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Abortion:Abortion, a subject often discussed in medico-legal circles, interims various streams of thoughts and multiple discipline, like theology, because most religions have something to say in the matter, ethics, because human conduct and its moral evaluation are the basic issues involved; medicine (in several of its sub-disciplines), because, interference with the body for a curative or supposedly curative issue is at focus; and law, because regulation of human conduct by sanctions enforced by the state through the process of law ultimately become the central theme for discussion.
Abortion may be classified into various categories depending upon the nature and circumstances under which it occurs. For instance, it may be either, (i) natural; (ii) accidental; (iii) spontaneous; (iv) artificial or induced abortion. Abortions falling under the first three categories are not punishable, while induced abortion is criminal unless exempted under the law. Natural abortions is a very common phenomena and may occur due to many reasons, such as bad health, defect in generative organs of the mother, shocks, fear, joy, etc. Accidental abortion very often takes place because of pathological reasons where pregnancy cannot be completed and the uterus empties before the maturity of fetus. Induced abortions is denied in law as an untimely delivery voluntarily procured with intent to destroy the foetus. It may be procured at any time before the natural birth of the child.
When does life begin?
'When does life begin' is a key question to be addressed in the matter of abortion. Technically, by definition, abortion is destruction of life after conception and before birth. Between these two points of terminus, life must have begun. However, literature reveals that life sciences have not offered any well-laid guidelines to determine these crucial questions. Some non-medical men and women have made bold assumptions on the subject, which have come to represent the layman's view. For example, one view states 'to my mind life begins at the moment of conception, and to suggest otherwise seems to be casuistry.....conception is the magic moment......' another view states: 'I do not believe a fertilized ovum is human life in the common sense meaning of the term, I believe human life begins at birth. Or more technically, when a foetus is sufficiently developed to be capable of living if removed from the mothers womb'. That human life begins at the moment of conception is a religious tenet that makes no claim whatsoever to scientific truth.
Each of these two views standing at the extremes, creating a dilemma for the lawmakers. If one were to go by the first view that life begins at the moment of conception then interference with the foetus at any stage of its foetal existence could be seen as unethical unless one could take the stand that the rules of the ethics do not recognize a right to life. "Even the unborn child is entitled to protection by the law from the moment of its conception" . This is logically perfect, but pragmatically impracticable. On the other hand, at the other end of the scale is the second view, the other extreme stand, namely, life begins only on birth. This creates a dilemma of a different type.
One may then argue that if there was no life before birth, then all sorts of legal restrictions and sanctions dealing with the inference of the foetus become unnecessary except to the limited extend of preventing such interference in the interest of the mothers health. On this logic whether or not a mother should be free to abort belongs almost entirely to the category of the individual therapeutic questions. It eases to have any ethical or legal relevance. No country gives absolute choice to the women throughout the period of pregnancy. The fact that during the second or third trimester, almost all countries restrict interference with the foetus except on medical grounds implies that they regard interference with the foetus as deserving of legal condemnation. Such condemnation could only be on the basis that there is some kind of life deserving protection.
The Child v. The Mother:
Abortion raises a variety of moral, legal, social and medical questions. If the pregnant women finds it necessary to terminate her pregnancy, does she have the right and upto what moment and on what conditions? Since such termination raises a conflict between the rights of the child and the mother (the child's right to survival and the mother's right to terminate the pregnancy), who is competent to adjudicate the claim? As a basic premise law states, that killing a foetus is not permissible. If then qualifies, this opposition by specifying a series of exceptions. These exceptions purpose to be based on some specific consideration. One such consideration is concerned with the conflict between the rights of the mother and the rights of the child. The mothers right is allowed to prevail, in some situations. The women's supposed superiority in his matter is jurisprudentially explained in terms of the "necessity" of the situation coupled with her right to self-defence. To save the life or the health of the women, on a balance of probabilities, the lesser evil is looked upon as the limitation of the foetus to that of the mother.
As per Section 81 of Indian Penal Code an act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not be otherwise be awarded and which if they had allowed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. Reliance on the doctrine of self-defence is nothing new to the law. All legal systems recognize the right of a living individual to protect himself from danger to his own life and, for that purpose, to use necessary force even to the extend of causing the death of the person creating the danger.
The law most undoubtedly authorizes the man who is under reasonable apprehension that his life is in danger or his body in risk of grievous hurt to inflict death upon his assailant even when the assault is attempted or directly threatened by the apprehension must be reasonable and the violence inflicted must not be greater than is reasonably necessary for the purpose of self defence. In this case the continuation of the existence of the foetus is looked upon as dangerous to the life of the mother. The balancing of one life against another life in such circumstances may be understood by some stretch of reasoning. The difficulty arises on the issue of balancing of one person' health against another person's life. Here arise certain ingrained complexities. Life and health do not get equated on a common platform.
The fact that the women's health would be endangered if the pregnancy is carried to the full term was not (until fairly, recently) recognized as a justification for abortion. That step has not been taken but obviously it constitute a greater inroads in the sanctity of life (of the foetus) than a provision intended to guard against danger to the women's life.
Rights of an Unborn Child:Several ethicists, such as Michael Tooley , Mary Anne Warren, James Rachels , and Virginia Ramey Mollenkott , have put forth criteria that a being must fulfill in order to be considered fully human. For some these criteria apply to any entity, whether before or after birth. In fact, according to Tooley, birth has no bearing on the moral status of the newborn. Those who defend criteria for full humanness make a distinction between "being a human" and "being a person." They argue that although the unborn are part of the species Homo sapiens, and in that sense are human, they are not truly persons since they fail to fulfill a particular set of personhood criteria.
Although the defenders of personhood criteria do not agree on everything, their underlying philosophical assumptions are similar enough that it is safe to say that if it can be shown that these assumptions are significantly flawed then no personhood criteria theory can succeed in supporting the abortion-rights position. Since Mollenkott's view is the most clear and succinct example, use of her article can be used as a point of departure to critique the personhood criteria position. Although much of critique of this view can be found in the criticisms of the other decisive moment and gradualist theories, its underlying philosophical assumptions, which are oftentimes not addressed by the proponents of this view, are deserving of a separate critique.
In order to fully grasp Mollenkott's position, consider the following:
Kay Coles James of the National Right to Life Committee claimed that fetal personhood is a biological fact rather than a theological perception. But in all truthfulness, the most that biology can claim is that the fetus is genetically human.... The issue of personhood is one that must be addressed through religious reasoning. Hence, the Lutheran Church in America makes "a qualitative distinction" between the claims of the fetus and "the rights of a responsible person made in God's image who is in living relationships with God and other human beings." Except in the most materialistic of philosophies, human personhood has a great deal to do with feelings, awareness, and interactive experience."
Mollenkott's argument can be put in the following argument-outline:
1. Premise 1 -- A person can be defined as a living being with feelings, awareness, and interactive experience. (I assume she means some sort of consciousness.)
2. Premise 2 -- An unborn entity does not possess the characteristics of a person as defined in Premise 1.
3. Intermediate Conclusion -- Therefore, an unborn entity does not possess personhood.
4. Final Conclusion -- Therefore, killing an unborn entity is not seriously wrong.
Others, such as Tooley and Warren, give more elaborate criteria of human personhood. For instance, Tooley claims that a being "cannot have a right to continued existence unless he possesses the concept of a subject of experiences, the concept of a temporal order, and the concept of identity of things over time." It follows that a nonself-conscious being with no desire for its own continued existence has no right to life. The reason behind this proposition is that only an entity that functions in a certain way is a person with a full right to life (i.e., fully human). This proposition cannot be maintained for several reasons.
