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;
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' 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.
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
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
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.
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
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
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
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
4. Final Conclusion -- Therefore, killing an unborn entity is not
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)
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
I. Abortion is not an
exercise of the privilege of self-defense, since the unborn child is not
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
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
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.
a woman, who causes herself to miscarry, is within the meaning of
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.
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.
termination of pregnancy:
Sec.3: When pregnancies may be terminated by registered medical
(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
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
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.
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
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.
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
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.
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.
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
ii. Anesthetic equipment, resuscitation equipment and sterilization
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
(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.
delays to conduct MTP lessened
The 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
# It specified the indications when termination of pregnancy could be
# 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
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.
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
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.
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.
"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,
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
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
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
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.
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.
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.
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.
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 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
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
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
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.
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.
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"
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.
affecting Psychological Responses:
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
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.
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.
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
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
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.
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.
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
4. They could be because of peculiarity of the patients condition
5. They could be sequelae of MTP procedure either short term or long
MTP law is quiet precise. However,
in our situation many times laws are not followed in the spirit or the
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:
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
# 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
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,
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
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.
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
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
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
'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
'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
'"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
'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
'Mukherjee GG, Das H.S., 'Ethical issues in MTP", Manual on Medical
Termination of Pregnancy "An Update", 3rd edition, Pg: 29, FOGSI
'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.