INTRODUCTION

Abortion is the termination of a pregnancy by the removal or expulsion of

a fetus or embryo from the uterus, resulting in or caused by its death.[1] An abortion can

occur spontaneously due to complications during pregnancy or can be induced in humans

and other species. In the context of human pregnancies, an abortion induced to preserve

the health of the gravida (pregnant female) is termed a therapeutic abortion, while an

abortion induced for any other reason is termed an elective abortion. The

term abortion most commonly refers to the induced abortion of a human pregnancy,

while spontaneous abortions are usually termed miscarriages.

Abortion has a low risk of maternal mortality except for abortions performed unsafely,

which result in 70,000 deaths and 5 million disabilities per year globally.[2] Abortions are

unsafe when performed by persons without the proper skills or outside of a medically

safe environment. An estimated 42 million abortions are performed annually with 20

million of those abortions done unsafely around the world. [2] Forty percent of the world's

women are able to access therapeutic and elective abortions within gestational limits.[3]

Abortion has a long history and has been induced by various methods including

herbal abortifacients, the use of sharpened tools, physical trauma, and other traditional

methods. Contemporary medicine utilizes medications and surgical procedures to induce

abortion. The legality, prevalence, cultural status, and religious status of abortion vary

substantially around the world. In many parts of the world there is prominent and

divisive public controversy over the ethical and legal issues of abortion. Abortion and

abortion-related issues feature prominently in the national politics in many nations, often
involving the opposing pro-life and pro-choice worldwide social movements (both self-

named). Incidence of abortion has declined worldwide as access to family

planning education and contraceptive services has increased.

The MTP Act (Act No. 34 of 1971) has been defined in its opening lines as ‘An Act to

provide for the termination of certain pregnancies by registered medical practitioners and

for matters connected therewith or incidental thereto’. Passed by Parliament on August

10, 1971, this is a Central Act that extends to the whole of India except the state of

Jammu and Kashmir, which adopted it in 1980.

The purpose of this act was to define the situations and circumstances in which safe

abortion could be legally performed and to empower medical practitioners and

institutions delivering this service. All practice of induced abortion medical or surgical

has to be conducted against the all-pervading backdrop of the MTP Act.

The MTP Act – A Protective Umbrella

Even today, voluntarily ‘causing miscarriage’ to a woman with child – other than in

‘good faith for the purpose of saving her life’ is a crime under Section 312 of the Indian

Penal Code, punishable by simple or rigorous imprisonment and/or fine. Consequent

sections (IPC Sections 313 – 316) relating to causing miscarriage without a pregnant

woman’s consent or causing maternal death due to the procedure are stricter, with

punishments ranging from up to 10 years imprisonment, and extending up to life

imprisonment.
The MTP Act is an empowering legislation, which if adhered to completely, offers

protective umbrella allowing clinicians to offer legal safe abortion services within well-

defined limits. The use of medical methodsfor early abortion is also completely covered

by the MTP Act.

MTP Act, MTP Rules and MTP Regulations

The MTP Act is an Act of Parliament providing a broad overview of the methodology of

safe abortion practice and defining and delegating authority to central and state

governments to make rules and regulations.

The MTP Rules are framed by the Central Government, but must be placed before each

House of Parliament.

The MTP Regulations are framed by State Governments and relate to issues involving

opinions for termination, reporting and maintaining secrecy.

The importance of this distinction is the possible flexibility in introducing or modifying

rules and regulations within the ambit of the Act without having to steer amendments

through Parliament.

The potential for appropriate changes in rules and regulations to encompass medical

methods is particularly significant, since this new development is not adequately reflected

in the present rules and regulations.

 TYPES

Induced

A 10-week-old fetus removed via a therapeutic abortion from a 44-year-old woman

diagnosed with early-stage uterine cancer. The uterus (womb), included the fetus.

A pregnancy can be intentionally aborted in many ways. The manner selected depends

chiefly upon the gestational age of the embryo or fetus, which increases in size as the

pregnancy progresses.[5] Specific procedures may also be selected due to legality, regional

availability, and doctor-patient preference. Reasons for procuring induced abortions are

typically characterized as either therapeutic or elective. An abortion is medically referred

to as a therapeutic abortion when it is performed to:

 save the life of the pregnant woman;[6]

 preserve the woman's physical or mental health;[6]

 terminate pregnancy that would result in a child born with a congenital

disorder that would be fatal or associated with significantmorbidity;[6] or

 selectively reduce the number of fetuses to lessen health risks associated

with multiple pregnancy.[6]

An abortion is referred to as elective when it is performed at the request of the woman

"for reasons other than maternal health or fetal disease."[7]

Spontaneous

Main article: Miscarriage

Spontaneous abortion (also known as miscarriage) is the expulsion of an embryo or fetus

due to accidental trauma or natural causes before approximately the 22nd week of

gestation; the definition by gestational age varies by country.[8] Most miscarriages are due

to incorrect replication of chromosomes; they can also be caused by environmental

factors. A pregnancy that ends before 37 weeks of gestation resulting in a live-born infant

is known as a "premature birth". When a fetus dies in utero after about 22 weeks, or

during delivery, it is usually termed "stillborn". Premature births and stillbirths are

generally not considered to be miscarriages although usage of these terms can sometimes

overlap.

Between 10% and 50% of pregnancies end in clinically apparent miscarriage, depending

upon the age and health of the pregnant woman.[9] Most miscarriages occur very early in

pregnancy, in most cases, they occur so early in the pregnancy that the woman is not even

aware that she was pregnant. One study testing hormones for ovulation and pregnancy

found that 61.9% of conceptuses were lost prior to 12 weeks, and 91.7% of these losses

occurred subclinically, without the knowledge of the once pregnant woman.[10]

The risk of spontaneous abortion decreases sharply after the 10th week from the last

menstrual period (LMP).[9][11] One study of 232 pregnant women showed "virtually

complete [pregnancy loss] by the end of the embryonic period" (10 weeks LMP) with a

pregnancy loss rate of only 2 percent after 8.5 weeks LMP.[12]

The most common cause of spontaneous abortion during the first trimester is

chromosomal abnormalities of the embryo/fetus,[13] accounting for at least 50% of

sampled early pregnancy losses.[14] Other causes include vascular disease (such

as lupus), diabetes, other hormonal problems, infection, and abnormalities of the uterus.
[13]
Advancing maternal age and a patient history of previous spontaneous abortions are

the two leading factors associated with a greater risk of spontaneous abortion. [14] A

spontaneous abortion can also be caused by accidental trauma; intentional trauma or

stress to cause miscarriage is considered induced abortion or feticide.[15]

Methods

Gestational age may determine which abortion methods are practiced.

Medical

Main article: Medical abortion

"Medical abortions" are non-surgical abortions that use pharmaceutical drugs. As of

2005, medical abortions constitute 13% of all abortions in the United States.[16] Combined

regimens include methotrexate or mifepristone, followed by

aprostaglandin (either misoprostol or gemeprost: misoprostol is used in the U.S.;

gemeprost is used in the UK and Sweden.) When used within 49 days gestation,

approximately 92% of women undergoing medical abortion with a combined regimen

completed it without surgical intervention.[17] Misoprostol can be used alone, but has a

lower efficacy rate than combined regimens. In cases of failure of medical abortion,

vacuum or manual aspiration is used to complete the abortion surgically.

Surgical

A vacuum aspiration abortion at eight weeks gestational age (six weeks after

fertilization).

1: Amniotic

2: Embryo

3: Uterine

4: Speculum

5: Vacurette

6: Attached to a suction pump

In the first 12 weeks, suction-aspiration or vacuum abortion is the most common method.
[18]
Manual vacuum aspiration (MVA) abortion consists of removing

the fetus or embryo, placenta and membranes by suction using a manual syringe,

while electric vacuum aspiration (EVA) abortion uses an electric pump. These

techniques are comparable, and differ in the mechanism used to apply suction, how early

in pregnancy they can be used, and whether cervical dilation is necessary. MVA, also
known as "mini-suction" and "menstrual extraction", can be used in very early

pregnancy, and does not require cervical dilation. Surgical techniques are sometimes

referred to as 'Suction (or surgical) Termination Of Pregnancy' (STOP). From the 15th

week until approximately the 26th, dilation and evacuation (D&E) is used. D&E consists

of opening thecervix of the uterus and emptying it using surgical instruments and suction.

Dilation and curettage (D&C), the second most common method of surgical abortion, is

a standard gynecological procedure performed for a variety of reasons, including

examination of the uterine lining for possible malignancy, investigation of abnormal

bleeding, and abortion.Curettage refers to cleaning the walls of the uterus with a curette.

