LAWS FOR ABORTION AND MISCARRIAGE
There are various laws which govern Abortion and miscarriage of unborn child in India. The Government of India has enacted Medical Termination of Pregnancy Act, 1971 if pregnancy is under 20 weeks. However, it is subject to several conditions and ability to get an abortion will depend on the opinion of the doctor. The law requires the doctor to assess if these conditions are fulfilled – only then are one is legally allowed to perform an abortion. Conducting an abortion without fulfilling the conditions is considered a crime. The miscarriage of unborn child is governed under section 312 to 315 of Indian Penal Code and also some part of this is governed by Pre-Conception & Pre-Natal Diagnostic Techniques Act, 1994.
Under the section 3 of The Medical Termination of Pregnancy Act 1971, the doctor can perform an abortion only under the following conditions:
ð if the pregnancy would not be harmful to one’s life or physical or mental health. The doctor also need to look at your future to figure out the effects of the pregnancy.
ð if the child could suffer from physical or mental abnormalities which would leave him or her seriously handicapped.
The Act of 1971 provides that if the pregnancy has not exceeded 12 weeks, one doctor needs to be satisfied that the conditions have been fulfilled but if the pregnancy has exceeded 12 weeks and is below 20 weeks (first trimester), two doctors need to be satisfied that the conditions have been fulfilled.
In some appropriate conditions the gestation period does not matter if doctor feels that an immediate abortion must be conducted to save one’s life. The doctor who determines if it is necessary to perform an abortion and performs it needs to be a ‘registered medical practitioner’ under the law.
It is a crime to get an abortion because one does not want a girl child. If you get an abortion after one comes to know the sex of the foetus, one can be punished with jail time of up to three or seven years depending on the stage of pregnancy.
It is a crime to conduct any kind of test or procedure like an ultrasound to try and make sure the foetus is of a particular sex or to check the sex of your foetus under another law called the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. Any procedure or technique performed on a man or woman for the purpose of sex-selection is illegal. Any procedure or technique performed on a woman for the purpose of sex-determination is illegal.
The punishment for getting an illegal abortion is jail time of up to 3 years and/or fine for an abortion of under 4 to 5-month pregnancy. Both doctor and the one who get abortion done are considered to have committed a crime unless it was done in good faith.
For an abortion of over 5-month pregnancy when one can sense the movement of the foetus, the punishment can be with jail time of up to seven years and fine. This is known as quickening and takes place between 17 and 20 weeks.
Abortion without your consent - If a woman is forced to have an abortion or performs one without the woman agreeing to it, the punishment is jail time of up to 10 years and fine under section 313 IPC which reads as under:-
313. Causing miscarriage without woman’s consent.—Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
If the patient dies because of a failed abortion or an abortion carried out by an unskilled person, the doctor who conducted the operation can be punished with jail time of up to 10 years and fine. If the abortion was conducted without the patient’s permission, the punishment is jail for life.
Intentionally causing the death of a foetus can also be prosecuted under other provisions of the Indian Penal Code, 1860 under which the punishment can extend up to 10 years.
The doctor has a duty to get consent of the woman to perform the abortion. If the woman is below 18 years of age or a person with mental illnesses, the doctors have a duty to get guardian’s permission as well. If a doctor performs an abortion without consent of the woman doctor could be punished with a jail term extending up to 10 years and fine. inspection.
Hon’ble Bombay High Court while deciding the petition on the issue titled as Sudha Sandeep Devgirkr vs Union Of India decided on 3 April, 2019 held as under:-
Accordingly, we dispose of these petitions, with the following orders:
(a) We hold that a registered medical practitioner may medically terminate pregnancy which has exceeded 20 weeks, without permission from the High Court, only where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman, which means that the registered medical practitioner is of the opinion that unless pregnancy is terminated immediately, the pregnant woman might succumb (die);
(b) We hold that a registered medical practitioner is not entitled to terminate pregnancy exceeding 20 weeks, where such termination is not immediately necessary to save the life of the pregnant woman i.e. there is no immediate danger of the pregnant woman succumbing, in case the pregnancy is not terminated;
(c) We hold that where a pregnant woman, the length of whose pregnancy has exceeded 20 weeks seeks to terminate such pregnancy on the ground that its continuance would involve grave injury to her physical or mental health or where 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, such pregnant woman will have to seek permission from the High Court and unless such permission is granted, no registered medical practitioner can terminate such pregnancy, inter alia on the basis of the interpretation of the provisions in section 5 of the MTP Act;
(d) We hold that this Court can, in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India, permit medical termination of pregnancies, the length of which exceeds twenty weeks, in contingencies set out in clauses (i) and (ii) of section 3(2)(b) of the MTP Act, subject no doubt by adherence to the procedures and the safeguards indicated in this judgment and order;
(e) We direct the State to constitute and establish, as expeditiously as possible, and in any case within a period of three months from today, Medical Boards as indicated in this judgment and order, in each of the districts, to examine pregnant women and to furnish reports in cases where permission to medically terminate pregnancy whose length exceeds twenty weeks, is sought for by institution of writ petitions in this Court. The Secretary (Health), Government of Maharashtra, to file affidavit of compliance on 1st July 2019, in this Court;
Hon’ble Supreme Court has also been dealing with the issue on various occasions and have in few of the judgments held as under:-
In Murugan Nayakkar vs. Union of India & Ors. W.P. (C) No. 749/2017, Hon’ble Supreme Court allowed the termination of 32-week old pregnancy of a 13-year-old rape victim.
