MEDICAL TERMINATION OF PREGNANCY ACT 1971

Introduction

Ministry of Health & Family Welfare vide a notification dated October 29, 2014,
proposes to bring certain amendments in Medical Termination Pregnancy Act, 1971. The
Medical Termination Pregnancy (Amendment) Bill, 2014 proposes to exceed the limit for
termination of pregnancy to twenty four weeks. It seeks to amend Section 3 of Act of 1971
which deals with Termination of pregnancy by registered medical practitioner. It also
proposes to substitute the ‘registered medical practitioner’ with ‘registered health care’ and
sub section (2) which says that a pregnancy may be terminated by a registered health care
provider

(a) On the request of a woman, where the length of pregnancy does not exceed twelve
weeks.

(b) (i) where the length of pregnancy exceeds twelve weeks but does not exceed
twenty weeks or;

(ii) where the length of pregnancy exceeds twenty weeks but does not exceed twenty
four weeks and the woman falls in the categories, as may be prescribed.

The provisions of sub section (2) related to the length of pregnancy shall not apply to
the termination of pregnancy by registered health care provider where termination of such
pregnancy is necessitated by diagnosis of any substantial foetal abnormalities.

1
 Literature Review

1. Understanding of right to abortion.

Author: Sai Abishpa Gocchayat
The reasons because of which the act of abortion was so controversial are discussed.
During the early part of the 20th century a woman getting an abortion was a rare feat.
There were various reasons to it.

2. Medical Termination of Pregnancy Act: A Boon or a Bane for a Woman in India

- A Critical Analysis
Author: Pyali Sharma
In India, Pregnancy can be terminated till 20 weeks under Medical Termination of
Pregnancy Act, 1971. After that, either one has to go for illegal abortion or forcefully
have to bear the child. Niketa Mehta case is one of the best example to cite and
discuss about the plight of the women in India where women has the right of abortion
but with a limitation and this limitation has caused not only serious social, legal but as
well as reproductive health issue in women especially about their right for safe
abortion.

3. Criminal Law and Unborn: Indian Scenario

Section 312 of IPC was in use before the introduction of the MTPA 1971. Different
acts from UK and USA for abortion are discussed here. Even in England, before 1967
abortion was not allowed liberally. It was only allowed when there was a mortal
danger to the pregnant woman.

2
Historical Background of MTP act 1971

The abortion laws developed in the late nineteenth century existed largely unchanged. Until
the 1960's and 1970s, when a number of varied circumstances gave rise to a movement for
their reform.

Before MTP Act 1971 (IPC Provisions)

Prior to the Medical Termination of Pregnancy Act, 1971, a pregnancy could not be
terminated in India without attracting penal sanctions under the Indian Penal Code, 1860.
According to section 312 of Indian Penal Code , Abortion means,’ Whoever voluntarily
causes a woman with child to miscarry shall, if miscarriage be not carried in good faith for
the purposes of saving the life of the woman, be punished with imprisonment of either
description for a term which may extend to three 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 seven years, and shall also be liable to fine”.

Thus, under Indian Penal Code, no women can claim abortion as a matter of Right. Only
therapeutic abortion was allowed. And because of which mortality rate of the mother has
increased during that time due to illegal and unsafe abortion. So, to control the illegal
abortion new law relating to abortion was introduced i.e. Medical Termination of Pregnancy
Act, 1971. Section 3 of the Medical Termination of Pregnancy Act, laid down the grounds
where abortion can be performed.1

The MTPA, 1971 was primarily enacted keeping in mind the health and safety issues of PW.
It was believed that providing women with access to legal ways of aborting would reduce
reckless and untrained abortions thus, minimising abortion related health hazards and
mortality. Though it was initiated as a health concern for women, it revealed itself as a tool to
serve the patriarchal interests of the Indian society that has an undying obsession and
preference for the male child. The MTP act was modelled from England an USA. 2

1
https://www.ijsr.net/archive/v5i9/ART20161470
2
http://shodhganga.inflibnet.ac.in/bitstream/10603

3
Medical Termination of Pregnancy Act, 1971

In 1971, the MTP Act was passed which provided for termination of certain pregnancies by
registered medical practitioners (RMP’s). In a way, the MTPA, 1971 diluted the rigours of
the prevalent law, though abortion was not provided for in all cases of pregnancy but only in
specific cases.

Laws relating to abortion in foreign countries

In England prior to the Abortion Act 1967, abortion was generally prohibited. The woman
whose pregnancy has been an outcome of sexual violence for instance rape, incest etc, or
those deserted by their husbands and over-burdened mothers living in poverty with large
families failed to get medical abortion under the prevailing abortion law i.e., sections 58 and
59 of the Offences Against Person Act, 1861.3

In 1967, the United States of America liberalized the State of Colorado's abortion law and for
the first time allowed abortion on the ground that when child birth posed grave danger to the
physical or mental health of a woman, when there was highly likelihood of foetal
abnormality, or when pregnancy resulted from rape, incest or felonious intercourse.

The Court in the case of Roe v Wades held that State may not categorically prohibits
abortion by making their performance a crime, and the State may not make abortions
unnecessarily difficult to obtain by prescribing elaborate procedural guidelines. The
constitutional basis for the decision, that the Fourteenth Amendment right to personal privacy
embraced a woman's decision whether to carry a pregnancy to term. The Court further held
that since right of personal privacy is a fundamental right.4

Condition in India

In 1971, The Indian Parliament passed the Medical Termination of Pregnancy Act. . 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 RajyaSabha and LokSabha and
passed by Indian Parliament in August 1971. Medical Termination of Pregnancy Act, 1971

3
http://shodhganga.inflibnet.ac.in/bitstream/10605/55326
4
http://blog.forumias.com/apex-court-allows-abortion-for-ailing-foetus/

4
(MTP Act) was implemented from April 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 preamble of the act states" an Act to provide for the termination of certain pregnancies
by registered medical practitioners and for matters connected there with or incidental
thereto"..The measure was designed to create certain exceptions to the strict provisions of the
Indian Penal Code which declare that all abortions or "miscarriages" are criminal unless
undertaken to save the life of the pregnant woman.

The MTPA was modelled upon the British Abortion Act 1967. According to the new law
abortions are no longer illegal if they are performed for one of the several specified reasons
within a limited period after conception by a specially designated specialist and under
prescribed conditions.

The MTPA, 1971 is a small act consisting of only 8 sections. Under the Act, termination of
pregnancy is possible only if:

1. the continuance of pregnancy would involve a risk to the life of the PW; or
2. the continuance of pregnancy would involve a risk of grave injury to her physical or
mental health; or
3. If there is a substantial risk that if the child were born, it would suffer from such
physical or mental abnormalities as to be seriously handicapped. However such
termination is dependent on the gestational age of the foetus.

Medical Termination of Pregnancy can be performed only where:

• The length of the pregnancy does not exceed twelve weeks

There is another provision under which the pregnancy can be terminated validly irrespective
of the length of the pregnancy and the opinion of two registered medical practitioners. In this
case, the registered medical practitioner should be of the opinion, formed in good faith that
the termination of the pregnancy is immediately necessary to save the life of the pregnant
woman.5

5
http://manupatra.com/roundup/145

5
 Case Analysis

Nikhil Datar v Union of IndiaSLP (C) 5334 of 2009

Facts: Niketa Mehta, wanted to terminate her pregnancy after 20 weeks, after discovering
that her foetus had a life-threatening condition.

Issue: This case questioned whether mothers’ choice to abort in case the tests conducted at
advanced stage of pregnancy, like, beyond 20 weeks.

Judgement: The Bombay High Court directed the State of Maharashtra to constitute the
required Committee and submit its opinion as early as possible so that, in case the committee
was of the opinion that the pregnancy could be terminated, for the previously mentioned
reason, the patient could get it done from a recognised Hospital, super speciality institution.
The court stopped short of giving a pro-abortion judgement because of lack of expertise. The
committee was so torn between law and morality and hence a judgement cannot be
constituted.

The court held that the patient cannot go forward with the abortion and reasoned that ‘the
patient does not have any choice in the matter’ and cannot terminate the pregnancy beyond
20 weeks so long it contravenes the provisions of the MTPA.