The World Health Organization recommends this procedure, also calledsharp

curettage, only when MVA is unavailable.[19]

Other techniques must be used to induce abortion in the second trimester. Premature

delivery can be induced with prostaglandin; this can be coupled with injecting

the amniotic fluid with hypertonic solutions containing saline or urea. After the 16th

week of gestation, abortions can be induced by intact dilation and extraction (IDX) (also

called intrauterine cranial decompression), which requires surgical decompression of the

fetus's head before evacuation. IDX is sometimes called "partial-birth abortion," which

has been federally banned in the United States. Ahysterotomy abortion is a procedure

similar to a caesarean section and is performed under general anesthesia. It requires a

smaller incision than a caesarean section and is used during later stages of pregnancy.[20]

The Royal College of Obstetricians and Gynaecologists has recommended that an

injection be used to stop the fetal heart during the first phase of the surgical abortion

procedure to ensure that the fetus is not born alive.[21]

Other methods

Bas-relief at Angkor Wat, Cambodia, c. 1150, depicting a demon inducing an abortion by

pounding the abdomen of a pregnant woman with a pestle.[22]

Historically, a number of herbs reputed to possess abortifacient properties have been used

in folk medicine: tansy, pennyroyal, black cohosh, and the now-

extinct silphium (see history of abortion).[23] The use of herbs in such a manner can cause

serious—even lethal—side effects, such as multiple organ failure, and is not

recommended by physicians.[24]

Abortion is sometimes attempted by causing trauma to the abdomen. The degree of force,

if severe, can cause serious internal injuries without necessarily succeeding in

inducing miscarriage.[25] Both accidental and deliberate abortions of this kind can be

subject to criminal liability in many countries. In Southeast Asia, there is an ancient

tradition of attempting abortion through forceful abdominal massage.[26] One of the bas

reliefs decorating the temple of Angkor Wat in Cambodia depicts a demon performing

such an abortion upon a woman who has been sent to the underworld.[26]

Reported methods of unsafe, self-induced abortion include misuse of misoprostol, and

insertion of non-surgical implements such as knitting needles and clothes hangers into the
uterus. These methods are rarely seen in developed countries where surgical abortion is

legal and available

Abortion, when legally performed in developed countries, is among the safest procedures

in medicine.[28][29] In such settings, risk of maternal death is between 0.2–1.2 per 100,000

procedures.[30][31][32][33] In comparison, by 1996, mortality from childbirth in developed

countries was 11 times greater.[30][34][35][36][37][38] Unsafe abortions (defined by the World

Health Organization as those performed by unskilled individuals, with hazardous

equipment, or in unsanitary facilities) carry a high risk of maternal death and other

complications.[39] For unsafe procedures, the mortality rate has been estimated at 367 per

100,000 (70,000 women per year worldwide).[2][40]

Physical health

Surgical abortion methods, like most minimally invasive procedures, carry a small

potential for serious complications.[41]

Surgical abortion is generally safe and the rate of major complications is low [42] but varies

depending on how far pregnancy has progressed and the surgical method used.
[43]
Concerning gestational age, incidence of major complications is highest after 20

weeks of gestation and lowest before the 8th week.[43] With more advanced gestation

there is a higher risk of uterine perforation and retained products of conception,[44] and

specific procedures like dilation and evacuation may be required.[45]

Concerning the methods used, general incidence of major complications for surgical

abortion varies from lower for suction curettage, to higher for saline instillation.
[43]
Possible complications include hemorrhage, incomplete abortion, uterine or pelvic

infection, ongoing intrauterine pregnancy, misdiagnosed/unrecognized ectopic

pregnancy, hematometra (in the uterus), uterine perforation and cervical laceration.
[46]
Use of general anesthesia increases the risk of complications because it relaxes uterine

musculature making it easier to perforate.[47]

Women who have uterine anomalies, leiomyomas or had previous difficult first-trimester

abortion are contraindicated to undertake surgical abortion unless ultrasonography is

immediately available and the surgeon is experienced in its intraoperative use.

[48]
Abortion does not impair subsequent pregnancies, nor does it increase the risk of

future premature births, infertility,ectopic pregnancy, or miscarriage.[29]

In the first trimester, health risks associated with medical abortion are generally

considered no greater than for surgical abortion.[49]

Although some epidemiological studies suggest an abortion – breast cancer association,

the World Health Organization has concluded from large cohort studies that there is "no

consistent effect of first trimester induced abortion upon a woman's risk of breast cancer

later in life".[50][51] The National Cancer Institute,[52] the Royal College of Obstetricians

and Gynaecologists,[53] and other major medical bodies have concluded that abortion does

not cause breast cancer.[54][55]

Mental health

Main article: Abortion and mental health

No scientific research has demonstrated that abortion is a cause of poor mental health in

the general population. However there are groups of women who may be at higher risk of

coping with problems and distress following abortion.[56] Some factors in a woman's life,

such as emotional attachment to the pregnancy, lack of social support, pre-existing

psychiatric illness, and conservative views on abortion increase the likelihood of

experiencing negative feelings after an abortion.[57] The American Psychological

Association (APA) concluded that abortion does not lead to increased mental health

problems.[58]

Some proposed negative psychological effects of abortion have been referred to by pro-

life advocates as a separate condition called "post-abortion syndrome." However, the

existence of "post-abortion syndrome" is not recognized by any medical or psychological

organization

INSTANCES OF ABORTION

There are two commonly used methods of measuring incidence of abortion:

Abortion rate - number of abortions per 1000 women between 15 and 44 years of age

Abortion ratio - number of abortions out of 100 known pregnancies (excluding

miscarriages and stillbirths)

The number of abortions performed worldwide has decreased between 1995 and 2003

from 45.6 million to 41.6 million, which means a decrease in abortion rate from 35 to 29

per 1000 women. The greatest decrease has occurred in the developed world with a drop

from 39 to 26 per 1000 women in comparison to the developing world, which had a

decrease from 34 to 29 per 1000 women. Out of a total of about 42 million abortions 22

million occurred safely and 20 million unsafely.[2]

On average, the frequency of abortions is similar in developing countries (where abortion

is generally restricted) to the frequency in developed countries (where abortion is

generally much less restricted).[3][62] Abortion rates are very difficult to measure in

locations where those abortions are illegal,[63] and pro-life groups have criticized

researchers for allegedly jumping to conclusions about those numbers.[64] According to

the Guttmacher Institute and the United Nations Population Fund, the abortion rate in

developing countries is largely attributable to lack of access to modern contraceptives;

assuming no change in abortion laws, providing that access to contraceptives would

result in about 25 million fewer abortions annually, including almost 15 million fewer

unsafe abortions.[65]

The incidence of induced abortion varies regionally. Some countries, such as Belgium

(11.2 out of 100 known pregnancies) and the Netherlands (10.6 per 100), had a

comparatively low ratio of induced abortion. Others like Russia (62.6 out of 100),

Romania (63 out of 100) and Vietnam (43.7 out of 100) had a high ratio (data for last
three countries of unknown completeness). The estimated world ratio was 26%, the world

rate - 35 per 1000 women.[66]

By gestational age and method

Histogram of abortions by gestational age in England and Wales during 2004. Average is 9.5 weeks. (left) Abortion in the

United States by gestational age, 2004. (Data source: Centers for Disease Control and Prevention) (right)

Abortion rates also vary depending on the stage of pregnancy and the method practiced.

In 2003, from data collected in those areas of the United States that sufficiently reported

gestational age, it was found that 88.2% of abortions were conducted at or prior to 12

weeks, 10.4% from 13 to 20 weeks, and 1.4% at or after 21 weeks. 90.9% of these were

classified as having been done by "curettage" (suction-aspiration, Dilation and

curettage, Dilation and evacuation), 7.7% by "medical" means (mifepristone), 0.4% by

"intrauterine instillation" (saline or prostaglandin), and 1.0% by "other"

(including hysterotomy and hysterectomy).[67] The Guttmacher Institute estimated there

were 2,200 intact dilation and extraction procedures in the U.S. during 2000; this

accounts for 0.17% of the total number of abortions performed that year.[68] Similarly, in

England and Wales in 2006, 89% of terminations occurred at or under 12 weeks, 9%

between 13 to 19 weeks, and 1.5% at or over 20 weeks. 64% of those reported were by
vacuum aspiration, 6% by D&E, and 30% were medical. [69] Later abortions are more

common in China, India, and other developing countries than in developed countries.[70]

By personal and social factors

A bar chart depicting selected data from the 1998 AGI meta-study on the reasons women

stated for having an abortion.

