Abortion Laws in India: The Medical Termination of Pregnancy Act
Updated: Jul 21, 2022
Abortion in India is regulated under the MTP Act, known as The Medical Termination of Pregnancy Act 1971, it is an act to provide for the termination of certain pregnancies by registered Medical Practitioners. The act was amended in 2021, bringing in changes for the termination time period limit and other sections.
Is Abortion illegal in India: Terminating a pregnancy without the aid of registered medical practitioner under the guidelines laid by MTP Act is a criminal offence under the IPC Code, 1860. The Medical Termination of Pregnancy Act of 1971 authorises medical doctors with specific specialisation to abort a pregnancy on certain grounds.
Who is Registered Medical Practitioner : Under the Sec 2h of MTP Act, Registered medical practitioner means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956, (102 of 1956), whose name has been entered in a State Medical Register and who has such experience or training in gynaecology and obstetrics as may be prescribed by rules made under this Act.
Eligibility and Process under the The Medical Termination of Pregnancy Act: Under the MTP Amended Act, 2021, A pregnancy may be terminated by one registered medical practitioner, where the length of the pregnancy does not exceed 20 weeks. Under the amended act, a pregnancy may be terminated up to 20 weeks by a married or unmarried woman if the contraceptive method or device fails. An unmarried woman's rights weren't mentioned earlier. If the length of pregnancy exceeds 20 weeks, but not 24 weeks. Under the opinion of two doctors, the termination of pregnancy is undertaken. Women eligible for termination of pregnancy up to 24 weeks, Sec 3B:
Survivors of sexual assault or rape or incest;
change of marital status during the ongoing pregnancy (widowhood and divorce);
women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];
mentally ill women including mental retardation;
the foetal malformation that has a substantial risk of being incompatible with life or if the child is born it may suffer from such physical or or mental abnormalities to be seriously handicapped;
women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.
Protection of privacy of a woman, Sec 5A:
No registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force.
Whoever contravenes the provisions shall be punishable with imprisonment which may extend to one year, or with a fine, or with both.
Abortion for Unmarried women: Currently under the MTP Act, an unmarried women whose pregnancy is under 20 weeks can terminate the pregnancy. But if it is beyond that period she isn't eligible to terminate the pregnancy as in case of Sec 3B where certain cases are mentioned.
In a recent judgement an unmarried women had approached the Supreme Court to abort her pregnancy of 24 weeks, as the Delhi High Court had refused for termination of the pregnancy as it was out of consensual relationship and Section 3B of MTP Act, couldn't be applied in the case. The Supreme Court passed an ad-interim order to allow the unmarried woman to abort her pregnancy of 24-weeks arising, subject to a medical board constituted by the AIIMS Delhi concluding that the foetus can be aborted without risk to the life of the woman.
A bench led by Justices DY Chandrachud observed that the Delhi High Court took an unduly restrictive view of the provisions of the Medical Termination of Pregnancy Rules while declining the woman interim relief. Noting that after 2021 amendment, the Medical Termination of Pregnancy Act uses the word "partner" instead of "husband" in the explanation to Section 3, the Court said that this shows the legislative intent to cover "unmarried woman" under the Act. "Petitioner should not be denied the benefit merely on the ground that she is an unmarried woman", the Court observed in the order.
Reference of the Section from THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021:
Explanation 1.—For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.