In Alakh Alok Srivastava vs. Union of India W.P. (C) No. 565/2017, where the petitioner was a 10-year-old pregnant rape victim with a 32-week pregnancy as well the Court did not allow termination. The Medical Board in this matter opined that the continuation of the pregnancy was less dangerous for the petitioner than termination at that stage. During the course of the proceedings, the Court asked the Centre to set up of a permanent medical boards in states to expeditiously examine requests for termination of pregnancy post 20 weeks.
In Mrs. X vs. Union of India, the Supreme Court allowed for the termination of a 22-week old pregnancy. This was done after a 7 members Medical Board opined that allowing the pregnancy to continue could endanger the woman’s physical and mental health.
Relevant provision of laws related to the issue:-
INDIAN PENAL CODE
312. Causing miscarriage.—Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Explanation.—A woman who causes herself to miscarry, is within the meaning of this section.
313. Causing miscarriage without woman’s consent.—Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
314. Death caused by act done with intent to cause miscarriage.—Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; If act done without woman’s consent.—And if the act is done without the consent of the woman, shall be punished either with 1[imprisonment for life], or with the punishment above mentioned. Explanation.—It is not essential to this offence that the offender should know that the act is likely to cause death.
315. Act done with intent to prevent child being born alive or to cause it to die after birth.—Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
PRE-CONCEPTION & PRE-NATAL DIAGNOSTIC TECHNIQUES ACT, 1994
22. Prohibition of advertisement relating to pre-natal determination of sex and punishment for contravention.-
1. No person, organization, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or centre having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such centre, laboratory, clinic or at any other place.
2. No person or organization including Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any manner regarding pre-natal determination or preconception selection of sex by any means whatsoever, scientific or otherwise.
3. Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees. Explanation.—For the purposes of this section, “advertisement” includes any notice, circular, label, wrapper or any other document including advertisement through internet or any other media in electronic or print form and also includes any visible representation made by means of any hoarding, wall-painting, signal, light, sound, smoke or gas.
23. Offences and penalties.-
1. Any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act or rules made thereunder shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees.
2. The name of the registered medical practitioner shall be reported by the Appropriate Authority to the State Medical Council concerned for taking necessary action including suspension of the registration if the charges are framed by the court and till the case is disposed of and on conviction for removal of his name from the register of the Council for a period of five years for the first offence and permanently for the subsequent offence.
3. Any person who seeks the aid of a Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or ultrasound clinic or imaging clinic or of a medical geneticist, gynaecologist, sonologist or imaging specialist or registered medical practitioner or any other person for sex selection or for conducting pre- natal diagnostic techniques on any pregnant women for the purposes other than those specified in sub-section (2) of section 4, he shall, be punishable with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine which may extend to one lakh rupees.
4. For the removal of doubts, it is hereby provided, that the provisions of sub-section (3) shall not apply to the woman who was compelled to undergo such diagnostic techniques or such selection.
24. Presumption in the case of conduct of pre-natal diagnostic techniques.- Notwithstanding anything contained in the Indian Evidence Act, 1872, the court shall presume unless the contrary is proved that the pregnant woman was compelled by her husband or any other relative, as the case may be, to undergo pre-natal diagnostic technique for the purposes other than those specified in sub-section (2) of section 4 and such person shall be liable for abetment of offence under sub-section (3) of section 23 and shall be punishable for the offence specified under that section.
25. Penalty for contravention of the provisions of the Act or rules for which no specific punishment is provided.- Whoever contravenes any of the provisions of this Act or any rules made thereunder, for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to one thousand rupees or with both and in the case of continuing contravention with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
26. Offences by companies.-
1. Where any offence, punishable under this Act has been committed by a company, every person who, at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. Act, 1994 & Amendments .
Notwithstanding anything contained in sub-section (1), where any offence punishable under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.—For the purposes of this section,—
(a) “company” means any body corporate and includes a firm or other association of individuals, and
(b) ”director”, in relation to a firm, means a partner in the firm.
27. Offence to be cognizable, non-bailable and non-compoundable.-Every offence under this Act shall be cognizable, non-bailable and non-compoundable.
THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971
7. Power to make regulations.-
(1) The State Government may, by regulations,-
(a) require any such opinion as is referred to in sub-section (2) of Sec. 3 to be certified by a registered medical practitioner or practitioners concerned in such form and at such time as be specified in such regulations, and the preservation or disposal of such certificates;
(b) require any registered medical practitioner, who terminates a pregnancy to give intimation of such termination and such other information relating to the termination as maybe specified in such regulations;
(c) prohibit the disclosure, except to such persons and for such purposes as may be specified in such regulations, of intimations given or information furnished inpursuance of such regulations.
(2) The intimation given an the information furnished in pursuance of regulations made by virtue of C1.(b)of Sub-section(1) of shall be given or furnished, as the case may be, to the Chief Medical Officer of the State.
(3) Any person who wilfully contravenes or wilfully fails to comply with the requirements of any regulation made under sub-section (1) shall be liable to be punished with fine which may extend to one thousand rupees.