A 1998 aggregated study, from 27 countries, on the reasons women seek to terminate

their pregnancies concluded that common factors cited to have influenced the abortion

decision were: desire to delay or end childbearing, concern over the interruption of work

or education, issues of financial or relationship stability, and perceived immaturity. [71] A

2004 study in which American women at clinics answered a questionnaire yielded similar

results.[72] In Finland and the United States, concern for the health risks posed by

pregnancy in individual cases was not a factor commonly given; however, in Bangladesh,

India, and Kenya health concerns were cited by women more frequently as reasons for

having an abortion.[71] In the 2004 survey-based U.S. study, 1% of women having

abortions became pregnant as a result of rape and 0.5% as a result of incest.[72] Another

American study in 2002 concluded that 54% of women who had an abortion were using a

form of contraception at the time of becoming pregnant while 46% were not. Inconsistent

use was reported by 49% of those using condoms and 76% of those using the combined

oral contraceptive pill; 42% of those using condoms reported failure through slipping or

breakage.[73] The Guttmacher Institute estimated that "most abortions in the United States
are obtained by minority women" because minority women "have much higher rates of

unintended pregnancy."[74]

Some abortions are undergone as the result of societal pressures. These might include the

stigmatization of disabled people, preference for children of a specific sex, disapproval of

single motherhood, insufficient economic support for families, lack of access to or

rejection of contraceptive methods, or efforts toward population control (such as

China's one-child policy). These factors can sometimes result in compulsory abortion

or sex-selective abortion.

Unsafe abortion

Soviet poster circa 1925, warning against midwives performing abortions. Title

translation: "Abortions performed by either trained or self-taught midwives not only

maim the woman, they also often lead to death."

Main article: Unsafe abortion

Women seeking to terminate their pregnancies sometimes resort to unsafe methods,

particularly when access to legal abortion is restricted. About one in eight pregnancy-

related deaths worldwide are associated with unsafe abortion.[75]

The World Health Organization (WHO) defines an unsafe abortion as being "a

procedure ... carried out by persons lacking the necessary skills or in an environment that
does not conform to minimal medical standards, or both."[76] They may be performed

by the woman herself, by another person without medical training, or by a healthcare

professional operating in sub-standard conditions. Unsafe abortion remains a public

health concern due to the higher incidence and severity of its associated complications,

such as incomplete abortion, sepsis, hemorrhage, and damage to internal organs.

The legality of abortion is one of the main determinants of its safety. Restrictive abortion

laws are associated with a high rate of unsafe abortions.[2][77][78] In addition, a lack of

access to safe and effective contraception contributes to unsafe abortion. It has been

estimated that the incidence of unsafe abortion could be reduced by as much as 73%

without any change in abortion laws if modern family planning and maternal health

services were readily available globally.[79]

Forty percent of the world's women are able to access therapeutic and elective abortions

within gestational limits.[3] While maternal mortalityseldom results from safe abortions,

unsafe abortions result in 70,000 deaths and 5 million disabilities per year.
[2]
Complications of unsafe abortion are said to account for approximately 12%

of maternal mortalities in Asia, 25% in Latin America, and 13% in sub-Saharan Africa.
[80]
Although the global rate of abortion declined from 45.6 million in 1995 to 41.6 million

in 2003, unsafe procedures still accounted for 48% of all abortions performed in 2003.
[77]
Health education, access to family planning, and improvements in health care during

and after abortion have been proposed to address this phenomenon.[81]

Sex-selective

Main article: 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 targeted

termination of female fetuses.

It is suggested that sex-selective abortion might be partially responsible for the noticeable

disparities between the birth rates of male and female children in some places. The

preference for male children is reported in many areas of Asia, and abortion used to limit

female births has been reported in China, Taiwan, South Korea, and India.[115]

In India, the economic role of men, the costs associated with dowries, and a common

Indian tradition which dictates that funeral rites must be performed by a male relative

have led to a cultural preference for sons.[116] The widespread availability of diagnostic

testing, during the 1970s and '80s, led to advertisements for services which read, "Invest

500 rupees [for a sex test] now, save 50,000 rupees [for a dowry] later." [117] In 1991, the

male-to-female sex ratio in India was skewed from its biological norm of 105 to 100, to

an average of 108 to 100.[118]Researchers have asserted that between 1985 and 2005 as

many as 10 million female fetuses may have been selectively aborted.[119] The Indian

government passed an official ban of pre-natal sex screening in 1994 and moved to pass a

complete ban of sex-selective abortion in 2002.[120]

In the People's Republic of China, there is also a historic son preference. The

implementation of the one-child policy in 1979, in response to population concerns, led

to an increased disparity in the sex ratio as parents attempted to circumvent the law

through sex-selective abortion or the abandonment of unwanted daughters.[121] Sex-

selective abortion might be an influence on the shift from the baseline male-to-female

birth rate to an elevated national rate of 117:100 reported in 2002. The trend was more
pronounced in rural regions: as high as 130:100 in Guangdong and 135:100 in Hainan.
[122]
A ban upon the practice of sex-selective abortion was enacted in 2003.[123]

Anti-abortion violence

Main article: Anti-abortion violence

Doctors and facilities that provide abortion have been subjected to various forms of

violence, including murder, attempted murder, kidnapping, stalking, assault, arson, and

bombing. Anti-abortion violence has been classified by governmental and scholarly

sources as terrorism.[124][125] Only a small fraction of those opposed to abortion commit

violence, often rationalizing their actions as justifiable homicide or defense of others,

committed in order to protect the lives of fetuses.

In the United States, four abortion providers—Drs. David Gunn, John Britton, Barnett

Slepian, and George Tiller—have been assassinated. Attempted assassinations have also

taken place in the United States and Canada, and other personnel at abortion clinics,

including receptionists and security guards, have been killed in the United States and

Australia. Hundreds of bombings, arsons, acid attacks, invasions, and incidents of

vandalism against abortion providers have also occurred.[126][127] Notable perpetrators of

anti-abortion violence include Eric Robert Rudolph, Scott Roeder, Shelley Shannon,

and Paul Jennings Hill, the first person to be executed in the United States for murdering

an abortion provider.[128]
 LEGAL STATUS

As per India’s abortion laws only qualified doctors, under stipulated conditions, can

perform abortion on a woman in an approved clinic or hospital. The Indian abortion laws

fall under the Medical Termination of Pregnancy (MTP) Act, which was enacted by the

Indian Parliament in the year 1971. The MTP Act came into effect from April 1, 1972

and was once amended in 1975. The Medical Termination of Pregnancy (MTP) Act
of India clearly states the conditions under which a pregnancy can be ended or aborted,

the persons who are qualified to conduct the abortion and the place of implementation.[1]

Sex-selective abortion

Giving or taking prenatal tests, including ultrasound scanning, solely to determine the sex

of the fetus was criminalized by Indian law in 1994. In 2002, the penalties were stiffened:

up to three years in jail and a Rs. 10,000 fine for the first offense and five years

imprisonment and Rs. 50,000 for the second.

According to the Consortium on National Consensus for Medical Abortion in India,

every year an average of about 11 million abortions take place annually and around

20,000 women die every year due to abortion related complications. [2] Most abortion-

related maternal deaths are attributable to illegal abortions.[3] In the following table

Number of abortions reported includes legal reported induced abortions.[4]

Year 1972 1975 1980 1985 1990 1995 2000

Number of abortions
24300 214197 388405 583704 581215 570914 723142
reported
Indications for early medical abortion

General condition to be fulfilled

All women coming to a health facility seeking termination of pregnancy up to 7 weeks

period of gestation (49 days from the first day of the last menstrual period in women with

regular cycle of 28 days) provided the following aspects have been assessed and found

appropriate:[5]

 frame of the mind of patient and her acceptability of minimum three follow-up

visits

 ready for surgical procedure if failure or excessive bleeding occurs

  family support

 permission of guardian in case of minor as per MTP Act 1971

 easy access to appropriate health care facility

Only registered medical practitioners as prescribed by the MTP Act are authorized to

prescribe mifepristone with misoprostol for medical abortion (Definition 2(d) of section 2

and MTP rule 3). Mifepristone with misoprostol for termination of early pregnancy not

exceeding seven weeks, may be prescribed by a registered medical practitioner as

prescribed under section 2 (d) and rule 3, having access to a place approved by the

Government under section 4 (b) and rule (1), for surgical and emergency back-up when

such a back-up is indicated. This may include primary health care-clinic or hospital-based

set-up. Initial workup, counseling, prescription and administration could be in a clinic or

in the consulting room. Home administration of misoprostol may be advised at discretion

in certain cases with an access to 24-hours emergency services.

Choice between Medical and Surgical Abortion

 Vacuum Aspiration (Suction evacuation) is the most commonly-used method for

termination of early pregnancies. However, being a surgical technique, it is

associated with risks of infection, perforation of uterus, incomplete abortion and

post-procedure uterine synechiae formation (Asherman's Syndrome).

 The success of abortion with drugs depends on multiple factors including the

regimen used,dosage schedule, route of administration and gestational age.

 Mifepristone with misoprostol is favourable if pregnancy is = 7 weeks.

