Abortion in the Indian context is governed by statutory provisions under the Medical Termination of Pregnancy Act, 1971 and is also a recognised constitutional right as acknowledged by the Supreme Court of India in Justice K.S. Puttuswamy v. Union of India, where it was opined that reproductive rights constitute an inalienable aspect of the right of life and personal liberty as enshrined in Article 21 of the Constitution of India.
Are medical abortions legal?
At the very outset, it is important to understand that medical abortions, i.e., that is those where termination of pregnancy is caused using medication and without surgery is permissible in India. These abortions are induced through pills and are considered to be safe and effective. Pregnant persons can undergo medical abortion till up to 9 weeks of gestation.
This is provided in the Explanation to Rule 5 of the MTP Rules, 2003 which reads as follows:
“In the case of termination of early pregnancy up to 9 weeks using RU-486 with Misoprostol, the same may be prescribed by a Registered Medical Practitioner, as defined under clause (d) of section 2 of the Act and Section 4 of MTP Rules, at his clinic, provided such a Registered Medical Practitioner has access to a place approved under Section 4 of the MTP Act 1971 read with MTP Amendment Act 2002 and Rule 5 of the MTP Rules.”
However, it is necessary that the pregnant persons have a registered medical practitioner’s prescription to buy medical abortion pills. In other words, it is not available as over the counter pills.
Who are permitted to perform abortion services?
The Medical Termination of Pregnancy Act, 1971 recognises that it is only medical practitioners who can perform abortion services in India. The law provides a shelter to medical practitioners if they carry out the procedure as per the conditions laid down in the Act. In essence, medical practitioners cannot be held guilty of an offence in cases wherein pregnancies have been terminated as per the stipulations in The Medical Termination of Pregnancy Act, 1971. As per the Act and the Amendment Rules, 2021, a medical practitioner is one who:
- Has his/her name entered in the State Medical Register
- Who has experience or training in gynaecology and obstetrics
- Possesses a post-graduate degree or diploma in obstetrics and gynaecology
- Has completed six months as house surgeon in obstetrics and gynaecology
- Has one year of experience in obstetrics and gynaecology at any hospital having all required facilities
- Has assister a registered medical practitioner in 25 cases of medical termination of pregnancy. Out of these 25 cases, 5 must have been performed independently.
- Has experience at not hospital for at least three months in obstetrics and gynaecology
- Has independently performed 10 cases of pregnancy termination under the supervision of a registered medical practitioner at a hospital maintained, or established by the government
It is important to understand that the law prohibits auxiliary nurse midwives, trained nurses, traditional birth attendants, AYUSH practitioners, or any other person who is not a registered practitioner from performing abortions. In furtherance to this, if any other such prohibited person is found to be involved in termination of pregnancy, Section 5 places a potential imprisonment term between 2 and 7 years.
Where can abortions be availed?
The law also states that places wherein abortion services may be provided and availed. Section 4 of the Act states that termination of pregnancy shall take place only at:
- A government hospital. This includes primary, secondary and tertiary levels of public healthcare centres
- A place that has been approved under the law by the government
- Outpatient facilities and clinics, which, although not approved as MTP certified site, have an established referral linkage to MTP certified site. However, this requires that such facilities be able to demonstrate and provide a certificate to this effect
What are the gestational period requirements?
The Medical Termination of Pregnancy Act, 1971 also places certain requirements based on gestational period. Based on the gestational period, the Act states the number of medical practitioners who are required to provide their opinion on whether there exists a reason for termination of pregnancy.
