Theme: Abortion

Abortion is legally permitted only if the term of the pregnancy is not more than 20 weeks. However, a pregnant woman cannot get an abortion if a doctor is not satisfied that she meets the conditions for it. The number of doctors who have to decide whether she can get an abortion depends on the number of weeks of her pregnancy.

Less than 12 weeks

If the length of the pregnancy has not exceeded 12 weeks, i.e. is still in the first trimester, one doctor has to agree to the abortion.

Between 12 weeks and 20 weeks

If the length of the pregnancy has exceeded 12 weeks, but is less than 20 weeks then, at least 2 doctors have to agree to it(( Section 3(2) The Medical Termination Of Pregnancy Act, 1971.)).

However, emergency abortions can be conducted both before and after 20 weeks.

Except in case of emergeny abortions, the law does not state who can take a decision if an abortion is required after 20 weeks. Legally, doctors are not allowed to decide on this. So, the only recourse for a pregnant woman will be to approach the Courts allow the abortion.

There are many cases where a request has been made to the Courts to abort the fetus after 20 weeks, for several reasons such as:

1. The pregnancy is harmful to the health of the woman.
2. The pregnancy would result in abnormalities for the baby.
3. The pregnancy was caused by an act of rape.
4. The abortion could not be done before 20 weeks because of the negligence of medical authorities.

Courts usually refer such cases to a Medical Board or a Medical Panel set up in hospitals, to look into the pregnancy and determine whether the abortion should be conducted, taking into account the health and well-being of both the mother and the fetus. After carefully considering the opinion of the Board or Panel, they decide whether the abortion beyond 20 weeks should be allowed.

The decisions made by Courts are usually on a case-to-case basis. For example, the Kerala High Court¹ dismissed a couple’s plea to abort a 35-week-old fetus. The couple had requested the abortion for medical reasons because the fetus has serious developmental brain anomalies. The Punjab and Haryana High Court(( Kavita and Another v. Post Graduate Institute of Medical Education and Research, through its Director and Others, CWP No. 11394 of 2020. )) has decided to look into the issue of abortion after 20 weeks of pregnancy.

For more information on access to safe abortions, please refer to this government handbook.

1. Akhila Kurian Alias Akhila Ann Baby v. Union of India, WP (C) No. 27842 of 2020. [↩]

Under the law, only a ‘Registered Medical Practitioner’ can perform the abortion procedure. For a doctor to be recognised as a registered medical practitioner, the following conditions must be fulfilled:

• They must possess recognised medical qualifications such as MBBS, MD, MS, etc. (A list of these qualifications can be found in the Schedule of the Indian Medical Council Act, 1956).
• They must be enrolled in the State Medical Register.
• They must have training in gynaecology and obstetrics (OB-GYN)(( Section 2(d), The Medical Termination Of Pregnancy Act, 1971)).

Only in case of emergency abortions, any registered medical practioner, regardless of whether they are an OB-GYN, can conduct the abortion in good faith.

If the abortion is carried out by a person who is not a registered medical practitioner, then such a person can be punished with rigorous jail time between 2 and 7 years(( Section 5(2), The Medical Termination Of Pregnancy Act, 1971)).

It is important to note that ayurvedic, unani or homeopathic doctors, or nurses, cannot legally perform abortions.

Consent of Pregnant Woman

The law states that a pregnant woman’s consent is mandatory for an abortion to be performed(( Section 4(b), The Medical Termination Of Pregnancy Act, 1971.)). The woman can give consent through Form C of the Medical Termination of Pregnancy Rules, 2003. This form is submitted to the registered medical practitioner conducting the abortion.

If anyone forces a pregnant woman to have an abortion or performs one without her consent, the punishment is jail time for up to 10 years and a fine¹

Privacy of Pregnant Woman

A woman seeking an abortion can expect the authorities to protect her privacy.

• If she has approached an authorized hospital or place for an abortion, to protect her privacy, her name will be entered into an Admission Register against a serial number. The hospital authorities cannot enter her name in any hospital case-sheet, operation theatre register, follow-up card or any other document or register other than the Admission Register. The woman can only be referred to by the serial number assigned in the Admission Register.
• The Admission Register is not open to inspection by any person other than the woman and a legal authority such as a Chief Medical Officer, District Health Officer, police etc.

The head of every hospital sends the Chief Medical Officer of the State a monthly statement of abortions done in the hospital(( Explanation 2 to Section 3(2), The Medical Termination Of Pregnancy Act, 1971.)).

1. Section 315, Indian Penal Code, 1860. [↩]

Yes. If a contraceptive device fails to work, and a married woman becomes pregnant as a result, it will be presumed that the pregnancy was unwanted and that the woman’s mental health will be affected if the pregnancy continues. Therefore, before 20 weeks of the pregnancy, the doctor can perform the abortion if the woman desires but only if the doctor believes that it should be done.

This presumption does not apply to unmarried women who have conceived due to failure of contraceptives. However, this does not mean that unmarried women cannot get an abortion. If a doctor believes that their mental health will be affected by the continuation of the pregnancy then the abortion will be legally allowed.

If there is a need to conduct an immediate abortion to save a pregnant woman’s life, no matter how far along the pregnancy is, the doctor can conduct the abortion. This emergency abortion should be done by the doctor without any intention to cause harm and in good faith((

Section 5(1), The Medical Termination Of Pregnancy Act, 1971.))

Any registered medical practitioner can conduct the abortion, even if they do not have the required OB-GYN qualifications under the law. This has to be done in good faith to save the life of the woman or the fetus.

A case will not be filed against such doctors who perform emergency abortions in good faith((

Section 8, The Medical Termination Of Pregnancy Act, 1971.))

For example, if a woman 22 weeks pregnant was in a car crash, then a doctor can conduct an immediate abortion to save the woman’s life. The doctor will not be prosecuted for conducting an abortion after 20 weeks since it was done in good faith to save the woman’s life.

If a woman suffering from mental illness wants to undergo an abortion, the law requires that the consent of her guardian (could be a parent or a spouse) should be taken(( Section 3(4)(a), The Medical Termination Of Pregnancy Act, 1971)). This is not the same for a mentally retarded woman(( Section 2(b), The Medical Termination Of Pregnancy Act, 1971.)). In cases of mental retardation a pregnant woman’s consent must be taken and no other person, including a guardian, can take the decision of abortion on the woman’s behalf.

 

The law provides that a pregnant woman may get an abortion if her pregnancy is a result of rape. The doctor has a legal duty to assume in such cases that the pregnancy gravely affects the woman’s mental health. However, it has to be noted that even if the pregnancy is a result of rape, an abortion can be performed legally only if the fetus is under 20 weeks and if the doctor believes it will not affect the woman’s or child’s health. While it is possible to go to Court to request for an abortion after 20 weeks, these abortions depend upon the discretion of the Court.

Abortions can only be conducted at any of the following places approved by the government:

• Hospitals, either established or maintained by the government.
• Such places (private, public or other) that have been approved by the government or by a District Level Committee set up by this law(( Section 4, The Medical Termination Of Pregnancy Act, 1971.)).

If the abortion is carried out in a place that is not authorised by the government, then the doctor performing such abortion along with the owner or in-charge of that hospital can be punished with rigorous jail time between 2 and 7 years.

To ensure safe and legal abortions, it is necessary to confirm with the doctor and the hospital/place whether they have the necessary permits.