 Surgical abortion is preferred if patient desires concurrent tubal ligation.

  If a woman fulfills the criteria for selecting either method, final choice to be given

to the woman.

'it is legalized in India.

Contraindications for medical abortion

For cases in which a pregnant woman has a serious medical disease and continuation of

pregnancy could endanger her life, the Indian MTP act lays a clear guideline under which

medical abortion is contraindicated.

Contraindications due to Medical Reasons

 smoking > 35 years

 anemia – hemoglobin < 8 gm %

 suspected /confirmed ectopic pregnancy / undiagnosed adnexal mass

 coagulopathy or women on anticoagulant therapy

 chronic adrenal failure or current use of systemic corticosteroids

 uncontrolled hypertension with BP >160/100mmHg

 cardio-vascular diseases such as angina, valvular disease, arrhythmia

 severe renal, liver or respiratory diseases

 glaucoma

 uncontrolled seizure disorder

 allergy or intolerance to mifepristone / misoprostol or other prostaglandins

 lack of access to 24-hours emergency services.

Psycho-social situations

These include the cases in which

  women unable to take responsibility

 anxious women wanting quick abortion

 language or comprehension barrier

 not willing for surgical abortion in case of failure

THE TERMINATION OF PREGNANCY ACT

The Indian Medical Termination of Pregnancy (MTP) Act

In order to prevent the misuse of induced abortions, most countries in the world have

created strict abortion laws and so has India. As per India’s abortion laws only qualified

doctors, under stipulated conditions, can execute an act of abortion on a woman in a

clinic or a hospital that has been approved of doing so. The Indian abortion laws fall
under the Medical Termination of Pregnancy (MTP) Act, which was enacted by the

Indian Parliament in the year 1971. The MTP Act, however, came into effect from 01

April, 1972 and was once amended in 1975.

Grounds for Abortion as per the Indian MTP Act

The Medical Termination of Pregnancy (MTP) Act of India clearly mentions the

conditions under which only a pregnancy can be ended or the foetus aborted, the persons

who are qualified to conduct the abortion and the place of implementation. The grounds,

thus, for conducting an abortion as interpreted from the Indian MTP Act are:

1. A pregnancy may be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does not exceed twelve weeks if such medical

practitioner is Of opinion, formed in good faith, that,-

i) the continuance of the pregnancy would involve a risk to the life of the pregnant

woman or of grave injury to her physical or mental health ; or

(ii) 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, when the pregnancy exceeds 12 weeks but is below 20 weeks, the consultation

of two registered medical practitioners is required.

2. A pregnancy occurring as a result of rape

3. Failure of contraceptive device used by a couple.

Consent of the following kinds is required before a legal abortion by an approved

practitioner can be conducted on a pregnant female:

• If married--- her own written consent. Husband’s consent not needed.

• If unmarried and above 18years ---her own written consent.

 • If below 18 years ---written consent of her guardian.

• If mentally unstable --- written consent of her guardian.

Physicians approved for conducting MTP are:

• A qualified registered medical practitioner who has helped in 25 MTPs.

• A house surgeon who has undergone six months post in Obstetrics and

Gynecology.

• A person who has a diploma /degree in Obstetrics and Gynecology.

• Three years of practice in Obstetrics and Gynecology for those doctors registered

before the 1971 MTP Act was passed.

• A year of practice in Obstetrics and Gynecology for the doctors registered on or

after the date of commencement of the Act.

IS THE INDIAN LAW ON MEDICAL TERMINATION OF PREGNANCY

CONSTITUTIONALLY VALID

Article 14:

The concept of equality and equal protection of laws guaranteed by article 14 in its

proper spectrum encompasses social and economic justice in a political

democracy.1 Equal protection means the right to equal treatment in similar

circumstances,2 both in the privileges conferred and in the liabilities imposed. However,

the principle of equality does not mean that every law must have universal application for

all persons who are not by nature, attainment or circumstances in the same position, as

the varying needs of different classes of persons often require separate treatment. It

would be inexpedient and incorrect to think that all laws have to be made uniformly

applicable to all people in one go.3 The principle enshrined in Article 14 does not take

away from the state the power of classifying persons for legitimate purposes.4 The

legislature is competent to exercise its discretion and make classification.5 Every

classification is in some degree likely to produce some inequality. Differential treatment

does not per se constitute violation of Art. 14. It denies equal protection only when there

is no reasonable basis for the differentiation.6

Article 14 prohibits class legislation but not reasonable classification for the purpose of

legislation.7 In order, however, to pass the test of permissible classification, two

conditions must be fulfilled, viz,

1. That the classification must be founded on an intelligible differentia which

distinguishes persons or things that are grouped together from those that

are left out of the group; and

2. That the differentia must have a rational relation to the objects sought to

be achieved by the statute in question.8

The classification may be founded on differential basis according to objects sought to be

achieved but what is implicit in it is that there ought to be a nexus i.e., causal connection

between the basis of classification and object of the statute under consideration9.
In the case of pregnancy, the classification is between the two genders. The decision

making power lies in the woman as she is undergoing the nine-month process of

pregnancy and it is her body has to bear the brunt of the pregnancy. Therefore, the entire

decision making power must obviously lie with the mother. The father has no say in this

decision as he is a silent spectator to the process and there are no adverse effects on his

body due to the pregnancy. As a result, there is a causal connection between the basis of

classification and the object of the statute and the classification enunciated in the Act

regarding the decision making power lying in the hands of the woman is entirely

reasonable and justifiable. The presumption that the classification is reasonable is always

in favour of the constitutionality of an enactment, since it must be assumed that the

Legislature understands and correctly appreciates the needs of its own people, that its

laws are directed to problems made manifest by experience and its discrimination are

based on adequate grounds.10 In Paton v. Trustees of BPAS and Anr.,11 the Queen’s

Bench Division held that the husband of the pregnant woman had no right, enforceable at

law or in equity, to stop his wife having, or a registered medical practitioner performing a

legal abortion. His prayer for injunction was denied. Thus, a husband has no right to

interfere if his wife wishes to undergo medical termination of pregnancy. This qualifies

as a reasonable exception to Art. 14 and hence, is not in violation of it.

Arbitrariness:

The question of arbitrariness flows out of Article 14 of the Constitution of India. A

government policy or statute, unless shown manifestly arbitrary or wholly unreasonable

cannot be held violative of Art. 14.12 An Act of legislature cannot be struck down merely

by saying it is arbitrary.13 The question of arbitrariness arises only when the question of
equality before law without reasonable classification has been violated.14 It has been

proved that the MTP Act does not violate Article 14. Therefore, it is not arbitrary in

nature.

Article 21:

Article 21 of the Constitution of India enshrines the protection of life and personal

liberty. Now, before a person is deprived of his life or personal liberty, the procedure

established by law must be strictly followed and must not be departed from to the

disadvantage of the person affected.15 Procedure established by law under Art. 21 means

the procedure prescribed by the State-made or enacted law.16 But this law should not be

arbitrary, unfair or unreasonable.17 It must be mentioned that the MTP Act has not been

enacted to legalise abortions. Instead, the Act aims at termination of pregnancy in the

interest of the woman or the to-be-born child.18 It would appear that the dominant object

to achieve for which the law has been enacted is to save the life of the pregnant woman or

to relieve her of any injury toward physical and mental health or prevent the possible

deformities in the child - to be born.

There is thus avoidable wastage of the mother's health, strength and, sometimes, life. The

proposed measure which seeks to liberalize certain existing provisions relating to

termination of pregnancy has been conceived.

1. As a health measure - When there is danger to the life or risk to

physical or mental health of the woman;

2. On humanitarian grounds - Such as when pregnancy arises from a

sex crime like rape or intercourse with a lunatic woman, etc.;

 3. Eugenic grounds - Where there is substantial risk that the child, if

born, would suffer from deformities and diseases.

The object of the Act being to save the life of the pregnant woman or relieve her of any

injury to her physical and mental health, and no other thing, it would appear the Act is

rather in consonance with Article 21 of the Constitution of India than in conflict with it.

While it may be debatable as to when the foetus comes to life so as to attract Article 21 of

the Constitution of India, there cannot be two opinions regarding the fact that where

continuance of pregnancy is likely to involve risk to the life of the pregnant woman or

cause grave injury to her physical and mental health, it would be in her interest to

terminate the pregnancy. Furthermore, the termination of pregnancy is not something

which is provided for the first time by the Medical Termination of Pregnancy Act. It was

provided for by the British in their enactment of the Indian Penal Code in 1860. Section

312 of the Indian Penal Code too protects termination of pregnancy described as

miscarriage; if it is done “in good faith for the purpose of saving the life of the woman”.