Shri BhagwanKatariya And Others vs State of M.P2001(4)MPHT

Facts: The woman was married to a man named Navneet. Applicants are younger brothers of
said Navneet while BhagwanKatariya was the father of said Navneet. After the complainant
conceived pregnancy, the husband and the other family members took an exception to it, took
her for abortion and without her consent got the abortion done.

Issue: Whether an abortion can be done on a woman without the women’s consent.

Judgement: The Court opined that if we refer Section 3 of the Medical Termination of
Pregnancy Act, 1971, a doctor is entitled to terminate the pregnancy under particular
circumstances and if the pregnancy was terminated in accordance with the provisions of law,
it must be presumed that without the consent of the woman it could not be done. Present is a
case where a permanent scar has been carved on the heart and soul of the woman by

6
depriving her of her child. The Doctor was held liable.Thus, the case laws show that a woman
has an absolute right to abortion and no one can take away this right from her. The Judiciary
has been playing a vital role in securing these rights to women. Right to abortion is a
fundamental right of privacy.

Simi Vs. Latheesh C.P.Crl.M.C. No. 483 OF 2013

Facts: The petitioners herein are daughter and mother. The first petitioner has been residing
away from her husband for years. A mentally retarded son born in the wedlock is now with
the first petitioner. Her husband lodged a complaint before the learned Judicial First Class
Magistrate, Koyilandy, on the allegation that, with the assistance of the second petitioner, the
first petitioner aborted her pregnancy on 20/2/2006 in a hospital at Shornur. The said
complaint was forwarded to the police. After investigation, the police submitted final report
under Section 312 of IPC. Cognizance on the final report was taken by the learned Magistrate
in C.C. No.320/2011.

Issue: The petitioners now seek orders quashing the said prosecution on the ground that it is
legally unsustainable because the alleged abortion of pregnancy was done in an
authorised medical centre by a qualified and competent Gynecologist. Petitioners have also
produced copy of the statement given by the said doctor to the police during investigation

Judgement: What is made punishable under Section 312 of IPC is not miscarriage
voluntarily done in good faith for the purpose of saving the life of a
woman. Termination of pregnancy is dealt with under
the Medical Termination of Pregnancy Act 1971. Section 3 of the Act
authorises termination of pregnancy by registered medical practitioners, and Section 4 of the
Act provides that no termination of pregnancy shall be made in accordance with the Act at
any place other than a hospital established or maintained by Government, or a place for the
time being approved for the purpose of the Act by the Government or a District Level
Committee constituted by the Government with the Chief Medical Officer or District Health
Officer as the Chairperson of the said Committee.

7
Paton Vs. United Kingdom(1980) 3 EHRR 408.

Abortion is permitted if the continuance of the pregnancy involves risk. The right to life of
fetus is subject to an implied limitation allowing pregnancy to be terminated in order to
protect the life of a mother.

8
 LITERTURE REVIEW
Surrogate Motherhood and the Baby-Selling Laws
-Avi KATZ
Technological breakthroughs in science and medicine have reintroduced the ancient practice
of surrogate motherhood into the modern age. A surrogate mother' is a woman who agrees to
be artificially inseminated 5 with the sperm of a man whose own wife is incapable of
conceiving or carrying a child to term. In the typical case, the surrogate mother conceives,
carries the child for nine months, gives birth, and then releases her parental rights, giving up
the child to the infertile couple for adoption. The agreement between the surrogate mother
and the natural father or couple is embodied in a contract, which usually provides for the
surrogate mother to receive all medical and living expenses associated with the bearing of the
child in addition to a substantial fee. Moreover, the parents can choose the surrogate,
selecting one with particular features or characteristics they desire. This article, however,
focuses on the relationship between surrogate motherhood and state adoption laws,
specifically those laws that prohibit payment in connection with adoption.

Assessment of termination of pregnancy on grounds of the sex of the foetus

The Serious Crime Act 2015 contains a requirement that the Secretary of State (SoS) must
arrange for the publication of an assessment “of the evidence of termination of pregnancy on
the grounds of the sex of the foetus in England, Wales and Scotland”. The issue of gender
abortions is of worldwide concern. The general consensus is that a male to female birth ratio
of around 105 (that is 105 male births per 100 female) is normal However, a number of
factors can influence the sex of the child including maternal and paternal age, coital rates,
number of children and sex of previous children. Under the Abortion Act, it is lawful to abort
a foetus where two registered medical practitioners (RMPs) (i.e. doctors)) are of the opinion,
formed in good faith, “that there is a substantial risk that if the child were born it would suffer
from such physical or mental abnormalities as to be seriously handicapped”. There are some
serious conditions which are known to be gender-related.

9
Premenstrual Syndrome AsA Criminal Defense: The Need For A Medico-Legal
Understanding
Premenstrual Syndrome (PMS), while still controversial within the medical community, has
now transgressed the legal profession. Women who are affected by the disorder are becoming
more assertive in demanding the same medical and legal rights accorded those who suffer
from similar diseases and defects PMS, one of the most common disorders affecting the
female population, generally is referred to as a "disease of progesterone deficiency. Not only
does a need exist for greater education and awareness of PMS itself, but its appreciation must
extend to the relationship between PMS and crime. appreciation must extend to the
relationship between PMS and crime. If PMS is truly a factor affecting criminal behaviour in
women,3 the legal profession must form a better understanding of the meaning of PMS to
ensure that its use as a criminal defence will not be abused. The recognition of PMS by the
legal profession may trigger unrest within the feminist community because the use of a
female-oriented disorder as a criminal defence may serve to disqualify women as a class.

10
Termination of pregnancy- validity of offence

INTRODUCTION
A termination (or abortion) of a pregnancy is the medical process of ending a pregnancy so
it does not result in the birth of a baby. Depending on how many weeks you have been
pregnant, the pregnancy is ended either by taking medication or by having a surgical
procedure. So the abortion is a procedure to end the pregnancy. Abortions are performed up
to 24th week of pregnancy. They can be done medically (with tablets) or surgically (a
procedure in an operating room). Most women are well afterwards. There is no evidence that
having an abortion reduces your chances of having a family when the time is right. A similar
procedure after the fetus could potentially survive outside the womb is known as a late
termination of pregnancy6
Grounds for termination of pregnancy:
According the sec 3 medical rumination of pregnancy act,When pregnancies may be
terminated by registered medical practitioner
(i) Notwithstanding anything contained in the Indian Penal Code (45 of 1860) a registered
medical practitioner shall not be guilty of any offence under that Code or under any other law
for the time being in force, if any pregnancy is terminated by him in accordance with the
provisions of this Act.
(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:7
1: The continuance of the pregnancy would involve a risk to the life of the pregnant women
;or
2: A risk of grave injury to the her physical or mental health ;or
3: If the pregnancy is caused by rape; or
4: There exist a substantial risk that, if the child were born it would suffer from some physical
or mental abnormalities so as to be seriously handicapped; or
5: Failure of any device or method used by the married couple for the purpose of limiting the
number of children; or

6
Grimes, DA; Stuart, G (2010). "Abortion jabberwocky: the need for better terminology". Contraception. 81 (2):
93–6. doi:10.1016/j.contraception.2009.09.005. PMID 20103443.
7
Medical termination of pregnancy act

11
6; Risk to the health of the pregnant woman by the reason of her actual or reasonably
foreseeable environment
Earlier the right to abortion was not permitted and it was strongly opposed by the society.
The termination of pregnancy was termed to be a murder of the fetus. But due to the change
in time and technology, nowadays this right has been legally sanctioned by most of the
nations after the famous decision of Roe Vs Wade by the US Supreme Court. But the
oppositions are still present and people do believe that it should be legally prohibited.8
Termination of pregnancy is ground for divorce where the Supreme Court of India has
ruled that abortion by a woman without her husband's knowledge and consent will amount to
mental cruelty and hence sufficient ground for divorce as it is valid ground for divorce under
Hindu marriage act. If the wife has an abortion without the consent of the husband shall be
considered as valid ground for divorce