|Gestational Period||Requirement for opinion of a medical practitioner|
|Within 20 weeks||Opinion of 1 medical practitioner|
|Exceeded 20 weeks but, within 24 weeks||Opinion of 2 medical practitioners is required|
|Exceeded 24 weeks||Opinion of the Medical Board constituted by the Government is mandatory. The Medical Board would comprise: |
1. A sinologist/radiologist
Therefore, if the pregnancy has exceeded beyond 24 weeks, the person must approach the Medical Board for termination of pregnancy. The Medical Board may either allow or deny the termination of pregnancy. In making this determination, the Board would consider the following factors:
- Safety aspect of the procedure for the woman at that gestation age
- Determining whether foetal malformation has substantial risk of it being compatible with life
- Deliberating if the child is born it may suffer from physical or mental abnormalities that may be deemed to seriously handicap the child
The Medical Board, as per Rule 3A Clause (a) and (b) must examine the woman and her reports, and must provide an opinion to the effect of either rejection or acceptance of the termination request within 3 days of receiving a request from the person. The Medical Board is also duty-bound to ensure that the termination procedure is carried out with all required safety protocol, including appropriate counselling within 5 days of receipt of request for termination being granted.
Is there a need for a court order for abortions?
In this context, it is of utmost importance to understand that pregnant persons do not require a court order or third-party consent for an abortion in India. Prescribing such a requirement would only limit accessibility to abortion. This was explained in the case of X v. State (2019), in the following words, “In all cases, where a victim girl suffers an unwanted pregnancy and where the length of the pregnancy does not exceed 20 weeks, the victim girl need not be referred to the Medical Board and the termination of pregnancy can be done as per the provisions of Section 3 of the Act. The victim girl should not be unnecessarily made to knock the doors of the Court.” Therefore, the only circumstance where a third-party authorisation is required is in reference to those cases that require the approval of the Medical Board.
When can pregnancies exceeding 20 weeks be terminated?
It is important to understand that as per Rule 3B of the MTP (Amendment) Rules, 2021, in cases where pregnancy which has exceeded 20 weeks, termination would be permissible only for certain categories of pregnancies such as:
- Survivors of sexual assault, rape, or incest
- Women with physical disabilities
- Mentally ill women
- Situations where foetal malformation has substantial risk of being incompatible with life
- When there is change in marital status during on-going pregnancy such as widowhood and divorce
- Women with pregnancies in disaster or emergency situations as may be declared by the government
Who are required to consent to abortions?
It is important to understand that in special categories such as pregnancies of minors and those persons who are mentally ill, the written consent of their guardian is a mandatory requirement owing to Section 3(4) (a) of The Medical Termination of Pregnancy Act, 1971. As for mentally ill persons, even if they are of majority, the consent requirement of their guardian would continue to apply. ‘Guardian’ has been granted wide definition under the Act and essentially includes any adult that accompanies the minor or the mentally ill person.
It is only where the concerned person is neither a minor nor a person who is mentally ill, that no third-party consent is required except that of the person undergoing the treatment. This position of law was re-affirmed in the case of Dr. Mangla Dogra v. Anil Kumar Malhotra (2011), wherein it was stated, “Mere consent to conjugal rights does not mean consent to give birth for her husband…No express or implied consent of the husband is required for getting pregnancy terminated under the Act.” In other words, it can be stated that the consent of any other third-party such as the partner, spouse, parent, or any other person is not required by law. In fact, the legislation, through Section 5A of provides an additional layer of legal protection to the person undergoing the treatment by making it a punishable offence for a service provider to reveal the name and other particulars of the woman who has undergone an abortion.
Access to Abortions for Marginalised Persons
Further, in the context of marginalised persons, in the context of trans persons, Section 3 of the Transgender Persons (protection of Rights Act), 2019 makes it a criminal offence to discriminate and deprive a person of healthcare treatment. Additionally, as regards incarcerated persons, they have the same rights to abortion services as all other individuals. This was affirmed in the case of Suo Moto PIL High Court on its own motion v. State of Maharashtra (2018) wherein the court opined that, “If a pregnant prisoner wants to terminate her pregnancy, then provision of section 3(2)(b)(i) or (ii) are applicable. She being a prisoner should not be treated differently than any other pregnant women. We, with all responsibility state that Section 3 of Medical Termination of Pregnancy Act bestows a very precious right to a pregnant woman to say no to motherhood. It is the right of a woman to be a mother so also it is the right of a woman not to be a mother and her wish has to be respected. This right emerges from her human right to live with dignity as a human being in the society and protected as a fundamental right under Article 21 of the Constitution of India with reasonable restrictions as contemplated under the Act.”
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