29.


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