First, it does not seem to follow from the intermediate conclusion (that an unborn human is not a person) that abortion is always morally justified. Jane English has pointed out that "non-persons do get some consideration in our moral code, though of course they do not have the same rights as persons have (and in general they do not have moral responsibilities), and though their interests may be overridden by the interests of persons. Still, we cannot just treat them in any way at all." English goes on to write that we consider it morally wrong to torture beings that are nonpersons, although we do not say these beings have the same rights as persons. "If our moral rules allowed people to treat some person-like non-persons in ways we do not want people to be treated, this would undermine the system of sympathies and attitudes that makes the ethical system work."
Second, one can question why one must accept a functional definition of personhood to exclude the unborn. It is not obvious that functional definitions always succeed.
Similarly, when a person is asleep, unconscious, or temporarily comatose, or a newborn, he (or she) is not functioning as a person as defined in premise 2. Nevertheless, no reasonable person would say that this individual is not a person while in this state.
Consequently, it does not make sense to say that a person comes into existence when human function arises. Rather, it does make sense to say that a fully human entity is a person who has the natural inherent capacity to give rise to human functions. And since an unborn entity typically has this natural inherent capacity, (he or) she is a person. As John Jefferson Davis writes, "Our ability to have conscious experiences and recollections arises out of our personhood; the basic metaphysical reality of personhood precedes the unfolding of the conscious abilities inherent in it." Therefore, an ordinary unborn human entity is a person, and hence, fully human.
In other words, because the unborn human is a person with a certain natural inherent capacity (i.e., her essence), she will function as a person in the near future, just as the reversibly comatose and the temporarily unconscious will likewise do because of their natural inherent capacity. The unborn are not potential persons but persons with much potential.
If the unborn child is a human being entitled to rights (i.e., a person), it is entitled to the right to life. The right to life implies a correlative duty in all other persons not to take the life of the unborn child, except in two cases: viz., (i) the case in which the child commits aggression against the life of another person; or (ii) the case in which the continued life of the child and the continued life of another person are mutually incompatible because of the existential circumstances. These cases involve: (i) the privilege of self-defense, which permits a victim of aggression to defend his own life, even if that defense requires taking the aggressor's life; and (ii) the privilege of self-preservation, which permits an innocent individual to take the life of another innocent individual in an 'emergency' situation in which both cannot survive, and the survival of one depends upon the denial to the other of the means of survival. The question is: Does abortion come within either exception to the duty of every individual to respect and preserve the life of every other individual?
I. Abortion is not an exercise of the privilege of self-defense, since the unborn child is not an aggressor.
A. Aggression involves an act of will or an act of negligence. It can never arise from an act that is caused by existential forces beyond an individual's control. I.e., there cannot be aggression if human action, in the sense of purposeful behavior, is not involved at all.
B. The creation of the fertilized egg and its attachment to the uterine wall are not "acts" of the unborn child in the sense of being purposeful. They are the result of existential biological forces independent and beyond the control of the child (although not of the father and mother), and brought into play by the combined acts of the father and mother.
C. Since the unborn child cannot rationally be held responsible for its own creation, it cannot rationally be held to have committed aggression by coming into -- indeed, being brought into existence. Aggression implies responsibility; and no human being is responsible for his own creation.
D. Since the unborn child is not and cannot be an aggressor, the mother cannot invoke the privilege of self-defense against its continued existence in the one place in which, at that stage in its development as a human being, it is both logically and biologically appropriate for it to be. (N.B.: whether the father in a rape situation is guilty of aggression is another matter. In any event, his guilt cannot rationally be imputed to the child.)
II. Abortion is not an exercise of the privilege of self- preservation, since, in the usual case, the mother's life is not endangered by the pregnancy.
A. A privilege of self-preservation arises only in those situations in which the lives of two or more equally innocent persons are in jeopardy, and not all of them can be saved.
B. Pregnancy is not such a situation in the normal case. Were it so in extraordinary cases, the mother would have a privilege to defend her own life through abortion, or to choose to give up her life to save the child (assuming this could be done medically). In such a situation, neither the state nor even the father of the child would have any right or privilege to interfere with the mother's decision.
III. In sum, since abortion does not come within the two recognized exceptions to the right to life, and is inconsistent with the right as far as the unborn child is concerned, abortion must itself be a form of aggression repugnant to libertarian principles.
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 herself 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.
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, 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.
Qualification of Doctors:
According to the Act, 'a medical practitioner who possess any recognized medical qualification as defined in cl. (h) of Sec.2 of the Indian Medical Council Act, 1956 whose name has been entered in a state medical register and who has such experience or training in gynecology or obstetrics as may be prescribed by rules made under this Act is permitted to conduct the termination of pregnancy'. Allopathic doctors who are duly registered with the State Medical Council are authorized to do abortion. Other like homeopathic, ayurvedic, unani doctors and unqualified doctors like RMP, Quacks, et al are not entitled to perform abortion. Even among allopathic doctors, only those who satisfy one or the other of the following qualifications are eligible to do MTP. Once a doctor satisfies the require qualifications, he automatically becomes eligible to do abortions. He need not apply for eligibility to any authority. A doctor cannot refuse to do abortions on religious grounds. If he does so, his name is liable to be erased from the Medical Council. If he is a Govt. doctor, he is liable for departmental action.
Consent for Abortion:Section 3(4) of MTPA clarifies as to whose consent would be necessary for termination of pregnancy.
(a) No pregnancy of a woman, who has not attained the age of 18 years, or who having attained the age of 18 years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in cl (a), no pregnancy shall be terminated except with the consent of the pregnant woman.
It is important to note, in this section, that the consent of the woman is the essential factor for termination of her pregnancy. The husband's consent is irrelevant. Therefore, if the woman wants an abortion but her husband's objects to it, the abortion can still be done. However, if the woman does not wants an abortion but her husband wants, it cannot be done. However, the consent of the guardians is needed in the case of minors or lunatics.
Where the pregnancy can be terminated:Section 4 specifies the place where, under MTP, a pregnancy can be terminated. It stipulates that an operation must take place in either "a hospital established or maintained by the government" or in "a place which has been approved for the purpose of this Act by the government." However exceptions are made for emergencies. Under section 5(1), a doctor may terminate a pregnancy if it is "immediately necessary to save the life of the pregnant woman". In such situations, the requisites relating to the length of pregnancy, the need for two medical opinions and the venue for operation do not apply. However, it needs to be pointed out that one aspect of this emergency clause tends to restricts rather than liberalize the old law. Section 312 of the IPC permitted abortions by anyone with the object of saving the life of the mother, but under MTPA only a doctor can terminate the pregnancy.
Approval of a Place:
No place shall be approved under Cl (b) of sec.4
(1) Unless the Government is satisfied that termination of pregnancy may be done therein under safe and hygienic conditions.
(2) Unless the following facilities are provided therein namely:
i. An operation table and instruments for performing abdominal gynecological surgery
ii. Anesthetic equipment, resuscitation equipment and sterilization equipment
iii. Drugs and parental fluids for emergency use.
Thus, the oft-argued following justifications in favour of the permissive abortions are found in the Indian law.
(1) Therapeutics: The old restrictive Indian abortion law has permitted abortion to save the life of the mother. In addition, the reformed law, as seen above allows abortions when the mother's life is not threatened, but when continued pregnancy will cause damage to her mental and physical health.