Similarly Section 315 of the Indian Penal Code protects any act done with intent to

prevent child from being born alive or causing it to die after its birth “if such act has been

done in good faith for the purpose of saving the life of the mother”.

Therefore, the MTP Act is not in violation of Art. 21.

Right to Privacy:

The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of

this country by Article 21.19 The right to privacy is an essential component of the right to

life but is not absolute and may be restricted for prevention of crime, disorder or

protection of health or morals or protection of the rights and freedom of others.20 This
qualifies as a reasonable restriction to the woman’s right to privacy as this entails the life

of an unborn child. An unborn child can only be termination as per the conditions

mentioned in Section 3 of the Act, and this statute is in no way interfering with the

woman’s right to privacy.

International Law:

England’s first criminal abortion statute, Lord Ellenborough’s Act was passed in 1803. It

made abortion of a quick foetus a capital crime; but it provided lesser penalties for the

felony of abortion before quickening. A notable development was made in the case

of Rex (SIC) Bourne,21 which held that was for the prosecution to prove beyond a

reasonable doubt that the abortion was not performed in good faith for the purpose only a

preserving the life of the mother. The surgeon was not to wait until the patient was in

peril of immediate death, but it was his duty to perform the operation if, on reasonable

grounds and with adequate knowledge, he was of opinion that the probable consequence

of the continuance of the pregnancy would be to make the patient a physical and mental

wrack. The British Parliament enacted the Abortion Act of 1967, which provided (a) that

the continuance of the pregnancy would involve risk to the life of the pregnant woman or

of injury to her physical or mental health or of any existing children of her family, greater

than if the pregnancy was terminated, or, (b) there is a substantial risk that if the child

was born it would suffer from such physical or mental abnormalities as to be seriously

handicapped. The Act also provided that in making this determination, account may be

taken of the pregnant woman's actual or reasonably foreseeable environment.

The Halsbury’s Laws of England22 deals with Medical Termination of Pregnancy. It reads

thus: “No offence is committed under the law relating to abortion when a pregnancy is
terminated by a registered medical practitioner if two registered medical practitioners

are of the opinion, formed in good faith, that the continuance of the pregnancy would

involve risk to the life of the pregnant woman, or of injury to the physical or mental

health of the pregnant woman or any existing children of her family greater than if the

pregnancy were terminated, or that there is a substantial risk that if the child were born

it would suffer tram such physical or mental abnormalities as to be seriously

handicapped.”

The United States Supreme Court held in Roe v. Wade23 that the right of privacy of a

woman is protected by the Due Process Clause of the Fourteenth Amendment and that

right enabled her to decide whether or not to terminate a pregnancy. Neither the husband

nor the State had any right to interfere with her decision.

Therefore, the Indian law on the matter, i.e., the MTP Act, 1971, is valid. Section 3 of the

Act is derived from the aforementioned international law and thus, is not in breach of

social, economic or cultural rights. Furthermore, it was held in the case of Dr. Nikhil D.

Dattar, Gynaecologist, Mr. X and Mrs. Y v.Union of India and State of

Maharashtra24 that “Under the guise of reading down a provision of law, the Courts are

not empowered to legislate upon a statute.”

CASE LAW

A 13-year-old girl has approached Gujarat High Court seeking permission for abortion

after she got pregnant allegedly due to repeated rape by her employer.
The petition before the court states that the minor girl will have to suffer extreme mental

agony to give birth to a child resulting out of rape at this tender age.

Justice Anant S Dave after listening to the arguments from girl's advocate Hriday Buch,

issued notice yesterday to the investigating officer asking him to remain present before

the court on April 28 with probe papers.

The victim girl belongs to a poor family in Dhrangadhra of Surendranagar district. The

girl used to work at her neighbour Ghanshyamsinh Rajput's house as domestic help.

Rajput allegedly continued to have physical relations forcibly with the minor, who is two-

month pregnant now.

It was after the victim's family members discovered her pregnancy, that they

approached police and lodged an FIR against the neighbour.

Later, they approached a doctor to get the pregnancy terminated. The doctor asked them

to obtain permission from the court as they had registered a case with police.

The family approached the local court in Surendranagar, but the judge denied permission

to terminate pregnancy on the grounds that the girl looked healthy and pregnancy was not

likely to cause physical harm to her.

The family then approached the High Court and the counsel argued that provisions of the

Medical Termination of Pregnancy Act, 1971 would not hamper the process in this case.

D Rajeshwari Vs State of Tamil Nadu 1996 CrilJ 3795

The case, is of 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, which would result in a

grave injury to her mental health, since the pregnancy was caused by rape. The Court

granted the permission to terminate the pregnancy.

Dr. Nisha Malviya and Anr. Vs. State of M.P. 2000CriLJ671

The accused had committed rape on minor girl aged about 12 years and made her

pregnant. The allegations are that two other co-accused 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.

Murari Mohan Koley Vs. The State and Anr. 2003

In this case, a woman wanted to have abortion on the ground that she has a 6 months old

daughter. She approached the petitioner for an abortion. And the petitioner agreed to it

for a consideration. But somehow the condition of the woman worsened in the hospital

and she was shifted to another hospital. But it resulted in her death. The abortion was not

done.

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.

Shri Bhagwan Katariya and others Vs. State of M.P. 2000.

The woman was married to Navneet. Applicants are younger brothers of said Navneet

while Bhagwan Katariya 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.
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 depriving

her of her child. And the Doctor will be 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.

RIGHT OF MOTHER VS. RIGHT OF FOETUS

IN MEDICO-LEGAL PERSPECTIVE

Whatever be the consequences for herself or the foetus she carries. The Constitution of

India provides for right to life and liberty under Article 21 and this concept of ‘liberty’

subsumes within itself certain unenumerated rights, which are essential to human dignity.

One such right is the right to privacy, i.e. an individual has an absolute control over his

body and no one can interfere with his bodily integrity except with his permission.

Similarly, the courts have recognized that a foetus is a person in the eyes of law and as

such it enjoys all the privileges and rights enjoyed by a human being.

The conflict juxtaposed in this paper, is that a woman carrying a foetus in her womb has a

legal and well-recognized right to privacy not to allow any sort of interference with her

body. On the other hand, foetus also possesses a valid, justified and legally recognized

right to life. In court-ordered caesarean sections, both these rights come in conflict and it
is left to the wisdom of courts to decide, to which right they should give preference.

Thus, this paper provides a feasible guideline or solution while balancing the two

conflicting rights.

Argument of Bodily Integrity and Privacy

Every person has the right under common law and the Constitution to refuse medical

treatment. This right of bodily integrity belongs equally to persons who are competent

and to persons who are not. Infact, in cases of incompetency, it becomes the duty of the

State to protect such right of the individual because he himself cannot claim that

protection. The same logic also applies to a pregnant woman who fears some traumatic

bereavement post operation. To protect that right against intrusion, a court must

determine the patient’s wishes by any means available and must abide by those wishes

unless there are truly extraordinary or compelling reasons to override them. Courts do not

compel one person to permit a significant intrusion upon his or her bodily integrity. This

right is based simply on the fact that if the law compels a person to submit to an intrusion

of his body, it would change every concept and principle upon which the society is

founded. To do so would defeat the sanctity of the individual and would impose a rule

which would know no limits. In India, the Supreme Court has now for long upheld the

right to privacy of an individual. Such a right of privacy stresses the value of personhood

and it protects against the totalitarian abuse of government power. This concept of

personhood embodied in the right to privacy can be used to affirm the role of will and

creativity in a woman’s construction of her own identity.

In United States also, this right has been recognized in Cleveland Board of Education v.

La Fleur and in Griswold v. Connecticut , wherein Douglas, J., observed that:

1. In addition to the rights explicitly protected by constitution, there are implicit

constitutional rights.

2. One of those implicit rights is the right to privacy.

Thus, we can safely conclude that right to refuse medical treatment is within right to

privacy, well recognized as a fundamental right by the constitution.

Right per se of the Foetus

In A.C, Re , it was held by the court that the state has an important and legitimate interest

in protecting the potentiality of human life, when the foetus has become viable. It had

also been acknowledged earlier in Roe v. Wade that State’s interest in potential human

life becomes compelling at a point of viability. This is a situation, which exists when a

woman has carried an unborn child to viability, and when the unborn child reaches this

stage the child becomes a party whose interest must be considered. A similar approach

has been adopted by the courts in Fowler v. Woodward and more recently in Whitner v.

South Carolina . In all these cases it was opined that ‘viable foetuses’ are ‘persons’ in the

eyes of law, certain legal rights and privileges and exclusion of viable foetus from status

of person would be an “unsound, illogical and unjust”. It was unanimously held that a

foetus having reached that period of prenatal maturity where it is capable of independent

life apart from its mother is a person.