In a case the Supreme was uphold the plea of SudhirKapur that he was entitled to seek
divorce under the Hindu Marriages Act, as his wife SumanKapur had undergone three
abortions without his consent. Sudhir claimed that his wife resorted to the abortions as she
was more interested in pursuing her career in the US rather than bringing up a family He
further claimed that Suman constantly insulted his parents and other family members.
A matrimonial court granted divorce to Sudhir on the basis that the charges had been
established. The woman moved the Delhi High Court which confirmed the findings of the
matrimonial court, following which Suman filed an appeal. The apex court after perusing the
records and citing a number of judicial rulings said that the actions of Suman amounted to
mental cruelty and her husband was entitled to a decree of divorce.
Mental cruelty is a state of mind. The conduct must be much more than jealousy, selfishness,
possessiveness, which caused unhappiness and dissatisfaction and emotional upset but might
not be a reason for grant of divorce on the ground of mental cruelty.
The Bench said that to establish legal cruelty, it is not necessary that physical violence should
be used. Continuous cessation of marital intercourse or total indifference on the part of the
husband towards marital obligations would lead to legal cruelty. In such cases, the cruelty
will be established if the conduct itself is proved or admitted. The absence of intention should
not make any difference in the case, if by ordinary sense in human affairs the act complained
of could otherwise be regarded as cruelty. Mensrea (criminal intent) is not a necessary

8
https://2womenshealth.com/Abortion-Pregnancy-Termination.htm

12
element in cruelty. The relief to the party cannot be denied on the ground that there has been
no deliberate or willful ill treatment The judges fully concurred with the findings of the lower
courts that three abortions without the knowledge and consent of the husband was a valid
ground for divorce. However, since Sudhir married another woman during the pendency of
the appeal, the apex court directed him to pay a compensation of Rs 5 lakh to Suman.
TERMINATION OF PERGNANCY BEFORE THE MARRIAGE SHALL BE GROUND
ANNULMENT OF MARRIAGE
Termination of pregnancy before the marriage is a ground for annulment of marriage and
where the wife, at the time of marriage was pregnant by some other person, the court is to be
satisfied that you were ignorant of this fact at the time of marriage. Furthermore, petition on
this ground has to be filed within one year from the date of the marriage. Also remember, that
in case of a petition on this ground, marital intercourse with the consent of the petitioner
should not have taken place ever since the discovery of the fact that the other party was
pregnant by some other person.

TERMINATION OF PREGNANCY IS NOT AN OFFENCE WHERE IT SAVES THE

LIFE OF THE MOTHER

Abortion should not be legal except in cases where the life of the mother is threatened by the
pregnancy. There is one massive misconception about the “life of the mother” exception: the
belief that abortion is sometimes necessary to save the life of the mother. The abortion
procedure is not ever necessary to save the life of a mother. There are, however, maternal
health risks that require a treatment that cause the unfortunate, indirect, and unintentional
death of an unborn child. For instance, in life-threatening ectopic pregnancies that require
removal of a Fallopian tube, the pregnancy (including the unborn child) will be removed
along with the Fallopian tube. The intention in this procedure is first and foremost to save the
life of the mother, and in order to do so, a physician must perform a procedure that indirectly
causes the death of her unborn child.

This is not an abortion. Furthermore, a true abortion is a in which the direct intention is to end
the life of a human being is not a treatment for any type of maternal health risk. Abortions
never save mothers, but procedures which by their nature may indirectly lead to a child’s
death sometimes save the life of the mother.

13
TERMINATION OF PREGNANCY IS AN OFFENCE IF IT IS A SEX SELECTIVE
ABORTION

Sonography and amniocentesis allow parents to determine sex before childbirth. The
development of this technology has led to sex-selective abortion, or the termination of a
foetus based on sex. The selective termination of a female foetus is most common. 9 Sex-
selective abortion is the practice of terminating a pregnancy based upon the predicted sex of
the infant. The selective abortion of female foetuses is most common in areas where cultural
norms value male children over female children10

Sex-selective abortion affects the human sex ratio the relative number of males to females in
a given age group, with China and India, the two most populous countries of the world,
having unbalanced gender ratios. Studies and reports focusing on sex-selective abortion are
predominantly statistical; they assume that birth sex ratio—the overall ratio of boys and girls
at birth for a regional population, is an indicator of sex-selective abortion.

The reason for intensifying sex-selection abortion in China and India can be seen through
history and cultural background. Generally, before the information era male babies were
preferred because they provided manual labour and continuation of the family lineage.
Labour is still important in developing nations as China and India, but when it comes to
family lineage, it is of great importance.

The selective abortion of female foetuses is most common in areas where cultural norms
value male children over female children for a variety of social and economic reasons. A son
is often preferred as an "asset" since he can earn and support the family; a daughter is a
"liability" since she will be married off to another family, and so will not contribute
financially to her parents.11 Sex selective female abortion is a continuation, in a different
form, of a practice of female infanticide or withholding of postnatal health care for girls in
certain households. Furthermore, in some cultures sons are expected to take care of their
parents in their old age.These factors are complicated by the effect of diseases on child sex
ratio, where communicable and no communicable diseases affect males and females

9
Article on sex-selective abortion
10
Goodkind, Daniel (1999). "Should Prenatal Sex Selection be Restricted?: Ethical Questions and Their
Implications for Research and Policy".
11
Das Gupta, Monica, "Explaining Asia's Missing Women": A New Look at the Data", 2005

14
differently.12 In parts of India and Pakistan, there are social norms such as purdah ,which
stipulate that female seclusion and confinement to the home is necessary. Such practices are
prevalent among some Muslim and Hindu communities in South Asia. When females interact
with men, or are believed to do so, the "family honour” is tarnished

Kirti Singh states that dowry is widely considered to be both a cause and a consequence of
son preference, and this may lead to girls being unwanted, sex selective abortion, female
infanticide or abuse of female children.13

TERMINATION OF PREGANACY WITH THE CONSENT OF THE PERSON

The termination of pregnancy without the consent of the person shall be considered as
offence. The element of consent is necessary which was held in the case Provat Kumar
Chatterjee vs Smt. Gita Chatterjee14 where without the consent of the wife the termination of
pregnancy was held on fraud basis which led the women mentally weak, here he held liable.

TERMINATION OF PREGNANCY TO A MINOR GIRL

Explanation 1 to Section 3 and submitted that 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. which was
held in the case(Minor)PriyankaGirishkumarvs Principal 15 However, in the facts of the
present case, minor, Priyanka, and her father expressed their consent for termination of
pregnancy coupled with the fact that the minor is the victim of the brutal act of the accused of
offence punishable under Sections 376 and 506(2) of the Indian Penal Code

12
Kumm, J.; Laland, K. N.; Feldman, M. W. (December 1994). "Gene-culture coevolution and sex ratios: the
effects of infanticide, sex-selective abortion, sex selection, and sex-biased parental investment on the evolution
of sex ratios". Theoretical Population Biology. 46
13
https://web.archive.org/web/20140313094849/http://india.unfpa.org/drive/LawsandSonPreferen
ceinIndia.pdf
14
98 CWN 1133, II (1994) DMC 248

15
2013 scc 171

15
TERMINATION OF PREGNANCY UNDER GOOD FAITH

The Act does not permit termination of pregnancy after 20 weeks. The medical opinion
must off course 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.

where any pregnancy occurs as a result of failure of any device or method used by any
married woman or her husband for purpose of limiting the number of children they anguish
caused by such unwanted pregnancy may be presumed to constitute a grave injury to the
mental health of the pregnant woman16in which was in the case Dr.Saraswativs The State Of
Maharashtra17 Smt. VijaymalaPatekar, a married woman, was brought to this hospital by her
husband. She was having four daughters and she was again pregnant. This couple wanted to
determine sex of the foetus His sonography machine was seized. He was also prevented from
using such diagnostic techniques. In spite of these circumstances, Dr.Kolhe was using one
sonography machine and in the present case, he determined the sex of foetus of Vijaymala. It
was female foetus and it's age was around 18 to 20 weeks. When Smt. Vijaymala was
brought back to Mundhe Hospital after sex determination, medicines were given and
operation was performed for abortion on 18.5.2011. The foetus was destroyed by burning it
in the field of Dr. Shri. Mundhe by his employees. Smt. Vijaymala died due to this operation
on 18.5.2011 itself. Dr. Shri. Mundhe informed to Parli City Police that Vijaymala had come
to the hospital as she had bleeding (PV) and she died in his hospital. Dr.Mundhe informed to
police that the pieces of foetus were thrown by him in drainage system. He held liable.