(2) Eugenics: the basic of eugenic abortion is that there is a justification for abortion when it is known before birth that the child will be born mentally or physically deformed. The unborn child should be relieved of a life of misery.
(3) Pregnancy caused by rape: the problem of a pregnancy caused by rape may effect the mental health of the mother. It is assumed that the victim mother does not want the child and does not want to bear the continuing result of a crime for which she was not culpable.
(4) Social and economic considerations: A popular argument in favour of abortion is based on the absolute right of the woman to control the use of her body. She has a right to an abortion on demand to terminate any pregnancy, which she decides she does not want. Admittedly, the right to control the use of one's body is founded on ideas of liberty, and restrictions thereon may amount to an invasion of privacy.
In countries where abortion is legal, death rates are usually below 1 per 100,000 procedures. Abortion is a very safe operation if the operation is performed by skilled medical practitioners, having proper facilities and equipments. In developing countries like India with scarce medical resources treatment of complications of abortion often posses a heavy burden on the health care system. According to recent estimates made by the World Health Organization, about one-quarter to one-third of maternal deaths are due to complications of (illegally) induced abortion. This can be prevented through offering easily accessible safe abortion services and through family planning services and education. Reliable statistics show that in many countries where abortion is legally available, the abortion rate is much lower than in countries where it is completely illegal.
Procedural delays to conduct MTP lessenedThe Medical Termination of Pregnancy Act was first enacted in the year 1971 to legalize and regulate the conditions of termination of pregnancy. This was the first step to legalize abortions which were performed by quacks and which instilled fear in the minds of pregnant woman.
The key features of the Medical Termination of Pregnancy Act, 1971 were as follows:# It indicated when pregnancy could be terminated i.e. upto twenty weeks of pregnancy.
# It specified the indications when termination of pregnancy could be done.
# It indicated that only a qualified registered medical practitioner as defined under the Act could conduct termination of pregnancy and relied upon the Indian Penal Code for punishment if conducted by any other.
# It also indicated that termination of pregnancy could be done only in a place established, maintained or approved by the Government.
Thus it did help to legalize and regulate the termination of pregnancy and really did much for upliftment of women. Gradually, with an increasing number of centers and with new problems cropping up, the Act was amended and passed on December 18, 2002.Essential features of the amendment are as follows: -
# In the amended Act, the word "mentally ill person" covers a wider variety of mental diseases and disorders than the word
# lunatic" of the Principal Act.
# In the amended Act, recognition of a place for the purpose of carrying out MTP is now at district level rather than the state capital and hence procedural delays should be less.
# In the Principal Act, there was dependence on IPC to enforce discipline. In the amended Act, the punishment is incorporated in the Act itself.
Social Implications of The Act:
Govt. of India has enacted much social legislation since independence. In practice we find that these very good social legislation have remained in the books and the govt. is not able to implement these laws. Take for example the antidowry bill or the Child marriage bill or the antisati bill. Child marriages still takes place. The MTPA is the only social legislation that has found wide acceptance without any resentment. Unwanted pregnancy is a social stress in all societies. Before the MTP act, unwanted pregnancy was managed by resorting to illegal abortion, infanticide or deserting the newborn in lonely places. Now with the MTP act, the social fears are considerably reduced and the urban and the rural community have taken advantage of the Act. Patters of sexual and reproductive behaviour have changed significantly over the years. Most important change is the increase in the premarital sex in all societies. There is also an increase in the out of wedlock births. There is increasing freedom enjoyed by the teenagers in social life. This often results in increased teenage pregnancy. The tragedy is that physiologically and anatomically there is a trend towards earlier maturation while process of social development is lagging behind. Young boys and girls are exposed to knowledge and information, and values not shared by parents or older members of the family.
The impact of the MTP act should be judged in the context of changing social values and attitudes. The social implications of MTP in unmarried girls and MTP in married woman are different. MTP in married woman is not considered as a social stigma, whereas MTP in unmarried girls is not easily accepted and hence girls are taken to other distant places for MTP, and hence the girl's social future is not destroyed. This social legislation has certainly reduced incidence of suicide in these women because they can seek safe abortion under the law. The health of the woman has also shown improvement because of the MTP facilities. The acceptance of the family planning methods after MTP has also increased. It is paradoxical that though the community is taking the advantage of MTP services, they want to maintain secrecy and not let the neighbor about it.
Here negative aspects of the MTP Act have also to be considered. Though the MTP services are now available in rural areas, we are not sure of its effectiveness and safety. The high-risk cases are not recognized and MTP is performed in such cases without adequate back-up services. This results in immediate complications and long-term morbidity in term of infertility, menstrual disturbances and pelvic inflammatory disease (PID). These long-term complications may have social implications in form of broken marriages, divorce, and promiscuity. Mehlar, Director General of WHO has said, "because of serious effects of legalized abortion on the health and reproductive capacity of women, upon the stability of family and upon the morality of country specially its youth, it should be carried out only in a hospital and that to by a gynecologist."
How true are the words in context of the present situation in India? The Govt. must see that MTP is done by trained surgeons only and that to in a hospital set-up. Gynecologist must also share some blame for MTP complications. The young girls and women come to the gynecologist at any time for MTP. This is because they do not want to inform the parents or other family members about it. Some deaths on operation table have been reported because of the practice of performing quick MTP without proper checkup. It is necessary that gynecologist do not perform MTP at unearthly hours and without proper facilities to fight complications if they do arise. The Indian MTP act is most liberal in practice, it almost amount to "abortion on demand".
It is said that termination of pregnancy is performed on flimsy ground such as 'approaching examination'. 'Marriage in the family', 'going on a tour or vacations', etc. It is said that medical fraternity encourages such unnecessary terminations more often for financial reasons. It is necessary to check this trend of pregnancy termination on flimsy grounds. It is often not realized that to frequent and unnecessary pregnancy termination can result in infertility and PID. Though the MTP act was never thought to be used as a method of family planning it is unfortunately used as an alternative to regular methods of family planning by many women. It is the social responsibility of obstetricians to counsel all patients coming for MTP about the use of some contraception. It should be emphasized that contraception use is much safer than MTP.
The use of emergency contraception (EC) by women should be encouraged in time of contraceptive accidents or failures. At present easily available methods for emergency contraception is oral contraceptive, and intrauterine device. The Obstetrician must remember that some woman coming for MTP may be HIV positive if they are used to multiple partners or their husbands/ partner is used to multiple sex partners. There is a risk of STD/HIV transmitted to medical and paramedical staff if precautions are not taken. It is debatable whether HIV testing should precede all MTP procedures. The Govt. of India has banned pre natal sex determination test for selective female feticide and violation of law is punishable with fine and imprisonment. The centers for pre natal test facilities have to be certified by govt. agencies. These laws are enacted to reduce selective female feticide which is a good objective, it is not clear if these laws have reduced MTP procedures for selective female feticide. These social legislations succeed only if there is will nit he part of the community and the medical people. The social purpose of these laws will not be served unless the medical people and the community co-operate in its implementation.
Ethical Issues In MTP:Ethical and legal debate regarding prevention of unwanted pregnancies has been continuing for many years throughout the world, and this has established an idea of legislation of termination of pregnancy within certain terms and conditions. In India MTP act was passed in 1971 and implemented in Apr 1972 and revised in 1975. Basic principle is that pregnancy can bet terminated when there are some maternal and fetal indications, and is to be done by 20 weeks. But inspite of legislative and judicial action, ethical controversies surrounding MTP still continues.
