Theme: Gender & Reproductive Health

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.

In every hospital, records of the abortion should be maintained in the following ways(( Regulations 4 and 5, Medical Termination of Pregnancy Regulations, 2003.)):

• Doctor’s Opinion: The doctors who perform abortions have a legal duty to record their opinions on why they are going to do or not do the abortion. If they are going ahead with the abortion, within three hours of conducting the abortion, they have to certify it by filling Form 1 of the Medical Termination of Pregnancy Regulations, 2003.
• Consent Form : The consent form to go ahead with the abortion has to be filled by the pregnant woman who is undergoing the abortion. The consent form is given in Form C of the Medical Termination of Pregnancy Rules, 2003.

Admission Registers: An admission register is maintained by the head of the hospital or the owner of the place approved for conducting abortion where the details of the women undergoing abortion are maintained. The Admission Register is a confidential document. These hospital records of abortions are routinely sent to the Chief Medical Officer of the State and the register is not kept open for any inspections keeping in mind the privacy of the woman.

1. Section 314, Indian Penal Code, 1860. [↩]

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