Termination of pregnancy without the knowledge of the person, which was held in the case,
State vsUdayakumarAndOrs. 18 Where At the instigation of husband and his mother had
violently beaten , the victim Sudha and she was suffering from headache. For treatment of her
headache, she was taken to Chidambaram to the Hospital of Dr.Thiripurasundari. In the
hospital, she was injected and put on sedatives and the pregnancy was aborted. According to

16
Explantion 2 of the mtp act
17
AIR 2013 1356
18
2004 CriLJ 2758
16
the abortion was forcibly done by doctor at the instance of husband and his mother without
her knowledge. He was held liable

CASE ANLYSIS

CASE NAME: STATE OF HARYANA AND OTHER VS SMT.SANTRA

BENCH:S.S.Ahmad, D.P.Wadhwa

TOPIC: mechanical failure

PROVISION OF LAW: medical termination of preganacy act

BRIEF FACTS OF THE CASE: where the respondent, a poor labourer woman, who
already had many children and had opted for sterilisation, developed pregnancy, Smt. Santra
was assured that full, complete and successful sterilisation operation had been performed
upon her and she would not conceive a child in future. But despite the operation, she
conceived. When she contacted the Chief Medical Officer and other Doctors of the General
Hospital, Gurgaon, she was informed that she was not pregnant. Two months later when the
pregnancy became apparent, she again approached those Doctors who then told her that her
sterilisation operation was not successful. Dr.Sushil Kumar Goyal, who was examined as
DW-2, stated that the operation related only to the right Fallopian Tube and the left Fallopian
Tube was not touched, which indicates that `complete sterlisation' operation was not done.
She requested for an abortion, but was advised not to go in for abortion as the same would be
dangerous to her life. She ultimtely gave birth to a female child. Smt. Santra already had
seven children and the birth of a new child put her to unnecessary burden of rearing up the
child as also all the expenses involved in the maintenance of that child, including the
expenses towards her clothes and education.

ISSUE RAISED :Who has to bear the expenses in bringing up the "unwanted child", is the
question which is to be decided by us in this case

JUDGEMENT: The courts were of the opinion that this exhibited negligence on the part of
the Medical Officer who performed the operation. Smt. Santra, in spite of the unsuccessful
operation, was informed that sterlisation operation was successful and that she would not
conceive any child in future. The plea of estoppel raised by the defendants was also rejected.

17
GROUNDS FOR APPEAL:

CASES REFERRED:1) In Bolam vs. Friern Hospital Management Committee (1957)

2) and A.S. Mittal vs. State of U.P. AIR 1989 SC 1570,

JUDGEMENT AND ORDER: . Smt. Santra, as already stated above, was a poor lady who
already had seven children. She was already under considerable monetary burden. The
unwanted child (girl) born to her has created additional burden for her on account of the
negligence of the doctor who performed sterilisation operation upon her and, therefore, she is
clearly entitled to claim full damages from the State Govt. to enable her to bring up the child
at least till she attains puberty

CASE NAME:Rethinam @ Rajarethinamvs State

BENCH

TOPIC: rape

PROVISION OF LAW: Sections 376 (2)(b) and 506 (ii) IPC.

BRIEF FACTS OF THE CASE:Vijila, Ambika, Gangadharan, Ramani and Kanaga were
studying in KuravapulamSeethalakshmi Middle School at the time of occurrence and the
victim girl was studying in 7th Standard. The appellant/accused was working as a Teacher.
On 26.12.2001, for making arrangement to conduct half-yearly examination, victim girl was
cleaning the classroom along with other inmates. The victim girl was brooming VIII B, the
accused came inside and locked the door of the classroom. Then, the accused trampled her
slipper and pulled her down, which resulted to fell down, at that time, the accused committed
rape on her. He also made a criminal intimidation at knife point that if she intimated the
matter to anybody, he would throw her into the well and he would set fire on her house,
which would cause death of entire family. Thereafter, she attended examination. On
02.01.2002, at 8.30 a.m., again he committed rape on her in the same classroom. When the
mother deposed she had missed her menstrual period for the past two months. When she
questioned the same, she revealed the fact that she was subjected to rape on 26.12.2001 and
02.01.2002 by the accused. Immediately, they went to the hospital on 26.03.2002

18
Dr.Indira,treated her and accordingly, came to the conclusion that she was pregnant. Then, at
the request of mother ,doctor was medically terminated the pregnancy of her on 27.03.2002.

ISSUE RAISED :wheather the termination of pregnancy can be made for rape victim ?

JUDGEMENT:. The appellant/accused has been sent for chemical examination but the
result is not yet received. Hence, there is no evidence on the side of the prosecution to prove
that the appellant only responsible for the pregnancy of victim admittedly, as per the evidence
the appellant is capable for performing sexual intercourse. In such circumstances, it is
immaterial that as to whether the appellant is responsible for the pregnancy of victim So non
filing of the semen report is not fatal to the case of the prosecution

Considering the same along with the evidence of victim of the view that the evidence of
victim girl is natural, cogent and trustworthy and hence, it is reliable. Hence, the trial Court
concluded that the appellant is guilty for the offence under Sections 376(i) (2 counts) and
506(ii) I.P.C. In respect of quantum of sentence imposed by the trial Court is concerned, it
does not warrant any interference. Hence, the criminal appeal is dismissed as devoid of
merits.

CASES REFERRED:SudhansuSekharSahoo v. State of OrissaAIR 2003 SC 2136,

Bhupinder Sharma v. State of Himachal Pradesh AIR 2003 SC 4684,

CASE NAME :Shantaram Krishna Karkhandis And ... vs State Of Maharashtra And Anr

CITATION: 2007 CriLJ 149

BENCH : V Kanade
TOPIC: sexual intercourse

PROVISION OF LAW: under sec 313 read with 34 of indian penal code

BRIEF FACTS OF THE CASE: the prosecutrixBarkjbai had worked as maid servant for
three years with the applicants. It is alleged that the applicant No. 1 committed sexual
intercourse forcibly by threatening her. Thereafter, Barklbai became pregnant and she was
taken to Dr.Saloman on 18-9-1986 and, thereafter, she was taken to Dr.Talegaonkar. It is
alleged that Dr.Talegaonkar performed abortion without her consent on account of false

19
representation made by the applicants. The brother of the prosecutrix lodged a complaint at
Narpoli Police Station and it was registered.

ISSUE RAISED : Whether the consent of a person is essential element for termination of
pregnancy?

JUDGEMENT: The accused was convicted for commission of the offence under Section
313 read with Section 34 of the Indian Penal Code and sentenced them to suffer rigorous
imprisonment for three years and to pay fine of Rs. 3.000/- and, in default, to suffer further
rigorous imprisonment for three months.

CASES REFERRED: No cases referred

GROUNDS FOR APPEAL: The appeal was dismissed

JUDGEMENT AND ORDER:

20
 Literature review

Here in this article the author is discussing about the concept of criminal abortion and
he is making the crime as a chief crime like that of major crimes happening in and around all
countries where it was less in primitive races. The pointed out that the chief founding factor
for this crime is growing of population and also he is stating here is that since the people are
not using their conceptive methods it leads to practice such crime to avoid maintaining of
large families. He pointed out that Doctor as an Expert Witness where Carroll A. Nye, in
Minnesota Medicine, discusses this subject. 19

According to the author Women are murdered all over the world. But in India a most
brutal form of killing females takes place regularly even before they have the opportunity to
be born. He also discuss about the female feticide which is a selective abortion of female
fetuses along with the help of statistics in India. He criticizing both the social as well as
technological aspects that the women not only faces inequality but also they are even denied
the right to born. He also pointed out that the laws and penalties which are for the purpose of
this offence have not stemmed that the tide of this abhorrent practice.20

Here in this article the author finds the objective of MTP act 1971 which is for the
safe and legal abortions also discuss the main activity of FASDSP (Forum Against Sex
Determination and Sex Pre-Selection) is to sustained campaign for legislation against PNSD.
He criticizes that the Influential School of thought which justifies the practice of selective
abortion until the desired son was born. He pointed out the loopholes which are present in
Maharashtra purports to curtail pre natal sex determination about genetic laboratories,
overruling highest monitoring bodies, exemption of public. He also discuss about the
importance of FASDSP attempts. He pointed out that that the earlier provisions covering
abortion were to be found in sections 312, 315, and 316 of the Indian Penal Code and these

19Frank B. Wynne, Abortion, 39 Medico-Legal J. 21 (1922), Thu Jan 25 09:51:39 2018.