Ethical issues in MTP:
Though many people believe that MTP is immoral but in today social context it is a reality. The ethical and legal issues regarding MTP currently revolve around the quality of service, right of the dependent minor to give her own consent for MTP, fetal viability and the coercion. A few of the ethical issues are highlighted here.
Unsafe Abortion:It is estimated that 40-60 million abortions take place throughout the world and half of them perform unauthorized person mostly in developing countries with grave consequences (WHO, 1990). Health education and community awareness are the basic aspects of its prevention.
Illegal abortions are performed much more frequently in India with their disastrous results even today Inspite of liberalization of the Medical Termination of Pregnancy Act. Two cases of unsafe abortions are reported where the procedure was carried out by doctors without any training in midwifery and family planning. One patient had extensive small bowel injury secondary to uterine perforation but survived whereas the other expired due to septicaemia, peritonitis, disseminated intravascular coagulopathy following uterine perforation.
Induced abortion signifies voluntary or willful termination of pregnancy, whether permitted by law or not, before viability. Induced abortion may be illegal (mostly septic abortions) or legalized abortions usually Medical Termination of Pregnancy (MTP). Unfortunately the decline in illegal abortions that one might have expected when abortions were legalized has not taken place.
The term "unsafe abortion" proposed by the World Health Organization (WHO) lately has been accepted by most other international health institutions. Unsafe abortion means "abortion not provided through approved facilities and/or persons. Unsafe abortion is one of the great neglected problems of health care in developing countries.
Unsafe abortions are performed 15-20 times more often than safe legal abortions in India, at present. Unsafe abortion are mostly performed by untrained village abortionists, chiefly female dais or untrained midwives, village unlicensed doctors called quacks, licensed doctors without any training in midwifery and family planning, as well as trained doctors including gynecologists who do not wish to disclose these procedures for socio-economic and legal reasons. In both these cases, the abortions were performed by doctors without any training in midwifery, and family planning.
It is estimated by the WHO (1994) that in the Indian subcontinent 15-24 unsafe abortions take place per 1000 women aged 15-49 years.It is estimated (WHO, 1994) that in India 70-89 women per 100,000 live births die from unsafe abortion, the risk of death is 1 in 250 procedures. A study on illegal abortion in rural areas, conducted by the Indian Council of Medical Research (ICMR) revealed that the extent of illegal abortion (13.5 per 1,000 pregnancies) in comparison with legal abortion (6.1 per 1,000 pregnancies) was still quite high and the trend in the past 17 years (1972-1989) could not show a tendency for illegal abortion to decline (ICMR, 1989).
In a series of 950 septic abortions, 6.47 per cent i.e. 64 per 1000 cases died . The common causes of death are peritonitis, septicaemia, endotoxic shock, haemorrhage and tetanus. The first patient in the study had a very rare type of bowel injury, in addition to ileal perforation. The bowel was pulled through the uterine perforation while its serosa was held back from the level of ileal perforation upto just one foot away from duodeno - jejunal junction and was found like the folds of an accordion. The second patient died of septicaemia with endotoxic shock, peritonitis, acute renal failure and DIC. This infection was probably due to lack of adequate aseptic and antiseptic precautions.
Mortality and morbidity rates following illegal abortion are very high and make the life of many women miserable. All attempts must be made to reduce the incidence of illegal abortion by proper legislation, propaganda and increasing availability of contraceptive and abortion services.
Medical Termination of Pregnancy (MTP) is a maternal health care measure, which helps to avoid the maternal mortality and morbidity resulting from illegal abortions. Under the provision of the Act, pregnancies upto 20 weeks can be terminated under the certified opinion of one or two registered medical practitioners depending upon the period of gestation. Pregnancy termination can be performed on humanitarian, eugenic, medical and social grounds . A variety of induced abortion services are available in Asian countries and these may be obtained from
1. Government hospitals and centers
2. Municipal hospitals and maternity homes
3. Non-Government organizations (NGO) or voluntary agency clinics, and
4. Private hospitals, nursing homes or clinics.
The services are completely free of charge/cost in government and municipal centers. It is important to understand that establishment of good abortion services on a completely free basis is a cost benefit measure.
The assertion that abortion is too simple a procedure to warrant formal training is not supported by facts. Complication rates are significantly higher when general physicians, without any training, perform abortions. Examination of rates of complications occurring in a teaching hospital based abortion clinic show that rates are significantly lower for resident physicians after training than before training. The findings demonstrate that first and second trimester abortion techniques can be improved by training and that, when properly supervised trainees can accomplish these procedures safely.
Many of the General practitioners or Primary Health Center (PHC) doctors are unable to provide services when first approached either because of lack of skill to perform the procedure or lack of required physical facilities. A crash training programme, specially for medical officers working at Block level Primary Health Center, in MTP and other surgical procedures is being implemented in four states with the grants-in-aid from the Government of India (Ministry of Health and Family Welfare, Government of India, 1990).
Only after the successful performance of 25 suction evacuations under supervision is the practitioner licensed to perform abortions on his own (Ministry of Health and Family Planning, Government of India, 1975) . The risk of women dying from legal abortion is exceedingly rare. Mortality from legal induced abortions has declined substantially in recent years. It averages 0.6 per 100,000 procedures in the developed countries. The risk is clearly related to the type of procedure used, length of gestation and recognised/unrecognised general health problems present at the time of abortion.
Lack of quality service:
It is unethical that abortion care service is not always accessible the women who needed. Quality care such as proper pre-operative check-up, operative competence and follow-up are essential for preventing complications. Role of physician in counseling the pregnant woman is immense regarding her own health and the health of fetus. A balanced view and proper counseling in the part of the physician can help the woman to resolve her conflicts and dilemmas.
MTP on Coercion:
Voluntarisms should be the keystone in the management of fertility control. Coercion is most unethical. In out society, MTP is not the decision of the woman herself rather it is the decision of her husband or family influenced by community.
As contraceptive measures are widely and freely available woman often undergo repeated MTP's for unwanted pregnancies as a birth control measures. It is absolutely unethical. Using contraceptives are much safer than MTP, as it may result in morbidity and mortality.
Duration of Pregnancy and MTP:1st trimester abortion is more ethical because it is simpler, and kinder and safer than 2nd trimester abortion. In 2nd trimester mother may feel the fetal movement and in this stage MTP, often she suffers from physiological trauma and sense of guilt.
MTP in Teenage:
Combinations of various factors, like sexual fantasies, attraction to the opposite sex, lack of sex education and also media influence the young people to teenage sex, premarital sex, much more than in the past. Proper counseling, sex education and adolescent health care are must.
Pre Natal Diagnosis and MTP:Ethical controversies always appear in pre natal screening and specific termination. A great dilemma exist in couples for making decision for termination of handicapping abnormalities. Things become worse where the pregnancy is much wanted one. It may be accepted by many couple, but may not be by some for religious and moral reasons. In less severe chromosomal defects as with sex chromosomal aneuploidies, it is agonizing decision for the couples. So, proper counseling must be done and every view of the couple must be respected.
Sex Selective Abortion:Sex selective abortion is of grave social concern. It is unethical and illegal too. Social and family pressures are such that inspite of legislation pregnant woman does opt for prenatal sex determination for selective female feticide. We must realize that selective feticide challenges equality of sex and status of women. Failure to recognize equality of sex is the sign of ageing and decaying society.
