Name: Roshan Singh Lamba
Bennett University
Course: BA-LLB(H)
Year/Sem: 1st year, 2nd Sem
Medical Termination of Pregnancy Act was enforced in
1971, which made termination of pregnancy legal, prior to which such Act was illegal.
The offender was punished under Section 312 of the Indian Penal Code, 1860,
which states that “Whoever voluntarily tries to cause the miscarriage to a
woman except in good faith or where the woman’s life in danger shall be liable
for imprisonment which may extend to three years and shall also be liable to
fine”[1]. The
offender was to be punished with imprisonment, which is extendable for up to
seven years and a fine[2].
Before enacting the act, termination of pregnancy was
regarded as immoral as it is against God’s will. However, termination was
justified in society’s eye when termination is done for the rape victim,
deceased baby, lady of unsound mind or suffering from any physical injuries.
Even termination of an abnormal child was seen as a disgrace.
Medical Termination of Pregnancy Bill was introduced
in Lok Sabha and Rajya Sabha in 1969 by Shantilal Shah Committee, formed by the
Central Family planning Commission in 1964. The committee recommended
liberalization of pregnancy termination, intending to reduce the risks of life
associated with illegal termination of pregnancy. In 1966, the Shah committee presented
a report on, requirements of society, why termination was essential from the
foresight of moral, ethical, legal and scientific manner. The Bill was passed
in 1971 in the Parliament and was enacted as the Medical Termination of
Pregnancy Act, 1971 and was implemented from 1972. The bill was amended in 1975,
which aimed to make it more successful and less complicated in society. To make
termination safe and legalized, the act provided the termination to be done
only by a licensed, registered medical practitioner. Section 2 (d) of the
Medical Termination of Pregnancy Act, 1971 states, termination is to be done
only by a licensed, registered medical practitioner[3].
Deaths caused by
the unsafe termination of pregnancy, illegal terminations, failure caused by
lack of proper training of person performing termination, lack of
infrastructure, need for the termination of unwanted pregnancy gave birth to
Medical Termination of Pregnancy Act, 1971.
Medical Termination Act, 1971 provides various provisions by which pregnancy can be terminated legally:
Section 3 of the Act states the situations in which the
medical practitioners can terminate a pregnancy, (1) it states that any medical
practitioner who is registered in medical council, had license can terminate a pregnancy
as per the provisions of the Medical Termination Act and will not be guilty of
the offence. (2) a medical practitioner can only perform the act of termination
of pregnancy only when the pregnancy length has not exceeded twelve weeks, and
it can be performed by two or more practitioner when the length of pregnancy
had exceeded twelve weeks but did not exceed twenty weeks. Act of practitioner is
considered to be done in good faith when he performs the termination of
pregnancy with the consent of the women bearing child, under the belief of risk
to the life of the pregnant women, involvement of any physical or mental
injuries to the women, and when there is risk involved with the life of the
baby that, a baby might suffer from severe physical abnormalities. The practitioner
can even terminate the pregnancy of a girl who has not attained the majority or
if attained the majority, is lunatic by the consent of her guardian[4].
Section 4 of the Medical Termination of Pregnancy Act,
1971 specifies the place where a medical practitioner can perform the terminate
pregnancy of women fulfilling the requirements of Section 3 of the Act. It states
that (1) termination of pregnancy can only be done in any hospital or medical
infrastructure established or maintained by the government. (2) Medical
termination of pregnancy by a registered medical practitioner at any place which
the government has approved of ordered by the court of termination of pregnancy
as per the provisions of the Medical Termination of Pregnancy Act, 1971[5].
Section 5 (1) of the Act states that provisions of
Section 3 and 4 (length of pregnancy and treatment by two registered medical
practitioners) of the Medical Termination of Pregnancy Act, 1971 will not be
applicable if a registered medical practitioner is of the opinion that,
termination of pregnancy is the immediate and only way convenient to save the
life of a pregnant lady. (2) If the termination of pregnancy is performed by a
non-registered medical practitioner or by any other person, they shall be
liable under the Indian Penal Code, under Section 312, 313, 314, 315[6] according
to the situation of the case[7].
Section 6 and 7 of the Medical Termination of
Pregnancy Act, 1971 gives the power to the Central Government to make rules and
amendments in the Act by passing the amendment bill in both the houses with the
suggestion of the medical practitioners, Health and Welfare Ministry, and
grants power to the state government to make regulations as per the suggestion
of the State Medical Association, State’s Health and Welfare Ministry[8]. Section
8 of the Act protects the action of the registered medical practitioner for the
injuries caused by the act done under good faith or provisions of the Act[9].
Termination in different States:
Termination of pregnancy has been a contentious
subject for the past decades. Some people believe that it is the right of the
women to choose whether to terminate her pregnancy or give life to a child,
while some believe termination is wrong because of religious, political,
emotional, and personal beliefs. Termination rates vary from state to state due
to the beliefs of the society. Some states have snatched the right of women and
made termination illegal throughout the state.