20Nehaluddin Ahmad, Female Feticide in India, 26 Issues L. & Med. 13 (2010)

21
have not been repealed. Thus an abortion which is not permitted by the MTP Act amounts to
an offence under the IPC, also discuss the termination period here in this article.21

21NiveditaMenon, Abortion and the Law: Questions for Feminism, 6 Can. J. Women & L. 103 (1993)

22
 INDIAN LAW ON ABORTION

In India, Abortion is strictly condemned in Vedic, Upanishads, The later Puranic

(Old) and Smrithi Literature. The Supreme Court widely interpreted that right to abortion can
also be a right which is guaranteed under Article 21 of the constitution of India. In India
earlier several people practiced abortion. Since it was made illegal, it was practicing still in a
clandestine or secret manner. Since it was practicing in a clandestine manner the government
passed Medical Termination of Pregnancy Act 1971 with reasonable restrictions safeguarding
the health of women or mother. Since law is liberal for effecting such termination, the act,
does not lay down any provision on husband consent in any situation.22

The Medical Termination of Pregnancy Bill Was approved by the Both houses of the
parliament and received an ascent of The President of India on 10th of August, 1971 and it
came on to the statute Book as ‘‘The MTP Act, 1971’’.23 This Statute guarantees the Right of
women in India to terminate an unintended pregnancy by a registered medical practitioner in
a hospital established or maintained by the Government or a place being approved for the
purpose of this Act by the Government. Not all pregnancies could be terminated. The
objective of the Act is to terminate certain pregnancies by registered medical practitioners.

Here the word Registered medical practitioner as per the act, firstly has to fulfill a
medical qualification recognized under Section 2(h) of Indian Medical Council Act, 1956.
Secondly, his name has been enrolled in the State Medical Rights. Thirdly, he must have
experience of gynecology or obstetrics. The pregnancy is terminated within twelve weeks on
the opinion of one registered medical practitioner. However, if the pregnancy crossed twelve
weeks and not twenty weeks, in that case, the opinion of two medical practitioners is
important.

22Dr.MandlaDogra v. A.K.malhotra and others, AIR 2012 CC 1401; 2012(3) KLT (SN) 124 (P&H).
23Received the assent of the President on Aug 10 1971, and published in the Gazette of India,
Extra., Part II, Section 1, dated 10th Aug, 1971, pp.237-240.

23
 Before this Act, Section 312, Section 313, Section 314, Section 315, Section 316, of
the Indian Penal Code 1860 prevailed, which was in accordance with the British Law. Where
Sec 312, is an offence of termination Causing miscarriage with the consent of the victim on
the other hand Sec 313 deals with Miscarriage without consent of such victim. Sec 314 is an
offence for Death caused by act done with the intent to cause miscarriage. Sec 315, deals with
the act done with intent to prevent child being born alive or to cause it to die after death. Sec
316 deals with causing death of quick unborn child by act amounting to culpable homicide.
The provision provides induced abortion as illegal unless the abortion was done to save the
women in good faith. Although the British law had changed the law in 1967 in Great Britain,
India was still carrying it due to which the toll of women’s death increased.

It is applicable to all parts of India except the state of Jammu and Kashmir. Abortion
may be classified into various categories depending upon the nature and circumstances, It
may be either, (i) natural; (ii) accidental; (iii) spontaneous; (iv) Artificial or induced abortion.
Abortions falling under the first three categories are not punishable, while induced abortion is
criminal unless exempted under the law.

Sec 3 Of the MTP Act 1971 talks about when pregnancy can be terminated under
three sub clauses. As Sec 3 (1) says that, as a health measure when there is danger to the life
or risk to physical health or mental health or the woman. Sec 3 (2) says that, On
Humanitarian ground (s) Such as when pregnancy arises from a sex crime like rape or sexual
intercourse with a lunatic woman, etc. and also there is other ground where Sec 3 (3) deals
that is Eugenic ground (s) where there is a substantial risk that the child, if born would suffer
from deformities and diseases.
Section 4 deals with the place of termination which provides that the place of
termination either it is a hospital maintained by the Government or at any other place
sanctioned by the Government. If the registered medical practitioner is of the view that an
immediate action is needed to save the life of women then the place is not a relevant issue he
can terminate immediately.
Here main Issue arising by the said act is whether a woman can request a medical
practitioner to perform an abortion on the ground that she does not want a child at that time?
A Women quick with child simply means a particular stage of pregnancy at which
quickening takes place. It is a perception of the women of the movement of fetus. Section 312
can even apply to pregnant women herself who causes her own miscarriage. Good faith by

24
itself is not enough but it is a good faith for saving the life of both child and mother.24 The
doctor is held liable for his act if the women who dies the next day with the side effects of
medicine since the it is the duty of the doctor which he was presumed to know the possible
side effects of the said medicine.25 Where the deceased, An unmarried girl was pregnant and
she died due to perforation of uterus following abortion. It is clear that the accused miscarry
to wipe out evidence of deceased being pregnant so he was held liable under Sections 312,
315, 316, and 201 of IPC 1860.26Where the accused women kicked a pregnant woman in her
abdomen resulting in miscarriage, her conviction under Sec 313 of IPC is sustained27.
When evidence showing that on proper detecting that complainant had conceived,
accused husband administered her, a pill with proper knowledge and intention that particular
pill would cause miscarriage without the consent of the women then the conviction under Sec
313 of IPC is held proper.28 The only difference between Section 313 and Section 314 of IPC
are Ingredients for both these offences are contradictive and cannot go together. Where an
unmarried girl of 18 years who is praying for issue of a direction to terminate the pregnancy
of the child in her womb, on the ground that bearing the unwanted pregnancy of the child of
three months made her to become mentally ill and the continuance of pregnancy has caused
great anguish in her mind so since the pregnancy was caused by rape. The Court granted the
permission to terminate the pregnancy. 29 The accused had committed rape on 12 years and
made her pregnant. The allegations are that two other co-accuseds took this girl, and they
terminated her pregnancy. So the charge on them is firstly causing miscarriage without
consent of girl. The Court held all the three accused guilty of termination of pregnancy which
was not consented by the mother or the girl.30

RECOMMENDATIONS:

In India just enactment of new laws, rules and statutes, is not at all a solution to the
problems with respect to abortion that have been pre-existing for centuries. The execution
part of it has to also be taken into consideration. If rights of an unborn are taken into

24Meeru Bhatia Prasad v. State, 2002 Cr LJ 1674 (Del).

25Akhil Kumar v. State of M.P., 1992 Cr.LJ 2029 (MP). Mohammed Sharif v. State of Orissa, 1996 Cr.
LJ 2826 (Ori) Termination under medical advice death not caused, the accused not liable.
26 State of Maharashtra v. Flora SantunoKutino and Ors., 2007 CrLJ 2233 (Bom).

27Tulsidevi v. State of UP., 1996 Cr LJ 940 (All).

28PranadKantiSen v. State of West Bengal., 2010 Cr LJ 162 (Cal).

29D. Rajeswarivs State Of Tamil Nadu And Others., 1996 CriLJ 3795.

30Dr.NishaMalviya and Anr. Vs. State of M.P., 2000 CriLJ 671

25
consideration, then also the bar of 20 weeks set by the government which is subjected to
judicial discretion which ultimately varies in different cases and in the lights of the recent
judgment of Supreme Court.

Case title: Public Prosecutor v. Dr.NadasonKanagalingam,

Citation: (Malayan Law Journal, No. 2, 1985, pp. 122-124.)

Decided On: (9th June 1984).

Topic: Medical termination of Pregnancy.

Chapter: Indian Law on Abortion but this a Malaysian case

Briefs Facts of the case:

Here in this case the defendant, an obstetrician and gynecologist. The plaintiff who is
a pregnant woman had consulted the defendant for the purpose of medical treatment. He was
examined some medical tests and later got to know that she is suffering with some disease
which may leads to pulmonary embolism in order to avoid it under good faith the defendant
aborted her because the woman had enlarged varicose veins.