Young girls are conspicuous by their absence in Fatehgarh Sahib, a small town in the prosperous state of Punjab. On the streets, in homes, in schools and even in meetings to discuss the abhorrent practice of pre-natal sex determination, mothers are accompanied only by little boys. Not surprising, since Fatehgarh district has the dubious distinction of having the lowest child sex ratio in the country. With the child sex ratio (0-6 years) plummeting from 874 girls for every 1,000 boys in 1991 to an abysmal 754 in 2001, it is apparent that something is seriously amiss.
The results of the 2001 census set alarm bells ringing amongst policy planners and leaders alike. Punjab, with a child sex ratio of 793, was forced to acknowledge the situation and take corrective steps. Responding to the declining sex ratio as a social problem, the Akal Takht - the highest seat of spiritual and temporal authority amongst Sikhs - issued a hukumnama (diktat) on April 6, 2001, prohibiting pre-natal sex determination and threatening violators with social boycott and excommunication. On its part, the Punjab health department set in motion various awareness campaigns to counter the menace. Unimpressed, the Supreme Court in May last year directed all states, particularly Punjab, to show their commitment to the issue by implementing the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) (PNDT) Act, 1994.
In their writ petition, activist Sabu George, CEHAT (Center for Enquiry into Health and Allied Themes and MASUM (Mahila Sarvangeen Utkarsh Mandal) had asked for the implementation of existing legislation banning prenatal sex-selection and also an amendment of the law to include newer sex selection techniques. With states still dragging their feet, the Supreme Court issued another order in December last year demanding proof that state governments were serious about implementation of the PNDT Act. In a flurry of activity, the Punjab government registered 14 cases over the next few months. Ironically, it is women themselves who are being further victimized in the zeal to implement the Act. Says Veena Sharma, Chandigarh-based lawyer with the Human Rights Law Network (HRLN), "A woman who aborted a five-month fetus following a sex-determination test was picked up by the police, even as she was bleeding profusely, and imprisoned along with her sister-in- law."
In this case, the doctor who performed the ultrasound is absconding. In fact, he has been granted anticipatory bail while the hapless woman has no recourse to justice since the Public Prosecutor takes no interest in her case. It is the HRLN that is now supporting the woman while the case drags on.
The involvement of the police only contributes to corruption, since the persons running the ultrasound centers get prior information and either wind up operations or run away from the scene. In fact, the police need not enter the picture at all, since the PNDT Act provides for an 'Appropriate Authority' to implement the law. Faulty interpretation of the law adds to biased implementation. For instance, registering a case under the archaic Section 213 of the Indian Penal Code of 1860 (though it has been superseded by the Medical Termination of Pregnancy Act, 1971, which legalizes abortion) shifts the focus from sex-determination - which is the crime - to abortion, which is not a crime.
Other misguided measures taken by the government include putting the onus on pregnant women rather than focusing on medical practitioners, the major culprits. For instance, an April news report titled "Pregnant women beware, Big Brother's watching", quotes Director (Health) Dr DPS Sandhu saying that all pregnant women in Punjab who already have two daughters will be placed under observation. If such a woman undergoes an abortion, she will have to satisfy the health authorities about the reasons for this. Women's health activists are up in arms about this, terming it a violation of fundamental reproductive rights and access to abortion.
That it is possible to stem the problem at the level of the medical practitioners, who provide the tests, has been amply demonstrated in Haryana, which also has a low child sex ratio of 820. The focus here has rightly been on unscrupulous and commercial-minded doctors and not on the women who are themselves victims of family pressures, says Manmohan Sharma of the Voluntary Health Association of Punjab, pointing out that Punjab could learn from the Haryana experience.
Dr BS Dahiya who, in his capacity as Civil Surgeon in Faridabad, functioned as the Appropriate Authority under the PNDT Act, notes: "Doctors have forgotten their ethics, and are organized in a gangster-like mafia, making about Rs 20,000 (1 US$=Rs49) per day in commissions from ultrasonographers." Dahiya, with his rapid-action teams of decoy women patients and audio-visual documenting of evidence, has been at the forefront of nabbing doctors caught violating the PNDT Act. He managed to confiscate equipment, de-license several prominent doctors in Faridabad, Ballabgarh and Palwal and shut down their lucrative businesses. For his pains, Dahiya has been shunted out as the Director of Health Services, Haryana - ostensibly on a promotion, but in effect getting him out of the direct implementation of the Act.
Private doctors seem to be the main culprits in Punjab as well. Says Satwant Kaur, President of the Mahila Mandal (women's group) in Baladi Kalan village in Fatehgarh district, "Government dispensaries are virtually dysfunctional and people are forced to go to private doctors, who are unscrupulous and profit-mongering. Unless they are stopped, sex determination will continue."
Experts also blame the population control policy with its undue emphasis on the two-child norm. Says Dr Mira Shiva, Head of Public Policy Division of the Voluntary Health Association of India: "The proposed disincentives - such as denying the third child a ration card or enrolment in a government school, and denying the parents government jobs - would further encourage the practice of sex determination."
Researcher Dr Sabu George, one of the petitioners in the Supreme Court case quotes the China example to bolster the point. "Demographers have found that small families work against girls. In China, where sex-selection was encouraged for 20 years as a measure of population control, the scarcity of girls is so acute now that in 2000, China had to pass a law to tackle the growing problem of abduction of young women!"
With demographic projections estimating that there will be 40 per cent 'missing girls' in Punjab in the forthcoming generation, officials are getting panicky. Harjeet Taneja, the District Program Officer claims that the government is doing its best to raise awareness about the evil of sex-determination and female feticide. "We have organized functions when a girl is born to give the message that girls are as important as boys, coined slogans like "A Girl is Born! Make Merry!", done wall-writing and put up posters about the girl child."
As for the Akal Takht's hukumnama, one year down the line, the diktat seems to have had little impact. Religious diktats cannot make a difference when girls have a secondary status in society, say the village leaders. And as with the other steps to tackle the problem, the hukumnama is aimed more at the Sikh public than at the Sikh doctors who carry out sex-determination tests.
The villagers are skeptical about politically correct stances unsubstantiated by real changes. Says Paramjit Singh, sarpanch (village chief) of Khaniyan in Fatehgarh Block, "Unless girls are given equal rights, no amount of sloganeering is going to help. Only concrete action like education, jobs, a proper status in society and legal rights will make a genuine difference to girls' status." Tanwant Kaur, Sarpanch of Salani village, concurs: "The dowry system has to stop, and daughters must be welcomed, not treated as a burden. We have to have a social movement to encourage boys to marry without dowry."
Punjab is the most obvious example that economic development does not necessarily lead to betterment in women's status. The state with one of the highest per capita incomes in the country at Rs 18,862, has a much lower sex ratio as compared with less 'developed' Bihar which has a per capita income of only Rs 5531, but a sex ratio of 921.Unless there are material changes in women's status, it is unlikely that slogans and diktats will change the situation for girls, the fast-disappearing species in Punjab.
MTP and AIDS:Though some authorities advise termination of pregnancies in every HIV positive case it is a debatable issue. Various studies show that percentage of transmission from other to baby varies from 12 to 15 % (in European collaboration studies) to 45% in African countries.
Ethical issues leading to legal issues:
Legal problem may arise in the following issue:
1. Termination done without proper counseling and consent.
2. Continuation of pregnancy following MTP. It is an ethical problem where pregnancy is continued in spite of attempted termination both in respect of mother and fetus. If the baby in later life comes to know that he/she was an unwanted one a serious psychological set back leading to hatred to the parent might be imparted upon. From legal point of view, it may be stamped as act of negligence.