After the perusal of the above-mentioned cases, it would be safe to conclude that a foetus

has the legal status of a fully born person in the eyes of law. And therefore state’s interest

in protecting the life and health of the viable foetus is not merely legitimate but

compelling.
In cases, where the woman is pregnant and she cannot have normal vaginal delivery , the

only option left to the doctors after detailed medical prognosis is the caesarean section. If

the woman consents to the operation, there is no problem but if she refuses and her

refusal may prove fatal to the foetus, then in such a case the right to life of the valid and

recognized legal person would be infringed. This is based upon a simple logic that the

foetus is a ‘person’ in eyes of law and as such it carries with it all rights vested in a

person, including right to life. And if such a right is infringed, the court through ‘court-

ordered caesarean section’, could well enforce it.

Competence and consent of the mother

It is a general societal tendency to privilege and reify medical opinion. It means that

whatever opinion a doctor gives, it will be the ‘final word’ for the patients, atleast in the

present scenario in India, contrary to the belief that a ‘woman knows her body better’. It

is because of this psychological thinking prevalent in the society that when a woman

rejects the medical advice tendered to her, the possibility that she might be right and her

doctors wrong is unlikely to be raised. Thus, as a mother-to-be, she is seen to be

jeopardising not only herself but also her unborn child. As such, her sanity, creditability

and competence to decide about her own body comes into question and thereby

hampering the role of consent of the mother in allowing or disallowing the medical

authorities to operate upon her. The reasoning applied in such situations is simple, the

implicit societal expectations that mothers must, if they are mentally normal, love their

children, nurture and protect them . The expectant mother has placed herself in a special

class of persons who are bringing another person into existence. Thus when a person who

has undertaken such a great responsibility, refuses and rejects the medical prognosis, her
competence to consent definitely comes under close scrutiny. This competence to consent

plays an important part in situations where the court has to decide about ordering the

caesarean section and the pregnant woman has refused to allow medical treatment upon

her body, claiming bodily integrity and autonomy. The courts can discredit any such

consent before making an order for caesarean section.

Right of Mother v. Right of Foetus: The Conflict

As mentioned above, in those medical cases where normal vaginal delivery could not

take place and a caesarean section is a must in order to save the life of the unborn child,

and if the woman refuses to give consent for the operation, then it is pertinently left to the

courts to decide whether to preserve and protect the right to privacy of the mother or to

give primacy and protection to the right of life of the foetus. This conflict has been

vexing the minds of the judges for long and they have generally relied upon the medical

jurisprudence to ensure minimal harm to both the entities.

In A.C, Re , Judge James A. Belson, in his dissenting opinion pointed out very aptly that

“in those cases in which the viable unborn child’s interest in living and the State’s

parallel interest in protecting human life comes into conflict with the mother’s decision to

forgo a procedure such as a caesarean section, a balance should be struck in which the

unborn child’s and state’s interest are entitled to substantial weight.” The court further

pointed out that the ‘balancing test’ of the probabilities should be applied in instances in

which woman became pregnant and carry an unborn child to the point of viability. The

point, which I am driving at is that it must have been the perceived needs of the foetus

that underlay the impetus to seek court action and the fact that mother’s decision was

likely to impinge upon the child she carried. When we come to the present issue it has to
be borne in mind that the balancing act required to be struck by the Courts prerequisites

that any one interest has to be sacrificed. Here what matters most for the courts is to

consider the informed consent made by the patient about the course of her medical

treatment. If the woman, competent enough, makes such a decision in the affirmative,

then there is no problem. But if the decision of the woman is in the negative, the court has

to decide upon her competence to consent, and if it draws some adverse conclusions, then

it can justifiably make a substituted judgement. Here it needs to be emphasised that it

would be an extraordinary case indeed in which a court might ever be justified in

overriding the patient’s wishes and authorizing a major surgical procedure such as a

caesarean section.

This balancing analysis has to be done keeping in mind many considerations since both

the rights are of constitutional magnitude. Here what the courts should aim is that no right

is denied unjustifiably. The proper test in such a situation is that the courts must keep in

mind the ‘utmost compelling interest’, which they want to preserve.

As a fundamental liberty the right to privacy could not be legitimately infringed upon by

the state, unless such infringement was necessary to serve some compelling state purpose

or interest. To be compelling, the state interest had to be of the highest importance and

even then a law restricting a fundamental liberty had to be necessary in the sense that no

alternative less intrusive means of serving the compelling interest is available.

While applying this principle to the situation where a woman has refused the medical

prognosis report and foetus has become viable, and the report also suggests

incontrovertibly that if the caesarean section is performed no harm would be caused to

the foetus or the mother; the court must order the caesarean section because here the
compelling state interest, after balancing, tilts in favour of preserving the right to life of

unborn child.

Though questions may be raised that right to privacy has been violated, but if we follow

Dworkin’s concept of privacy wherein he believes that any rule of legal jurisprudence

must be interpreted purposively and not construed as collection of norms, then such

violation seems justified. He argues that if a broader privacy principle fits the explicit

legal rules but correct moral judgment requires narrow principle, then that should form

part of law. Lon Fuller also joins his argument by saying that interpretation of rules

purposively would promote good of society- something that morality commends us to-

otherwise literalist application may exclude the justifiability of the rule itself. Thus if the

medical report suggests that both mother and child would be healthy post caesarean, then

in pith and substance right to privacy is not violated as the mother is restored to same

healthy position.

But where the report suggests that the life of the woman may itself be endangered, then

the court must abstain from ordering a caesarean section. The logic here lies in the fact

that in present situation, the balancing analysis tilts in favour of preserving the right to

life of mother itself and thereby the right to privacy, as the compelling interest of the state

shifts. The argument goes, “can you kill a person for the benefit of foetus, which under

the law is one level away from what we consider a physical person? There is no ‘good

samaritan’ requirement under the law that forces a woman to sacrifice her life for that of

her foetus”.

The point to be considered here is that courts have to rely upon the medical opinion

tendered upon the viability of the caesarean section. It is understandable that the courts
tend to treat the medical ‘facts’ with which they are presented as in controvertible, as they

do not have medical expertise to challenge them. In most cases caesarean sections have

been judicially sanctioned on the basis that operation was the bets available option in the

interest of the patient. This aspect of ‘best interest’ as determined by courts is, here,

presumed to be based on the ‘notion of the infallibility of the medical opinion’.

How section 312 of IPC read with the Medical termination of Pregnancy Act, 1971

infringe the right to life of the mother

Section 312 of the Indian Penal Code read with the Medical termination of Pregnancy

act, 1971 where all the restrictions imposed therein, including the time limit of 20 weeks,

other than the ones to ensure good medical conditions, infringe the right to abortion and

the right to health, which emanate from right to life as guaranteed by Article 21 of the

Constitution. Any law forbidding an abortion under good medical conditions is immoral

and in addition unconstitutional, for it violates her right to control her property - her body

as wells her life, liberty and happiness.

a) Impugned provisions inhibit the right to abortion which a species of right to life.

Right to abortion is a species of right to privacy, which is again proclaimed a continuance

of the right to life under Article 21. In India, the courts have been silent on any direct

declaration of the right to abortion. But, in the case of Kharak Singh Vs. State of U.P. and

others , the Supreme Court has certainly recognized that a person has complete rights of

control over his body organs and his ‘person’ under Article 21. It can also said to be
including the complete right of a woman over her reproductive organs. In the United

States of America, the Supreme Court upheld the right to privacy and ended the ban on

birth control back in 1965, in the case of Griswold v. Connecticut. Eight years later, the

Supreme Court ruled the right to privacy included abortions in the landmark case of Roe

v. Wade. In 1976, Planned Parenthood of Central Missouri v. Danforth , ruled that

requiring consent by the husband and the consent from a parent if a person was under 18

was unconstitutional. This case supported a woman's control over her own body and

reproductive system. William Brennan, J. stated:

"If the right to privacy means anything, it is the right of the individual, married or single,

to be free from unwanted governmental intrusion into matters so fundamentally affecting

a person as the decision to bear or beget a child."

Abortion deals with one's private life and should have nothing to do with the government.

Although there are some restrictions on abortion, due to the states' rights, it is still

ultimately the woman's choice. It is not a requirement for some states to fund for

abortions, therefore, especially in these states it should be the woman's choice. Abortion

is an issue of women, and so it should be the woman's right to choose. She has the free

will to consider others views and opinions such as that of the father, but it is her ultimate

decision which should be guaranteed by the law. It is one of the most controversial issues

in the world today. Everyone has their own individual opinion. A woman's body is hers

and hers alone. Nobody has the right to make her do something that she does not want to.

A woman’s right to terminate a pregnancy emanates from her right to make decisions

regarding her own body and reproductive capacity. Textual support for this right is found

in a number of human rights instruments, which contain provisions that ensure autonomy
in decision-making about intimate matters. Such provisions include protections of the

right to privacy, the right to decide freely and responsibly the number and spacing of

one's children, and the right to physical integrity.