Issues raised:

1. Whether the defendant was an accused of voluntarily causing a woman to

miscarriage?

Judgment:

The defendant, an obstetrician and gynecologist, was accused of voluntarily causing a

woman to miscarry, such miscarriage performed without good faith and an intention to save
the woman's life. The Court upheld the conviction of the defendant, rejecting his argument,
supported by an expert witness, that he had performed the abortion in order to avoid the
possibility of pulmonary embolism which might result because the woman had enlarged

26
varicose veins. It held that the argument was not reasonable under the current law and that
procuring an abortion was a serious matter to be done only as a last resort to save the life of a
woman or to save her from becoming a mental 'wreck".

Comment:

The defendant is appealed to the superior court for his convicted to be quashed. He
contended that in order to save the life of the victim he terminated her if he won’t terminate
her then he will subject to mental Wreck and risk to her health also leads to her death. The
Malaysian court while he appealed based on the medical expert witness quashed his
conviction.
Whereas when we see this case in Indian perspective there is a case for which the
petitioner who was a registered medical practitioner had to establish that his action was done
in good faith ( includes omission as well ) so that he can get exemption from any criminal
liability under section 3 of the MTP Act, 1971.

Case title and Citation: Narain Singh Vs State of HP &Ors Cr. Revision No. 195 of
2017.
Decided On: 19-12-2017 ,by the HIGH COURT OF HP AT SHIMLA.
Topic: Medical termination of Pregnancy Act 1971.
Chapter: Indian Law on Abortion.

Briefs Facts of the case: Ms.KusumLata, A pregnant women who is in illicit relationship
with surendersingh since 2013 on the pretext that he would marry her in near future. As per
the Complainant given by her it was stated that she kept meeting with him on this period and
they also developed physical relations. In Oct, 2014 she became pregnant and as such insisted
him to marry her but he refuse to marry her, took her to kullu and allegedly got the child
aborted. Also he harassed the her, compelled to leave the company of him. On 26.3.2015, she
was taken to Life Line Care Hospital, Kullu and got her aborted.

Issues raised: Whether the petitioner was a registered medical practitioner?

Whether the consent of the victim or pregnant women is taken?

Cases referred:PeddiRavindraBabu and Anr. MANU/SC/0450/2009

27
 State of Haryana and others vs. Ch. BhajanLal and others
MANU/SC/0115/1992

Judgment and Order: Being satisfied that prima-facie case exists against the surrender
singh for having committed offence punishable under Sections 376, 506 and under Section
312 read with Section 34 of IPC. whereas present bail petitioner Dr.Narain Singh, came to be
charged for having committed offence punishable under Section 312 read with Section 34 of
IPC. But there was an instant revision petition filed under Section 397 read with Section 401
of Cr.P.C, praying therein for his discharge after setting aside the impugned order. The
council on behalf argued that the evidence which is produced by the Investigation Agency is
correct while referring to the report submitted by the police under Section 173 Cr.P.C on the
basis that proceeded to frame charge against the present petitioner, strenuously tells that
nothing has come in the investigation against the petitioner, rather medical evidence adduced
on record by the Investigating Agency itself suggests that no abortion was actually got done
by the Surender Singh. On the medical evidence adduced on record, contended that
complainant never became pregnant and as such, there was no question of getting the
pregnancy terminated. Learned Senior Counsel while referring to the provisions as contained
under Section 312 IPC, submitted that in order to frame a charge under Section 312 of IPC, it
is absolutely imperative to establish on record by the prosecution that prosecutrix in question
was "with child" or "quick with child" but in the instant case, there is no material to establish
that prosecutrix was pregnant. Consequently, in view of the detailed discussion made herein
above as well as law laid down by the Hon'ble Apex Court, present revision petition is
allowed and the impugned order dated 20.6.2017 is quashed and set-aside petitioner is
discharged of charges farmed against him.

Special observation: Here in this case victim was gone under examination with alleged
history of abortion. The doctor have to examine a living subject or sometimes a dead body
may be sent for postmortem examination for alleged abortion. The findings are similar to
those found in the recent delivery and will depend upon the period of gestation. Here Brief
history such as history, date, time, place of abortion, method of termination will subject to
examine, Clothing must be examined, especially the under-garments of bloodstains, stains
from abortifacients preserved and sent to CFSL Clinical examination,

Comment: The Petitioner in this case successfully proved that the women with whom he was
in illicit relationship was not pregnant and the victim failed to prove beyond reasonable doubt

28
that she was aborted by the accused and she was quick with the child. The contentions by the
Council on the behalf of the Petitioner was successfully proved with the evidence which is
produced by the medical investigation agency.

Case title and Citation: BinodBihariNaik VS State of Orissa, CRLMC No. 2264 of
2004,
Decided On: 02.01.2018,by the HIGH COURT OF ORISSA AT CUTTACK.
Topic: Medical termination of Pregnancy Act 1971.
Chapter: Indian Law on Abortion

Briefs Facts of the case: The prosecution case, as per the first information report lodged
by the victim on 16.08.2002 before the officer in charge, Kuchinda police station is that she
was aged about 20 years and the Co-accused LochanPujhari kept physical relationship with
her on the assurance of marriage for which she became pregnant. It is further stated that she
was taken to a doctor by the co-accused LochanPujhari, his elder brother Gobinda, his mother
and brother-in-law as per their previous plan giving false impression to her for formal check
up of the child in the womb. The Co-accused persons talked with the doctor and left the
victim with the doctor who administered some medicines to her for which she became
senseless and after one hour when she got back her senses, she found that her six months
pregnancy had been terminated. She was told by the co-accused persons not to disclose about
the same before anybody and threatened with dire consequence.

Issues raised: Whether the doctor is a registered medical practitioner?

Whether the practitioner had taken consent for termination by the
victim?

Judgment: The court held that since Prima facie ingredients of the offence under Sec 313
of the Indian Penal Code is made out so far as the petitioner is concerned.

29
Additional Points: Sec 3 of the MTP Act 1971 clearly says that the grounds for
termination of pregnancy which is terminated by a registered medical practitioner when it
does not exceed 12 weeks if it exceeds 12 weeks but does not exceed 20 weeks which is
terminated by not less than 2 registered medical practitioners which formed in good faith that
when the continuation of pregnancy would involve greater risk to the pregnant women, or
there is a substantial risk to the child born, it would suffer from such physical or mental
abnormalities as to be seriously handicapped. Sec 4 of the MTP ACT 1971 which talks about
(a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who,
having attained the age of eighteen years, is a mentally ill person, shall be terminated except
with the consent in writing of her guardian. (b) Save as otherwise provided in clause (a), no
pregnancy shall be terminated except with the consent of the pregnant woman."

Cases referred: Dr Jacob George vs. State of Kerala MANU/SC/0684/1994

Judgment and Order: It is prima facie clear from the available materials on record
that neither the procedure as laid down under sections 3, 4 and 5 of the MTP Act have been
followed nor the consent of the victim has been taken for termination of her six months
pregnancy. Therefore, when there is no material that the miscarriage was done in good faith
for the purpose of saving the life of the victim and the victim's consent for such miscarriage
has not been obtained but it was done in a clandestine manner making the victim senseless by
administering some medicine. Hence the petition is dismissed.

Special observation: In view of sub-section (2) of section 3 of the MTP Act, there can be no
termination of pregnancy if the length of the pregnancy had exceeded twenty weeks. The
only exception is found in section 5 of the MTP Act under which the pregnancy can be
terminated immediately to save the life of the pregnant woman at any stage of pregnancy, if
the opinion of the registered medical practitioner is formed in good faith. Undoubtedly, the
opinion in that regard has to be formed by a registered medical practitioner and such opinion
should be in good faith.

Comment:

30
 LITERATURE REVIEW

1. Is Abortion is human right by Susan Milligan

"It's a sad statement that human rights have not become extremely politicized," with both
political parties in the U.S. working to advance human rights around the world. Instead,
"women's rights have been politicized. That's an indictment of our political climate here," she
says.