3. Among many reasons of failed MTP 'faulty techniques' is one.
4. Improper diagnosis and MTP. It is unethical to attempt MTP without confirming the pregnancy. Often ectopic pregnancy is missed. This might endanger the woman's life and consequently invite litigation.
5. Morbidity and even mortality following the procedure attributable to negligence and improper care given to her in follow-up.
6. MTP in Primigravide is of grave ethical concern. The first pregnancy is the most welcome one to a family, so the physical and mental trauma imparted to her cannot be replaced. Moreover there is a chance of infection leading to morbidity and even in future, secondary infertility- a cure to womanhood in our society.
Psychosocial Aspects of MTP:"No woman can call herself free until she can choose consciously whether she will or will not be a mother". Margaret Sanger
Women have come a long way since the day of Margaret Sanger when abortion was an illegal, secretive and socially unacceptable procedure, hidden from family members. Today with MTP legally available in most countries of the World, the physiological trauma and social isolation are considerable less. Most studies report psychologically favorable outcomes following MTP in the majority of women. In a landmark study, Osfosky and Osofsky reported psychologically favorable outcomes in 64.6% of 250 women undergoing legal abortions in New York State. On the other hand, there is no denying that MTP can be an emotionally disturbing procedure in many women. However in the socially favorable circumstances following legalized abortion, the patient's relief of getting rid of the unwanted pregnancy outshadows and feeling of guilt that either used to accompany an illegal and socially unsanctioned procedure. In a minority of patients, we see major psychological disturbances in the form of major psychoses or depression.
Factors affecting Psychological Responses:MTP Indication:
In general, if the patient is seeking the abortion for an unwanted pregnancy, the psychological sequala is favorable. Also when the pregnancy is a result of rape or in an unmarried woman, the result of the MTP is likely to be psychological relief . However, when a patient undergoes MTP for fetal genetic, or maternal medical reasons, the patient is likely to be deeply disappointed by her failure to achieve a wanted pregnancy.
A large majority of the patients requesting MTP in our country come from large joint family. The doctors have observed in their own practice that when such women undergo MTP with a full psychological support of their husbands and family members there incidence of negative psychiatric sequelae is minimal. On the contrary, woman undergoing social isolation tend to succumb to guilt feeling and adverse physiological reaction.
Gestational age at Termination:2nd trimester abortion constitutes a high-risk group for potential physiological distress. One reason for this could be that the longer the duration of pregnancy the greater the chance the woman develops emotional bonding with the unborn fetus. The second reason is the nature of technical procedure involved in late MTP's.
Technical Procedure of MTP:All first trimester MTP's involve the relatively quick procedure of suction and evacuation. On the other and, most procedures for 2nd trimester MTP involve subjecting the patients to a delivery procedure. In the general hospitals of out country, these women often abort in labor rooms in the vicinity of sounds of new born crying. These women definitely contribute a high-risk group for negative psychological sequelae.
The MTP decision Making Process:
The greater the difficulty a patient and her family undergoes in making a decision to terminate the pregnancy, the more likely will be the negative responses after termination. If a woman experiences doubt about terminating her pregnancy, she should be counseled patiently. Hasty decision-making can often lead to deep regret and subsequent depression or psychosis.
Compulsory Parenthood and Unwanted Child:No discussion on the psychological aspect at MTP can be complete without emphasizing the major negative effects that can occur when a pregnancy is forced on a woman inspite of today's liberal abortion laws. This can occur due to emotional pressure from the husband or from the senior member of the family. This can also occur due to misconceptions about safety of modern legalized abortions or enforced religious and moral; values. Several studies have emphasized the long-term harm that can occur to women mental health as a result of unwanted and mandatory motherhood. One should also not forget the fate of unwanted children who tend to be physically and mentally impaired.
Female sex-related MTP's In India:Inspite of Govt. legalization the efforts of social organization against the obnoxious practice, illegal sex determination and female fetus MTP continue to be carried out widely in out country. The doctors have come across several instances of severe adverse psychological reactions in women following repeated MTP's of this nature. Further studies are warranted to identify the factor related to this phenomenon and its physiological impact on women and on the society at large.
Medicolegal Cases In MTP:
In other consultations about illness, patient readily accepts advice offered by the doctor. In contrast, in most consultations about MTP, patients own opinion matters a lot. There is no illness here and hence providing proper information about the methods and the risk of abortion becomes very important. Unfortunately especially in our country, this aspect is given least importance and hence is a problematic situation; patient's unhappiness is aggravated. Medicolegal cases in MTP arise I various ways. It could be:
1. Due to omission to follow technical procedures of the law.
2. It could be because of complications during the procedure.
3. They could be due to certain unavoidable circumstances like atonic hemorrhage
4. They could be because of peculiarity of the patients condition itself.
5. They could be sequelae of MTP procedure either short term or long term.
MTP law is quiet precise. However, in our situation many times laws are not followed in the spirit or the letter.
MTP by a nonrecognized person: in one of the cases, a doctor was held responsible because he allowed his nonrecognised assistant to carry out the MTP, which ended with complications.
MTP in nonrecognised centers: MTP law lays down precise requirement and procedures for recognition of place for MTP. In recent survey carried out by an NGO (Cehat), it was found that only 22% of eligible centers are registered under MTP Act. There are many reasons including 'red tapism'. But that hardly protects one in the court of law.
Consents and Opinions: Law also requires certain forms of consents and opinions to be filled in before an MTP, though it is rarely followed to the letter of the law, when a mishap occurs. Lawyers tend to dig out all details to show that the doctor was negligent. Hence, it is always better to atleast make notes in proper format on the case paper regarding these matters. A proper consent is extremely important for MTP. Consent in case of MTP is many times controversial. One thing is certain that an adult woman can give consent for her own MTP, and her spouse's consent is not required. However, it is wise to get either husband or any other adult person's signature as a witness to the woman's consent.
In case of an unmarried girl her boyfriend has no legal status and his consent is not valid in the yes of the law. A doctor got into trouble where a minor girl claimed herself to be a major and signed the consent. As in the eyes of law it is the doctor's responsibility to ensure the age of the patient and to take her guardian's consent if she is minor.
Medical Problems arising due to complications because of the procedure: there is a case of sudden death due to anaphylaxis to local anesthesia. There even though it may have been unavoidable, but he questions remain whether testing was done for the local anesthesia and whether proper treatment of anaphylaxis was tried or not, becomes proper medicolegal issue. Sometimes a gynecologist takes all the due care but if the case records are incomplete, he or she is likely to be implicated. In another case death was caused even before starting the procedure during induction of Pentothal anesthesia, but the doctor was implicated because no preoperative investigations were done and patient turned out to be a diabetic.
These are the situations where guidelines should be laid down, which are the minimum investigations needed before a simple procedure like MTP. Then comes the problem of complications. In a famous case from the south, bleeding occurred due to perforation of the previous lower segment cesarean section scar. The patient went to the court implying negligence. The defence pleaded that it was a cervical pregnancy, perforation was unavoidable and hence there was no negligence. Reading of this case truly makes an interesting lesson as to how lawyers can take part all actions on part of the doctors absolutely thread bare. In this case the prosecution lawyer brought out several problems , example:
# Patient did not want MTP;
# USG was not done before MTP;
# Proper procedures not followed, for example forms etc;
# Laminaria tents should not have been used;
# Cervical pregnancy should have been proved by histology of removed uterus;
# Anesthetists notes mentioned persistent pulmonary hypertension;
# Noted records did not ay which type of cervical pregnancy it was.
So this was how all the minute details were discussed. Fortunately solid defence by the defendant saved the day.