Freedom from interference in one's privacy and family life is protected by Article 12 of

the Universal Declaration of Human Rights, Article 17 of the Civil and Political Rights

Covenant, Article 11 of the American Convention, and Article 8(1) of the European

Convention. The European Commission of Human Rights has propounded in its

judgments, like that in cases of Bruggemann and Scheuten v. Federal Republic of

Germany and Paton v. United Kingdom ; decisions one makes about one's body,

particularly one's reproductive capacity, lie squarely in the domain of private decision-

making. The right to determine the number and spacing of one's children relates to the

right to privacy, but also suggests a government duty to facilitate decision-making in

matters of family planning. In 1968, the Final Act of the International Conference on

Human Rights stated that:

"Parents have a basic human right to determine freely and responsibly the number and

spacing of their children and a right to adequate education and information to do so."

Another point of moot in the jurisprudence surrounding the right to abortion is that

whether the foetus has the right be born and if it can supersede the right to abortion. In de

Martell v. Merton and Sutton HA , it was held by the English court that:

"The human being does not exist as a legal person until after birth. The foetus enjoys no

independent legal personality . . . An unborn child lacks the status to be the subject of a

legal duty. If injury is done to an unborn child, no duty is broken. If injury is negligently
caused to a newly born babe, liability in negligence arises . . . In law and logic no damage

can have been caused to the plaintiff before the plaintiff existed".

The view also garners support from Sir George Baker’s observation in Paton v. BPAS

where he said,

“a foetus cannot have any rights of its own at least until it is born and has a separate

existence from the mother”.

In Re F (In Utero) when an attempt was made to make a foetus a ward of the court to

guard its health, the Court of Appeal held that an unborn child lacks legal personality. In

C v. S the court said the claim of a child crystallizes ‘on the birth, but not before, the

child attains the status of a legal persona’. In Canada, the Ontario High Cour held in the

case of Dehler v Ottawa Civic Hospital that :

“The law does not regard an unborn child as an independent legal entity prior to birth…A

foetus, whatever its stage of development, is recognized as a person in the full sense only

after birth…The law has set birth as the line of demarcation at which personhood is

realized, at which full and independent legal rights attach, and until a child en ventre

mere sees the light of the day it does not have the rights of those already born”.This was

affirmed by the Supreme Court of Canada in the case of Tremblay v Daigle. This view

has been also accepted in Australia in the cases of Attorney-General (Qld) (Ex el Kerr) v

T and In the Marriage of F and F .In the case of Vo v France, the European Court of

Human Rights held that Article 2 of the European Convention of Human Rights (which

provides for right of everyone to have their life protected) did not confer a right to life

that extended to a foetus. Assuming arguendo, even if it can be said that the foetus has

got certain rights, various courts have upheld the right of abortion over the right of the
foetus to be born. Thus, the right to abortion can’t be subrogated to the right of the foetus

to be born, if at all it can be said to exist.

b) The impugned provisions are an infringement on the right to Health

Right to health has been recognized by the Supreme Court in various cases as being

protected under Article 21. It is also the fundamental duty of the state to improve public

health under Article 47 of the Constitution.The right to health is recognized in Article

12(1) of the International Covenant on Economic, Social and Cultural Rights (Economic,

Social and Cultural Rights Covenant), which requires states to "recognize the right of

everyone to the enjoyment of the highest attainable standard of physical and mental

health.” Article 12(1) of the Convention on the Elimination of All Forms of

Discrimination Against Women (Women’s Convention) further requires governments to

“take all appropriate measures to eliminate discrimination against women in the field of

health care . . . .” It is widely acknowledged that in countries in which abortion is legally

restricted, women seek abortions clandestinely, under conditions that are medically

unsafe. Because unsafe abortion is closely associated with high rates of maternal

mortality, laws that force women to resort to unsafe procedures infringe upon women’s

right to life.

Where unsafe abortion does not result in death, it can have devastating effects on

women’s health. The health effects of unsafe abortion were addressed at two recent

United Nations conferences, the International Conference on Population and

Development (ICPD) (Cairo, 1994) and the Fourth World Conference on Women

(FWCW) (Beijing, 1995). In the objects and reasons of the MTPA, the legislature

confessed that provisions in the IPC concerning abortion were observed in the breach in a
very large number of cases all over the country. The health services had expanded and

hospitals were availed of to the fullest extent by all classes of society, doctors had often

been confronted with gravely ill or dying pregnant women whose pregnant uterus had

been tampered with a view to causing an abortion and consequently suffered very

severely.

But, the impugned provisions fail to satisfy this very object for which the MTPA was

enacted. Every year 6.7 million abortions take place in India but the sad part is that 5.7

millions are illegal.

How the said provisions infringe the right of the disabled child to live with dignity ?

It is well settled that the constitution provides for the right to live with dignity. This right

would be severely hampered if the state obliges the birth of a person for whom his very

existence is a bane rather than a boon. Eugenic grounds of abortions have been

recognized by various courts and governments. The European Court of Human Rights

has even granted compensation to the parents if the doctor is negligent in detecting patent

deformities in the foetus and the child is born with disabilities and deformities.

In the Objects and reasons of the MTPA, the legislature has recognized eugenic grounds

as one of the grounds of termination of pregnancy. But again, the impugned provisions

fail to satisfy the same by restricting the time limit to 20 weeks. Further, the legislature

has not prohibited use of diagnostic techniques to discover foetal disabilities. Scientific

reports have suggested that some deformities in the foetus can be only detected in the

very late stage of pregnancy and thus abortions should be allowed even after the 24th

week of pregnancy. The IPC was enacted more than a century ago and the MTPA, in
1971. Since then, medical science and technology have come a long way. Moreover,

what transpires to be the object of the legislature behind the impugned provision setting

the time limit for abortion to be that of 20 weeks is to prevent female feticide as this is

the time period when and where after the sex of the foetus can be successfully and

accurately determined by the pre-natal diagnostic technologies. Hence it is to be given

effect to in the same light and not on the analogy that eugenic grounds for abortion as

provided by the act to be valid grounds of abortion under section 3 of the act also burn on

the same factum of the stipulated time period, as this would absolutely and non-

judiciously defeat the very purpose of legislative efforts such as the pre-natal diagnostic

technologies act and the likes of the same. Moreover as the very object of the pre-natal

diagnostic techniques act, 1994 also called the prohibition of sex selection act, as given in

the statement of objects and reasons is:

“The pre-natal diagnostic techniques like amniocentesis and sonography are useful for

the detection of genetic and chromosomal disorders or congenital malformations or sex

linked disorders”

Hence it is perspicuous that the object of the act is to ban the use of both sex selective

abortions and to regulate such techniques with a view to ensure their scientific use for

which they are intended, and not to ban the very detection of such disabilities and

abnormalities of the foetus, as this would defeat the very purpose of this act.

1. Moreover section 4(2) of the said act states that no pre-natal diagnostic techniques can

be conducted except for the purposes of detection of any of the

1) chromosomal abnormalities
2) genetic metabolic diseases

3) heamoglobinopathies

4) sex-linked genetic diseases

5) congenital anomalies

6) any other abnormalities or diseases as may be specified by the central supervisory

board.

Thus the enactment permits such tests if they are necessary to avoid abnormal child from

coming into existence. The MTPA as well as the PNDTA are central acts and if by one

statute certain rights are conferred upon a prospective mother, the same cannot be denied

to a prospective mother by another statute emanating from the same source and the same

was observed by the Hon’ble Supreme court in State of Tamil Nadu and ors. V. Ananthi

Ammal & ors.

***

Subash Chandra Singh, "Right to Abortion : A New Agenda", All India Reporter

(Journal), 1997,p. 129

AIR 1963 SC 1295, pg. 345

381 U.S. 470 (1965)

410 U.S. 113

428 U.S. 52 (1976)

Government in America. by Richard J. Hardy. copyright 1994. page 189. Taking Sides on

Clashing Views of Controversial Bioethical Issues. by Carol Levine. Volume 3. copyright

1991. pages: 4-8. The American Heritage History of the Bill of Rights - The Ninth

Amendment. by Phillip A. Klinkner. copyright 1991. pages: 31, 56, 75-78, 80-87, 110,
116.

Roe v. Wade 410 U.S. 113; Planned Parenthood v. Casey, 505 U.S. 833 (1992).

(Application No. 6959/75), European Commission of Human Rights, July 12, 1977, 3

EHRR 244 (1981)

(Application No. 8416/78) European Commission of Human Rights, May 13, 1980, para.

27, 3 EHRR 408 (1981).