The British parliament passed a law in 1967, The Abortion Act, which made the
procedure legal up to 28 weeks' gestation. But the law did not extend to Northern Ireland,
even though it is part of the United Kingdom. Until the decision this week by a Belfast judge,
abortion in Northern Ireland was legal only to save the life and health (including the mental
health) of the pregnant woman or girl. Those who perform illegal abortions face up to life in
prison, while the patients can be sentenced to 14 years behind bars.

2. The push to force pro-life centers to provide free advertising for the abortion industry
by Ken Connelly

For years now, Planned Parenthood has been encouraging and advising all-too-eager state
and local municipalities to pass laws compelling pregnancy resource centers—which exist to
protect unborn life and support needy women and their families—to advertise for
government-funded abortions. Yes, Planned Parenthood, the supposed paragon of free choice,
has waged a deliberate campaign to force pro-life organizations to violate their very reason
for being by requiring them to encourage and facilitate abortions. It turns out that, in the eyes
of Planned Parenthood, the one type of organization that is not free to choose is the one that
defends unborn life and works to make abortion unnecessary and obsolete.

3. Why a 'personally opposed but...' position on abortion is extremist by Joe Carter

If they agree it is, then their “personally opposed” position is even more intellectually
disreputable than the standard pro-abortion position. Those abortion advocates who favor the
legalization of abortion because they think destroying a fetus is a morally neutral act are

31
supporting injustice because they are ignorant or misguided. Their willful ignorance doesn’t
excuse them, of course, but it is at least consistent with their moral beliefs. The same cannot
be said for someone who recognizes that abortion kills a human being and yet believes that
the law should not be used to rectify that injustice.

Abortion in U.S law

Abortion in the United States has been, and remains, a controversial issue in United States
culture and politics. Various anti-abortion laws have been in force in each state since at least
1900.

Before the U.S. Supreme Court decision Roe v. Wade legalized abortion nationwide in 1973,
it was already legal in several states, but the decision imposed a uniform framework for state
legislation on the subject. It established a minimal period during which abortion must be legal
(with more or fewer restrictions throughout the pregnancy). That basic framework, modified
in Planned Parenthood v. Casey (1992), remains nominally in place, although the effective
availability of abortion varies significantly from state to state, as many counties have no
abortion providers31. In accordance with Planned Parenthood v. Casey, states cannot place
legal restrictions posing an undue burden for "the purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a nonviable fetus."32

In the United States, the main actors in the abortion debate are most often labeled either as
"pro-choice" or "pro-life", though shades of opinion exist, and most Americans are
considered to be somewhere in the middle. A Gallup.com survey of 1014 adults found that
opinions on abortion in the United States remain nearly evenly split, with 46% of participants
identifying as pro-life, and 47% identifying as pro-choice. The poll results also indicated that
Americans harbor a diverse and shifting set of opinions on the legal status of abortion in the

31
Alesha Doan (2007). Opposition and Intimidation: The Abortion Wars and Strategies of Political Harassment.
University of Michigan Press. p. 57. ISBN 9780472069750.
32
Casey, 505 U.S. at 877

32
United States. The survey polled that only 28% of respondents believed abortion should be
legal under unlimited circumstances, and 48% of respondents believed that abortion should
be legal under "most" or "only a few circumstances". Recent polling results also found that
only 34% of Americans were satisfied with abortion laws in the United States

Later judicial decisions

In the 1992 case of Planned Parenthood v. Casey, the Court abandoned Roe's strict trimester
framework. Roe had held that to be "strict scrutiny" - the traditional Supreme Court test for
impositions upon fundamental Constitutional rights, whereas Casey adopted the standard of
undue burden for evaluating state abortion restrictions, 33 but re-emphasized the right to
abortion as grounded in the general sense of liberty and privacy protected under the
constitution: "Constitutional protection of the woman's decision to terminate her pregnancy
derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State
shall 'deprive any person of life, liberty, or property, without due process of law.' The
controlling word in the cases before us is 'liberty'."

The Supreme Court continues to grapple with cases on the subject. On April 18, 2007, it
issued a ruling in the case of Gonzales v. Carhart, involving a federal law entitled the
Partial-Birth Abortion Ban Act of 2003 which President George W. Bush had signed into
law. The law banned intact dilation and extraction, which opponents of abortion rights
referred to as "partial-birth abortion", and stipulated that anyone breaking the law would get a
prison sentence up to 2.5 years. The United States Supreme Court upheld the 2003 ban by a
narrow majority of 5-4, marking the first time the Court has allowed a ban on any type of
abortion since 1973. The opinion, which came from justice Anthony Kennedy, was joined by
Justices Antonin Scalia, Clarence Thomas, and the two recent appointees, Samuel Alito and
Chief Justice John Roberts.

Current legal status

Federal legislation

33
Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992)

33
Since 1995, led by congressional Republicans, the U.S. House of Representatives and U.S.
Senate have moved several times to pass measures banning the procedure of intact dilation
and extraction, commonly known as partial birth abortion. Such measures passed twice by
wide margins, but President Bill Clinton vetoed those bills in April 1996 and October 1997
on the grounds that they did not include health exceptions. Congressional supporters of the
bill argue that a health exception would render the bill unenforceable, since the Doe v. Bolton
decision defined "health" in vague terms, justifying any motive for obtaining an abortion.
Congress was unsuccessful with subsequent attempts to override the vetoes.

The Born-Alive Infants Protection Act of 2002 ("BAIPA") was enacted August 5, 2002 by an
Act of Congress and signed into law by George W. Bush. It asserts the human rights of
infants born after a failed attempt to induce abortion. A "born-alive infant" is specified as a
"person, human being, child, individual". "Born alive" is defined as the complete expulsion of
an infant at any stage of development that has a heartbeat, pulsation of the umbilical cord,
breath, or voluntary muscle movement, no matter if the umbilical cord has been cut or if the
expulsion of the infant was natural, induced labor, cesarean section, or induced abortion.

State

Abortion is legal in all U.S. states, and every state has at least one abortion clinic.34 However,
various states have laws on abortion, some of which refer to it as feticide. On March 6, 2006,
South Dakota Governor Mike Rounds signed into law a pro-life statute that made performing
abortions a felony, which was subsequently repealed in a November 7, 2006, referendum. On
February 27, 2006, Mississippi's House Public Health Committee voted to approve a ban on
abortion, and that bill died after the House and Senate failed to agree on compromise
legislation.35 Several states have enacted "trigger laws" which "would take effect if Roe v.
Wade is overturned".36 North Dakota HB 1572 or the Personhood of Children Act, which
passed the North Dakota House of Representatives on February 18, 2009, but was later
defeated in the North Dakota Senate, aimed to allocate rights to "the pre-born, partially born",
and if passed, would likely have been used to challenge Roe v. Wade. 37 On February 15,

34
Myers, Megan. "S.D. rejects abortion ban", Archived 2013-09-24 at the Wayback Machine. Argus Leader,
(2006-11-08). Retrieved 2007-01-23.
35
"US state's 'personhood' law would hit birth control: opponents" 2009-02-18 AFP
36
Lewis, Bob. The Associated Press, "Va. House GOP muscles through abortion curbs", Feb 15, 2012.
37
Denver Post, "Amendment 48—Definition of a Person Election Results", 2008.

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2012, the Virginia House of Delegates passed House Bill 1 in a vote of 66-32, that effectively
outlaws all Virginia abortions by declaring that the rights of persons apply from the moment
sperm and egg unite. It also passed a second bill in a 63-36 vote that requires women to have
a transvaginal ultrasound before undergoing abortions.

Is abortion legal in the UK?

In England, Scotland and Wales abortion has been a legal right since the Abortion Act was
passed in 1967. The termination is only legal when performed by a licensed medical
professional (a doctor) and it must also be signed off by two other doctors. Doctors in the UK
have the right to refuse to sign off on your abortion if they have a moral objection to it, this
can, unfortunately, mean needing to see more than two doctors to get the two signatures.

Religious views impact the law in Northern Ireland where the abortion laws differ. However,
it is legal to travel from Northern Ireland to the UK to have a termination.

What criterion needs to be met if you want to proceed with an abortion?