There have been other problems like perforation and perforation with injuries to intestines and bladder. Perforations may not be called as negligence, but failure to diagnose a perforation even when indicating sign are present, is held to be negligent. In recently reported case, VP Patel v. Dr. Ajmera , patient had perforation during MTP. It was not diagnosed early and the patient developed fecal fistula and the doctor was held negligent by the Gujarat state Forum and the compensation of Rs.2 lakhs was awarded. Sometimes situations are peculiar. In one case, before National Consumer Forum. Compensation upto Rs.50 lakhs was asked. Here patient was having pregnancy with large fibroid.
The pregnancy was sought to be terminated but apparently continued. Patient delivered normally a healthy child, but still the patient has gone to the court claiming mental agony and possible harm to the baby. This case is yet to be decided. In these cases of failure of MTP, it is say for the lawyers to conclude negligence. Fortunately in a recent case where an ectopic pregnancy was missed when D and E was carried out, the gynecologist was held not guilty of negligence by the Tamil Nadu State forum. Hence the gynecologist must emphasize the fact that here is always a small failure rate in all these procedures, which may not be necessarily mean negligence. This is true of other complications also. In such cases advice for proper follow-up if documented can go a long way absolving the doctor.
Then comes the last category of immediate or long-term sequelae. Proper documentation and meticulous explanation help alleviate the medicolegal problems especially if mention of complications have been made in the consent forms. In a recent case of short-term sequelae, peculiar circumstances where MTP was carried out can be pointed out. The Patient was alright for 2 weeks, and then suddenly expired while walking on the road. Because of the sudden death postmortem was carried out in which few infected products of conception were reported in the uterus. Since no other cause of death could be given, the police made out a case of criminal negligence against the doctor. This case is also yet to be decided.
In conclusion one can see, a simple procedure like MTP has a lot of legal implications, most of which can be avoided with proper pre-operative information and care.
August 10 1971 was a historic day in more sense than one. A path breaking legislation was enacted by Parliament called the Medical Termination of Pregnancy Act. It was supposed to herald an era which would eliminate unwanted or forced pregnancies, or going to quacks that resulted in postnatal trauma.
It was also for the first time anywhere, that failure of contraception was legally accepted as a valid reason for termination of a pregnancy, irrespective of the fact that the woman was undergoing her first or subsequent pregnancy, or whether or not she had any surviving children. The consent of the woman was required in writing and a medical practitioner had to form an opinion in good faith that the pregnancy being terminated was either life threatening or its continuance would cause grave physical or mental injury to the woman. In fact, all he had to do was to tick an option on a printed form without even recording the clinical reasons for doing so. It was as simple as that. Everybody got the impression that abortion had been legalized, whereas the Act only specified certain conditions under which a pregnancy could be terminated. Most doctors, lawyers and social workers are still under that wrong impression today.
Women activists hailed this as a big step in empowering their kind. It was anything but that, as the choice to be exercised by the woman was in name only; the Act had left that choice with the medical practitioner. That the act was passed with the intent to also control the population is understandable, but this part of the Act which covered the failure of contraception was to cause devastation of such magnitude that the Child Sex Ratio (CSR) in the age group of 0 to 6 dropped sharply from 962 females per 1000 males in 1981, to 927 in 2001, that is a drop of 35 points in 20 years compared with a drop of 14 points for the previous 20 years from1961 to 1981. The rate of decline had accelerated by 150%.
Had the lawmakers envisaged this, they would have thought twice. Female foetuses were being selectively aborted in very large numbers on grounds of failure of contraception in blatant contravention of the spirit of the Act. Ultrasony arrived in the early 1980s, which explains the sudden drop thereafter, though the Act itself became law in 1972. Sex could be determined anytime after 12 weeks and a simple tick or a signature in blue or black ink in an ultrasound clinic could mean a death sentence. The male child syndrome which has always been prevalent in India was now a realizable, low cost option. Advances in technology, legislation gone badly wrong, and a disregard for ethics by the noble profession together achieved for India the dubious distinction of having one of the lowest CSRs in the world.
There was no need to undergo the entire term of pregnancy as also the process of childbirth before getting to know whether it was a girl or a boy. Very convenient, very clean, very cheap. It was like a win win situation for all; the family, the clinic, the doctor and the woman who for the first time by herself or coerced by her family could actually opt for the sex of the child by repeatedly conceiving and aborting. Never mind that her mental and reproductive health was being battered in the process. There was a proliferation of clinics in the 1980s to determine sex and abort thereafter. That most of the clinics were not approved as per the provisions of the Act, and therefore illegal did not matter; as the public perceived that abortion had been legalized. A law which was essentially passed to curb illegal abortion ended up doing exactly the opposite. The tragedy is that this has not been recognized by the government, activists and NGOs who are in this field of work.
The Census' findings of Child Sex Ratios are particularly damning. It reveals a deadly arc-spanning counter clockwise from Himachal in the North to Maharashtra in the West, which has become a vast killing field. This geographically contiguous area also includes the states of Punjab, Haryana, Rajasthan, and Gujarat. UP and MP also cling to this area but to a lesser extent. One welcome observation is that every state of the North East (where under-development is wide-spread) is well above the national average and the average of every other state including Andhra which is the highest at 964 inspite of a literacy rate just above Bihar, UP and Rajasthan.
Just as there is an arc in the Northern and Western parts of the country, it has a polar opposite that extends from the South towards the East, in which the drop in the CSR is well below the national average. This arc constitutes all the Southern states as well as Orissa, West Bengal and Bihar. The major part of the killing field is the so-called developed and industrialized belt where the per capita income as well as the literacy rate (except for Rajasthan and UP) is well above the national average.
The only state where there has been a positive growth in the CSR is Kerela; no surprises here, since the structure of society is matrilineal and the dominant political philosophy is Marxist even though the Congress is in power today. The ratio has increased in the last decade by 5 points to 963. West Bengal is the only state where the overall sex ratio has steadily risen over the last 40 years and has contributed positively to the Indian average.
It is estimated that had the CSR stabilized in 1981 there would have been an additional 3 million girl children in the head count taken in 2001. A study conducted on 7000 abortions recorded in Pune showed that a single male foetus had been aborted. Some studies have suggested that up to ten times the number of officially reported abortions are performed in rural areas under primitive conditions, and in unregistered clinics in urban areas. This figure is impossible to verify. This feticide on a horrendous scale has led to the steep drop in the CSR. Translated into sociological impact, this would imply an increase in the incidence of sexual crime against women and children as also increased hostility between males leading to breakdowns in families disorder in day-to-day life, forced homosexuality and a rise in the incidence of HIV. The standard text on Indian Social Problems will need substantial revision.
The legislative dimension:
The problem was identified in the 90's, when the 1991 Census showed a marked decline in the CSR. Activists and concerned organizations decided to target sex determination rather than the primary cause, which was the legislation itself. This was possibly due to a misplaced apprehension that women's rights would be affected. Unfortunately, the PNDT (Pre-Natal Diagnostic Technique) Act which was enacted in 1994 and its later versions, meant to prevent pre natal sex determination proved to be ineffective pieces of legislation.
Beginning with an incorrect understanding of the Medical Termination of Pregnancy Act, we have travelled a long way down a horrific path, and there appears no end in sight to the carnage of the girl child. What is needed now is to re-examine the applicability of the Act in the area of contraceptive failure, and begin again with a fresh perspective.