Twenty-six countries throughout the world had declared the termination
of pregnancy illegal, whereas, in thirty-seven countries, a pregnancy
termination is allowed only when it is necessary to save the life of a pregnant
lady.
Need for amendment and proposal of the amendment Bill (2021):
Medical Termination of Pregnancy Act, 1971 requires
amendment as it is way too old compared to the advancement made in the medical
infrastructure and technology for performing termination. Termination of
Pregnancy Bill (2020) was passed in the Lok Sabha in March 2020 and was
approved in Rajya Sabha in March 2021. Now amendment bill seeks the signature
of the President for its implementation. Under the current act, a pregnant lady
seeking termination of her pregnancy whose length is beyond twenty weeks needs
to face many legal complications, whereas, amendment bill (2021) amends this
provision of the Medical Termination Act, 1971 by introducing the provision of termination
from twenty to twenty-four weeks. Most of the women who undergo the termination
process suffer injuries and losses life due to the unsafe, illegal termination
because of the rigid provisions of the act.
Bill seeks to
provide a safe and convenient provision for the safety of the women seeking
termination. Amendment Bill (2021) proposed to remove the provision of section
3 (2) of the Medical Termination Act, 1971, which establishes the requirement
of the consent of guardian in case of a lunatic or minor girl undergoing
termination of her pregnancy, it will make an easy path for the women seeking
termination of her pregnancy in a convenient, safer and effective way. Bill
provides that the women's identity is to be kept as a secret by the
institution, medical practitioner who performs the termination of pregnancy. According
to the amendment bill, a pregnant lady can undergo termination of her pregnancy
when (a) she got pregnant in case of rape, (b) when pregnancy can cause her severe
mental damage, (c) in case of failure of any contraception used, (d) when there
is danger of mental and physical injuries, (e) chance of fetal irregularities[10].
In my opinion, the Termination of Pregnancy Act, 1971
needs amendments as when the act was enacted, there was a lack of infrastructure
and technology for the termination of pregnancy in which the state has made its
development, in present times, there are developments in the infrastructure, equipment’s
which are required for the safe termination of pregnancy, seeking courts
permission consumes a time which leads to the exceeding the length of the
pregnancy and thus, as per the provisions of the Medical Termination of
Pregnancy Act, 1971 the termination could not be performed, there should be
fast track courts for hearing the petition for medical termination as an urgent
need, as per the proposed provisions of the Bill, it is necessary to protect
the identity of the lady undergoing termination to maintain herself in society
and not to be disregarded by the society which is not presented in the Act. The
amendment bill also provides for a provision of the no consent required of the
guardian in case of termination of pregnancy of lunatic women or a minor shows
the women empowerment in the society and reforms in the society for the benefit
of women.
Somehow, the bill lacks specific provisions for the
benefit of the women willing to terminate her pregnancy as the bill provides
provision for an increase in the length of pregnancy for termination from
twenty weeks to twenty-four weeks only for the pregnancy caused by rape,
suffering from mental or physical injuries, might put her life in danger
whereas, it does not have any provisions for the women who wishes to terminate a
pregnancy but does not belong to the special categories as mentioned in the
provisions.
After looking into the provisions of the Medical
Termination Act, 1971 and the provisions made in the Medical Termination of
Pregnancy Amendment Bill (2021), 1971, it can be inferred that enactment of the
amendment will clear the path for women to safely terminate their pregnancy as
per the provisions of the act, it will take time to eradicate the illegal
practices followed largely and to implement guidelines and policies for making
new amendment bill effective and women-friendly.
References
India, G. o. (n.d.). MTP Act (No. 34 of 1971). Retrieved from www.indiacode.nic.in: https://www.indiacode.nic.in/bitstream/123456789/6832/1/mtp-act-1971.pdf
Iqbal, N. (2019, October 22). Medical
Termination of Pregnancy Act Failing Women Who Need It The Most.
Retrieved from www.indiaspend.com:
https://www.indiaspend.com/medical-termination-of-pregnancy-act-failing-women-who-need-it-the-most/
Welfare, M. o. (2016, November 04). MTP
ACT, 1971. Retrieved from main.mohfw.gov.in:
https://main.mohfw.gov.in/acts-rules-and-standards-health-sector/acts/mtp-act-1971
[1] Section.
312, ‘Indian Penal Code, 1860’.
[2] Section. 312, ‘Indian
Penal Code, 1860’.
[3] Section.
2, ‘Medical Termination of Pregnancy Act, 1971’.
[4] Section. 3, ‘Medical
Termination of Pregnancy Act, 1971’.
[5] Section.
4, ‘Medical Termination of Pregnancy Act, 1971’.
[6] ‘Indian
Penal Code’, 1860.
[7] Section.
5, ‘Medical Termination of Pregnancy Act, 1971’.
[8] Section. 6, 7, ‘Medical
Termination of Pregnancy Act, 1971’.
[9] Section.
8, ‘Medical Termination of Pregnancy Act, 1971’.
[10] ‘Medical
Termination of Pregnancy Amendment Bill (2021), 1971’.