In order to be eligible for a termination one (or more) of the following conditions must be
met:

 That the pregnancy has not exceeded 24 weeks

 The continuation of the pregnancy would involve risk to the life of the pregnant
woman, more so than a termination
 There is a substantial risk that if the child is born they would suffer mental or physical
abnormalities
 That the abortion is necessary to prevent permanent injury to the physical or mental
health of the pregnant woman

Is it illegal to terminate due to financial/social needs or based on gender?

The law does not state that a doctor has to take into account a woman’s environment when
deciding whether she can legally abort, but they may choose to do so.

For example, a woman’s economic and social situation may impact on a her health if she
continued with the pregnancy.

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There have previously been campaigns to make sex-selective abortions legal in the UK, but it
remains illegal.

What is a HSA documents and why are they needed?

The HSA documents are necessary in order to proceed with a termination; there are different
forms depending on whether the termination is an emergency or routine.

 HSA1 - the certificate of opinion (signed by two physicians) required by law under
Section 1 of the Abortion Act.
 HSA2 - Would need to be signed by a doctor within 24 hours of an emergency
abortion.

Both these forms will be kept on medical records for a minimum of three years.

There is also a HSA4 form which would be completed by the doctor who performed the
termination, within 14 days of it taking place, and sent to the Chief Medical Officer.

How do you get an abortion?

Abortions are only legal (and as safe as possible) if carried out by a licensed medical
practitioner.

There are three main ways to do this free of charge through the NHS:

 Speak to your GP and ask for a referral to an abortion service – your GP should refer
you to another doctor if they have any objections to abortion
 Visit a contraception clinic, family planning clinic, sexual health clinic or
genitourinary medicine (GUM) clinic and ask for a referral to an abortion service
 Contact an abortion provider directly – the British Pregnancy Advisory Service
(BPAS), Marie Stopes UK and the National Unplanned Pregnancy Advisory Service
(NUPAS) can tell you about eligibility and services in your area
What happens next?
Before having an abortion an appointment to discuss the decision and the details is
booked.

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Generally, there are two options:

 A medical abortion- you take to medications 24 to 48 hours apart to induce a

miscarriage
 Surgical abortion- you have a minor procedure to end the pregnancy and go home
soon after

What are the potential risks of having an abortion?

Abortions are safest if carried out early on in the pregnancy.

Most women won’t experience any problems and having a termination will not affect future
fertility.

There are however risks, such as:

 Infection of the womb

 Excessive bleeding
 Damage to the womb or the entrance (cervix)

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 CASE ANALYSIS

Case name - BhatouBoro v State of Assam,

Citation - 2017 Indlaw GUW 959

Fact – The matter pertains to a minor girl of around 11 years, who is carrying an
unwanted pregnancy. The victim was sexually assaulted over a period of time by an
elderly neighbor and the family recently learnt of the victim’s plight.

Issue raised - Whether, termination of pregnancy of minor victim is permissible in law.

Judgement - Held, while issuing returnable notice, Medical Board of GMCH is directed
to immediately evaluate feasibility of termination of pregnancy of child mother, focusing
on her interest, without being shackled by 1971 Act. Continuation of pregnancy for child
mother has certainly compromised her mental health and therefore, it should be assessed
by Medical Board if risk of termination of pregnancy is within acceptable limits, with
institutional backup of GMCH. In that event, with consent of father of minor victim,
appropriate procedure should be attempted in present case. If termination of pregnancy
can reasonably be attempted, Medical Board is at liberty and should take appropriate
decision, after re-evaluating patient. If medically feasible, necessary steps should then be
taken, to relieve child mother of anguish and trauma, on account of unwanted pregnancy.
It is ordered accordingly. Order accordingly.

Conclusion - Considering the above, while issuing returnable notice, the Medical Board
of the GMCH is directed to immediately evaluate the feasibility of termination of
pregnancy of the child mother, focusing on her interest, without being shackled by the
MTP Act. The continuation of pregnancy for the child mother has certainly compromised
her mental health and therefore, it should be assessed by the Medical Board if the risk of
termination of pregnancy is within the acceptable limits, with institutional backup of the
GMCH. In that event, with the consent of the father of the minor victim, the appropriate
procedure should be attempted in the present case. If termination of pregnancy can
reasonably be attempted, the Medical Board is at liberty and should take an appropriate
decision, after re-evaluating the patient. If medically feasible, the necessary steps should
then be taken, to relieve the child mother of the anguish and trauma, on account of the
unwanted pregnancy. It is ordered accordingly

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Case name - An NHS Trust v CS

Citation - [2016] EWCOP 10; [2017] 1 F.L.R. 635; [2016] C.O.P.L.R. 187; (2017) 153
B.M.L.R. 141; [2016] Fam. Law 437

Fact - The patient had been in a relationship with a partner who allegedly abused her. She
became pregnant and told her friends and sister that she wanted an abortion. Her sister
agreed to accompany her to a clinic, as she had done when the patient had had an abortion
some years earlier. However, before the appointment, the patient was allegedly violently
assaulted by her partner and suffered a serious brain injury. Her medical staff reported
that she had post-traumatic amnesia and could no longer retain information. She could not
remember what stage of pregnancy she was at. At times she indicated that she wanted to
keep the baby, but each time she then said that she wanted an abortion. She had problems
rehabilitating and occasionally fell over, with one such fall leading to a further head
injury. Her obstetrician believed that continuing the pregnancy would involve a greater
risk of injury to her physical health than if the pregnancy was terminated.

Issue raised - (1) The patient lacked capacity to decide whether to have an abortion.

(2) an abortion would be in her best interests.

Judgment - (1) The patient lacked capacity to make the decision. In so concluding, the
instant judge had considered the Mental Capacity Act 2005 s.1 to s.4 concerning a
person's ability to make a decision for themselves, the Act's Code of Practice para.3.14 as
to the likelihood of the person's capacity being restored, the central principles summarised
in CC v KK [2012] EWHC 2136 (COP), and the causal relationship between the person's
mental impairment and their inability to make the decision.

(2) Regarding the patient's best interests, it was necessary under case law and s.4(6) and
s.4(7) to consider her past and present wishes and feelings and the views of anyone
engaged in caring for her or interested in her welfare.

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Case name - R. v Secretary of State for Health

Citation - [2015] EWCA Civ 771; [2016] 1 W.L.R. 331; [2016] 2 F.L.R. 502; (2015) 146
B.M.L.R. 107

Fact - X was 15 and lived in Northern Ireland. She became pregnant and had a
termination at a private clinic in England. The Abortion Act 1967, which liberalised the
law on abortion, did not extend to Northern Ireland. In general, there was a right to free
treatment under the NHS in England only if the patient ordinarily resided in England. X
and Y brought proceedings on public law and human rights grounds, contending that the
secretary of state had acted unlawfully in failing to exercise his power to require abortion
services to be provided to women from Northern Ireland on the same basis as they were
to women in England. They argued that the failure was an irrational exercise of the
secretary of state's duty under the National Health Service Act 2006 s.3, and that it
breached ECHR art.8 and art.14 rights.

Issue raised - (1) There was a "reasonable requirement" for making abortion services
available to women from Northern Ireland as UK citizens.

Judgement - There was nothing irrational in the secretary of state's approach. It was
entirely logical to provide a range of NHS services throughout the UK on the basis of
local residence requirements. It was for the secretary of state to decide what was a
"reasonable requirement" in s.3 and whether it was necessary to meet that requirement.
He had to have regard to s.1 and to the fact that the obligation was to provide the service
in England for the people of England. That did not preclude the provision of a service on
the basis of presence alone, but it underpinned why it could not conceivably be said that
the secretary of state was obliged to exercise his discretion so as to extend free abortion
services in such a way. It was not irrational to consider that English taxpayers should not
bear the cost of providing abortion services to women from Northern Ireland.

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CONCLUSION

The MTP Act, 1971 came into enactment after a lot of struggle. At the time of inception it
made abortion legal for the first time in India. We may say that it was partly successful.
Many legal analysts say that it needs amendments because of 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 act can be made better with a few amendments that would be suitable for the present
time. Moreover this act was being misused as a lot of sex selective abortions began taking
place. To address this issue the Pre-Conception and Pre-Natal Diagnostics Techniques
(PCPNDT) Act was introduced to stop illegal use of ultrasound machine to determine sex and
close illegal clinics.

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