The Act continues hereafter with regard to the place where the pregnancy may be terminated and the need for approval. The problem is with Explanation II, the language of which actually encourages a practitioner to terminate pregnancy on account of failure of contraception. Let us understand that failure of contraception is very rare and yet can be used as an excuse to go on trying to conceive till a male child results. Studies conducted by the government as well as a number of NGOs had indicated in the early 90s that almost all pregnancies were terminated on this very ground. This should have indicated that things were going wrong.
If the state feels that a pregnancy is to be terminated as a result of failure of contraception as a population control measure or even as a matter of choice, then would it not be appropriate to have two or more surviving children before such termination takes place? The language of Explanation II states that failure of contraception may be presumed to constitute a grave injury, and not shall be presumed to constitute a grave injury as in Explanation I with regard to Rape. This implies that a doctor could refuse termination on grounds of failure of contraception unless the pregnancy was life threatening or likely to cause grave mental injury. The state had passed the onus to the medical practitioner who had to decide each case on its merits in good faith.
This discretion was not exercised, as the statistics have quite amply revealed. How can a healthy pregnancy cause grave mental injury to a healthy married woman who is conceiving for the first time or is the mother of one child unless there are exceptional circumstances? Clearly, there is need for introspection by the medical fraternity regarding sex determination as well as termination within the meaning and intent of the Act.
A small modification to this Act could resolve the issue to some extent. At the end of Explanation II, delete the full stop and add a comma followed by ' provided proof is furnished that at least two surviving natural or legally adopted children are a part of the pregnant woman's family. Exceptions may be considered by recording reasons for doing so.' This clause would only then be complete. All other clauses would remain applicable. What proof is to be furnished can be specified in the rules, which are enacted subsequently. Also, there should be a stay on termination of pregnancies on grounds of contraceptive failure unless they are within the meaning of the Act and the proposed modification, else, if the law is subsequently modified, it would amount to our complicity in adding to the statistics.
This simple modification of Explanation II would have a far-reaching effect in arresting this decimation of the female population. A woman would still have recourse to all the provisions of the Act even if was her first pregnancy. The restriction would be applicable as a guideline, only when the clause of failure of contraception was invoked with a view to avoid families pressurizing a woman to produce a male child as also to clarify the position of the state to all citizens including doctors. The discretion to refuse the abortion would still rest with the practitioner even if the woman had two or more children. The clarification which has been suggested in no way modifies the Act itself. Since termination on account of failure of contraception may be permitted only after two children generally and in certain exceptional cases otherwise, there would be little need to get the sex of the child determined.
This modification of the Act would primarily protect the interest of the woman as she would not be coerced either by tradition or family to undergo repeated pregnancies as has been happening for more than two decades now. Abortions conducted on a massive scale in unregistered clinics is the major problem area, which needs to be addressed urgently. All legislation has completely failed. We can begin the process only by recognizing this fact. Failed laws need to be reviewed. Social reform will hopefully follow.
Since it was doctors and demographers that formed the most vocal lobby in promoting the MTP Act, it was their concerns that found representation in the clauses of the Act. The Act confers a monopoly on medical opinion in matters related to the length and type of pregnancy. Accordingly pregnancies upto 12 weeks require the authorization of one doctor, while those between 12 and 20 weeks need the opinions of two doctors. Given the context in which the Act was passed, the 1971 MTP Act legalizes and regulates medical practices related to abortion but fails to provide women with the means to control their reproduction.
One of the clauses states that an MTP may be conducted where any pregnancy occurs as a result of failure of any device or method used by any married women or her husband for the purpose of limiting the number of children.
This makes it quite clear that the state would be happy for abortion to be used as a means of population control. It is also interesting to note the specification of the term 'married woman'. This locates pregnancy within the context of marriage, thus incorporating cultural notions of chastity into the Act. Although, legally, unmarried women are not denied access to an MTP, social sanctions against pre-marital sex may take the form of doctors' censure or even refusal to perform an abortion. Such women if they cannot afford private medical services may choose to go to quacks rather than use public health services for fear of social censure and sanctions.
This is also documented by the Report of the Committee on the Status of Women in India (1974). In their suggestions for changes in the MTP Act, they recommend the need to clarify, for the benefit of those doctors who are reluctant to perform abortions on unmarried girls, that rape is not the only grounds to justify termination in case of unmarried girls, nor is there any legal obligation on the doctor to inform the police of an operation done in a rape case. Furthermore, they argue that it has to be reinforced that the consent of the patient's husband is not required for termination.
The Report of the Committee on the Status of Women in India suggested several other changes that were needed in the MTP Act. They pointed out that while the consent of minors over the age of twelve was necessary for other surgical procedures, according to Section 3, sub section (4) (a) of the Act, consent of a minor girl was not required for the MTP. They suggested that this distinction was uncalled for and may lead to guardians compelling young girls to undergo this operation even when they do not want it. The consent of the patient should be essential. This clause also applies to lunatic women of any age.
Furthermore, they pointed out that Section 8 of the Act, provides an overriding precaution to the doctor for any damage caused by the operation. Since no such protection is given is given for other operations, this seems an unnecessary clause and may lead to negligence. It may, therefore, be dropped. The Act has yet to be amended, and this is so even after other Acts regulating the use of MTP have been passed. While it is important that women have the right to terminate their pregnancies at will, the statements made by the government seem to imply that the MTP Act is perceived as a means of population control. Rather than being a means for women to control their own bodies and increasing their reproductive choices the Act may actually function to reduce their choices by allowing the state to carry out a subtly coercive family planning programme. It is clear that there is an urgent need for the premises and assumptions of the MTP Act to be re-examined and it's clauses to be altered in order to prevent its misuse and to ensure that it enhances and not reduces women reproductive rights and control over their bodies.
'Richards P. Edward and Rathbun C. Katharine, Medical Care Law, 1999 edition, An Aspen Publications.
'Morgan Derek, Issues in Medical Law and Ethics, 2001 Edition, Cavendish Publishing Limited.
'Cox H.W.V., Medical Jurisprudence and Toxicology, 6th edition, 1998, The Law Book Co. (Pvt.) Ltd.
'Shaw S.P., Laws of Child in India, 2001 edition, Allia Law Agency.
'Goonesekere Savitri, Children Law and Justice, 2000 Edition, Allahabad Law agency.
'Davies A.C.L., "Don't Trust Me, I'm a Doctor: Medical Regulation and the 1999 NHS Reforms, Vol: 20, No.3, 2000, Oxford journal of Legal Studies.
'"Abortion and The Medical Termination of Pregnancy Act, 1971", Relevant Provisions of the Special Act, Pg.35, Symbiosis Center of Health Care.
'Deshmukh KK, Medical Termination of Pregnancy Act, 1971, Manual on Medical Termination of Pregnancy "An Update", 3rd edition, Pg: 8, FOGSI Publications.
'Chowdhury NN Roy, General Survey of Maternal Mortality, Morbidity, Complications and Sequelae of MTP, Manual on Medical Termination of Pregnancy "An Update", 3rd edition, Pg: 12, FOGSI Publications.
'Bhatt RV, social Implications of the MTP Act, Manual on Medical Termination of Pregnancy "An Update", 3rd edition, Pg: 25, FOGSI Publications.
'Mukherjee GG, Das H.S., 'Ethical issues in MTP", Manual on Medical Termination of Pregnancy "An Update", 3rd edition, Pg: 29, FOGSI Publications.
'Roa KA, role of Prenatal Diagnosis in MTP, Special Aspects of MTP, Manual on Medical Termination of Pregnancy "An Update", 3rd edition, Pg: 85, FOGSI Publications.
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