International Instruments Relating Right To Abortion

Article 1 of the American Declaration of Rights and Duties of Man and the Inter

American Commission of Human Rights say that abortion is legalized until the end of

Firat trimester Right to life is protected from the moment of its conception by Articles

6(1) of the ICCPR, Article 2 of the European Convention of Human Rights and Article 4

of the African Charter of Human Human and People's right. But they are silent on the

issue of when does life begin. But the interpretations have forced us to believe that the

child is not to be protected from the time of its inception. The right to life of the fetus has

to be balanced with the rights of the mother.

International courts and tribunals have not addressed the difficult philosophical issue of

when life begins, but have focused on the meaning of the language used in the relevant

treaties. They have generally held that the references to every human being or everyone

or every person do not include an unborn foetus.

The right of a woman to her private life has been the basis on which a number of

international bodies have upheld the right of a woman to have an abortion. The right to
freedom of expression and access to information has been used to argue for the right of

women to receive information about abortion options. The right to access abortion may

also be based on the right of a woman to decide freely and responsibly on the number and

spacing of her children.

In a January 2006 CBS News poll in US, which asked, "What is your personal feeling

about abortion", 27% said that abortion should be "permitted in all cases," 15% that it

should be "permitted, but subject to greater restrictions than it is now," 33% said that it

should be "permitted only in cases such as rape, incest or to save the woman's life," 17%

said that it should "only be permitted to save the woman's life," and 5% said that it should

"never" be permitted. [71] An April 2006 Harris poll on Roe v. Wade , asked, "Do you

favor or oppose the part of Roe v. Wade that made abortions up to three months of

pregnancy legal", to which 49% of respondents indicated favor.

The Historic Decision Of:

Roe Vs. Wades (1973)

Roe v. Wade became one of the most politically significant Supreme Court decisions in

history, reshaping national politics, dividing the nation into "pro-choice" and "pro-life"

camps, and inspiring grassroots activism. This is a landmark United States Supreme

Court decision establishing that most laws against abortion violate a constitutional right

to privacy, thus overturning all state laws outlawing or restricting abortion that were

inconsistent with the decision. Jone Roe, the plaintiff wanted to terminate her pregnancy

because she contended that it was a result of rape. Relying on the current state of medical

knowledge, the decision established a system of trimesters that attempted to balance the

state's legitimate interests with the individual's constitutional rights. The Court ruled that
the state cannot restrict a woman's right to an abortion during the first trimester, the state

can regulate the abortion procedure during the second trimester "in ways that are

reasonably related to maternal health," and in the third trimester, demarcating the

viability of the fetus, a state can choose to restrict or even to proscribe abortion as it sees

fit.

In response to Roe v. Wade, several states enacted laws limiting abortion, including laws

requiring parental consent for minors to obtain abortions, parental notification laws,

spousal consent laws, spousal notification laws, laws requiring abortions to be performed

in hospitals but not clinics, laws barring state funding for abortions, laws banning most

very late term abortions. The Supreme Court struck down several state restrictions on

abortions in a long series of cases stretching from the mid-1970s to the late 1980s.

In the Supreme Court Of Canada, interpreting Article 7 of the Canadian Charter which

guarantees an individual's right to life, liberty and freedom and security of a person. In

the leading case of Morgentalor Smoling and Scott vs. R (1988) 44 DLR (4th ) 385, the

Court focused on the bodily security of the pregnant women. The Criminal Code of the

country required a pregnant woman who wanted an abortion to submit an application to a

therapeutic committee, which resulted in delays. The Supreme Court found that this

procedure infringed the guarantee of security of a person. This subjected the pregnant

woman to psychological stress.

Also the Abortion Act,1967 of the UK in its Article 2 does not confer an absolute right to

life to the unborn. It was held in 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. The same was upheld in H Vs. Norway.( (1992) 73 DR

155)

Also, it is was also held in 1992 by the Supreme Court that a women has the same

exclusive right to abortion as to any to any other medical treatment. The prospective

fathers have no right to be consulted for the same.

The Indian Perspective

Indian law allows abortion, if the continuance of pregnancy would involve a risk to the

life of the pregnant woman or grave injury to her physical or mental health.

Abortion was being practised earlier by many. Because it was illegal, it was practised in a

clandestine manner. The passing of the Act made medical termination of pregnancy legal,

with certain conditions for safeguarding the health of the mother.

Abortion is severely condemned in Vedic, Upanishadic, the laterpuranic(old) and smriti

literature.

Paragraph 3 of the Code of

Ethics of the Medical Council of India says:

I will maintain the utmost respect for human life from the time of conception.

The Supreme Court has said that the right to privacy is implicit in Article 21 of the

Constitution and a right to abortion can be read from this right.

The Medical Termination of Pregnancy Bill was passed by both the Houses of the

Parliament and received the assent of the President of India on 10th August, 1971. It

came on the Statute Book as the "The MTP Act, 1971". This law 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.

Section 3 of the said Act, says that pregnancy can be terminated :

(1) As a health measure when there is danger to the life or risk to physical or mental

health of the women;

(2) On humanitarian grounds - such as when pregnancy arises from a sex crime like rape

or intercourse with a lunatic woman, etc. and

(3) Eugenic grounds - where there is a substantial risk that the child, if born, would suffer

from deformities and diseases.

A woman's right in this respect is doubtful because her right is dependant on certain

conditions: proof of risk to her life or grave injury to her physical or mental health,

substantial risk of physical or mental abnormalities to the child if born and a situation

where abortion could only save her life, all to be arrived at by the medical practitioners.

Can a woman request a medical practitioner to perform an abortion on the ground that

she does not want a child at that time? Where the liberty of the woman is fully dependant

on certain other factors, such are quest cannot be said to be just and reasonable. The

M.T.P. Act also does not classify the pregnancy period so that the woman's interests and

the state's interests could be given predominance in one's own spheres.

It is submitted that a decision as to abortion may be entirely left with woman provided

she is sane and attained majority. Only in cases where an abortion may affect her life, her

freedom may be curtailed. All other restrictions on the right to abortion are unwelcome.

True, a woman's decision as to abortion may depend upon her physical and mental health
or the potential threat to the health of the child. Apart from these reasons, there are also

various important factors. She or the family may not be financially sound to welcome an

addition. It may be a time when she wants to change her profession, which requires free

time and hard work. Her relationship with the husband may virtually be on the verge of

collapse and she may prefer not to have a child from him, for it may possibly affect a

future marriage. All these factors are quite relevant and the Indian statute on abortion

does not pay any respect to them. The law thus is unreasonable and could well be found

to be violative of the principles of equality provided under Article 14 of the Constitution.

Is it desirable to pay compensation to woman for all her physical and mental

inconveniences and liabilities, which arises in that context. Finally it may be noted that

the M.T.P. Act does not protect the unborn child. Any indirect protection it gains under

the Act is only a by-product resulting from the protection of the woman. The rights

provided as well as the restrictions imposed under the statute show that the very purpose

of the state is to protect a living woman from dangers which may arise during an abortion

process. It is the protection to the mother that protects the unborn.

Conclusion

In this area of law and medical jurisprudence, the tug of war between ‘privacy’ and ‘life’

is an unending conflict and much is left to the judicial approach. Though the medical

opinion’s infallibility could always be challenged, the judges have almost accepted

doctor’s definition of essentiality and the need to act quickly . This paper aims at

resolving the conflict of rights, through reliance upon the medical jurisprudence because

it is necessary to maintain the right of medical professionals to intervene on behalf of

foetus when a woman is unable to understand the importance of the decision. But as

always believed, no problem in legal jurisprudence has straight solutions or to use Kant’s

expression, “ From such crooked wood as man is made, nothing perfectly straight can be

built” . Similarly this is also an attempt to provide a plausible solution only.

The great Tamil Saint Thiruvalluvar said :-

"The touch of children is the delight of the body; the delight of the ear is the hearing of

their speech".

A mother has got a natural duty to provide the maximum best possible to her offspring.

However, situations may arise where she indulges in activities, which injuriously affect

the foetus. It may be due to ignorance, carelessness or acts done willfully. Abortion is an

issue to be left to the decision of the mother. However, taking viability of a legal

standard, necessary protection should be provided to the unborn. It is also beneficial to

the mother, where the state or voluntary organizations are ready to take care of the

unborn. There is no meaning in conferring a right to the mother to destroy the foetus. Her

right is limited to have a termination of pregnancy. It is also said that delivering 20

million babies annually would be a greater strain on the nation?s medical services and

economic resources than, say, performing one to five million abortions a year.

The law has to take care of the liberty of the mother as well as the unborn. As a

hospitable community we should seek ways of providing support for lonely and

frightened mothers, and for lonely and abandoned babies. We need to offer women with

unplanned pregnancies as much love and support as they require and to assist them in

finding compassionate alternatives to abortion.