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Indian Journal of Community Medicine: Official Publication of Indian Association of Preventive & Social Medicine logoLink to Indian Journal of Community Medicine: Official Publication of Indian Association of Preventive & Social Medicine
. 2023 Jul 14;48(4):510–513. doi: 10.4103/ijcm.ijcm_540_22

Medical Termination of Pregnancy Act of India: Treading the Path between Practical and Ethical Reproductive Justice

Satvik N Pai 1,, Krithi S Chandra 1
PMCID: PMC10470576  PMID: 37662131

Abstract

One of the most important facets of reproductive freedom and justice is the right to abortion. For centuries, the debate on legalisation and regulation of abortion has caused ethical dilemmas with proponents for both sides of the argument. India, a developing nation, with a wide spectrum of cultures, traditions, socio-economic statuses and religious beliefs, would be expected to be grappling with this problem. However, India since the 1970s made a clear stance on the matter of abortion. Respecting the right to personal liberty, reproductive freedom of women and upholding the importance of women’s health, Medical Termination Pregnancy (MTP) has been legal in India since 1971. We look at the laws governing MTP in India, the practical and ethical considerations, the recent amendments in these laws and the road ahead.

Keywords: Abortion, India, MTP Act, Reproductive freedom, Reproductive justice

INTRODUCTION

One of the most important facets of reproductive freedom and justice is the right to abortion. For centuries, the debate on legalisation and regulation of abortion has caused ethical dilemmas with proponents for both sides of the argument. There are two contrasting ideologies, with ardent supporters of pro-life and pro-choice often clashing in political, medical and legislative forums.[1] This has been a contentious issue that several developed nations have struggled to resolve till date.[2] India, a developing nation, with a wide spectrum of cultures, traditions, socio-economic statuses, and religious beliefs, would be expected to be grappling with this problem. Considering the underdeveloped infrastructure, inadequate access to health care, and neglect of women’s health, abortion even presented several logistical concerns. However, India since the 1970s made a clear stance on the matter of abortion. Respecting the right to personal liberty, reproductive freedom of women, and upholding the importance of women’s health, Medical Termination Pregnancy (MTP) has been legal in India since 1971. Since then, several other ethical and legal issues relating to MTP have risen. The legislation as well recognised the evolving times and technological advances in medicine, and accordingly amended the laws in relation to MTP. We look at the laws governing abortion in India, the practical and ethical considerations, the recent amendments in these laws and the road ahead.

THE LAW

The Indian Penal Code (IPC) established in 1860 had sections 312–318 all dealing punishments for the unlawful conduct of miscarriage. Section 312 established that causing miscarriage, for any reason other than saving the life of the pregnant woman, was an offence, for which the individual conducting the miscarriage and the pregnant woman were punishable.[3] This led to a vast number of abortions being performed by non-medical personnel and a substantial number of deaths due to abortions being performed by unqualified persons. This prompted the legislature to reconsider the stance on abortion.

The Medical Termination of Pregnancy Act was introduced in 1971, which legalised MTP under certain conditions.[4] The MTP Act, 1971, clearly laid down the criteria for a registered medical practitioner (RMP) and medical centre to be deemed qualified to conduct MTPs. The MTP Act however did not permit MTP as a method of family planning or on the mere grounds that the woman did not desire to continue the pregnancy. The grounds permitted for MTP were

  • If the continuation of pregnancy posed a risk to the life of the pregnant woman

  • The pregnancy, if continued, would result in grave injury to the physical and mental health of the pregnant woman.

The explanation mentioned for this clause in the Act itself describes pregnancy caused due to rape or due to failure a device/method of contraception between a married couple to fall within the ambit of causing grave mental injury to the pregnant woman.

  • The existence of substantial risk is that if the child is born, it would suffer serious physical/mental abnormality.

The Act states that if any of these grounds are met, the termination of pregnancy can be performed based on the opinion of a single RMP within 12 weeks of gestation, while it requires the opinion of two RMPs for termination between 12 and 20 weeks of gestation. The Act allows for termination after 20 weeks of gestation only if there is risk to the life of the pregnant woman due to the pregnancy being continued. With regard to the consent required for MTP, the Act states that MTP can be conducted only with the consent of the pregnant woman. In case of minor below 18 years of age or a mentally ill woman, the consent of a guardian is required.

THE ETHICAL STANCE AND THE PRACTICAL STANCE

One inference from the Act, that cannot be disputed, is the prioritisation of the health of the pregnant woman. Considering the vast number of maternal deaths occurring in relation to abortions, prioritising reproductive health was the cornerstone of the Act. The Act does not confer any rights to the foetus. The reason for not allowing MTPs beyond the stipulated time periods was the increased risk to maternal health and not dependent on any rights conferred to the foetus. This is in keeping with Indian Law which does not confer any rights to an unborn foetus, no matter the gestational age. There are however several detractors to this.[5] Mother Teresa, a strong pro-life proponent, once exclaimed, ‘Human rights are not a privilege conferred by government. They are every human being’s entitlement by virtue of his humanity. The right to life does not depend, and must not be declared to be contingent, on the pleasure of anyone else, not even a parent or a sovereign’.[6]

The ethical issue for consideration is the right to bodily autonomy and the reproductive choice of the pregnant woman.[7] Strictly speaking, the Act gives no consideration to either of them, as unwillingness to continue pregnancy is not a permitted ground for MTP. When we consider the historical background and context of 1970s India with a predominantly uneducated population, in which the Act was framed, the legislators probably did not wish to permit MTP to become a mode of family planning. That would then have adverse consequences on the health of women and be counterproductive to their goal of preserving reproductive health. However, it is interesting to note that the legislators framed a subjective clause for such bodily autonomy and choice to still play a role. Failure of contraception leading to pregnancy has been assumed to cause grave injury to the mental health of the woman. It is not possible by any means, for the RMP to conclusively prove/disprove the pregnancy to be the result of failed contraception. Hence, if a woman unwilling to continue the pregnancy has to claim that the pregnancy was a result of failed contraception, it would be left to the RMP to certify, again by a subjective assessment, if it is causing grave mental injury to the pregnant woman. This subjective provision might have been the solution the legislators manufactured, to simultaneously uphold the bodily autonomy of women, while providing a safety check to prevent misuse of MTP as a method of contraception. In a developing country, this act attempts to walk the fine line of being practically appropriate while also attempting to uphold ethical considerations, all the while, ensuring that the health of pregnant women is the utmost priority.

The good

The MTP Act’s primary objective was to safeguard the health of the pregnant woman. It did this by legalising MTP, while also inserting safeguards to ensure that MTPs did not instead become detrimental to their health. A vast majority of abortions in India were being performed by unqualified persons, often at unequipped locations, using unsafe and sometimes unscientific methods. MTP Act establishes centres where MTP can be performed and does not restrict it to government-run set-ups. This was required, as the government medical infrastructure would be insufficient to accommodate the needs of such a hugely populated and economically diverse population. It clearly stated the professional skill requirement for a doctor to be recognised as a registered medical professional (RMP) qualified to perform a MTP. It simultaneously criminalises the performance of MTP by unrecognised centres/RMPs. These measures automatically ensured that the rate of MTP-related complications and deaths would decrease. Going a step further, the MTP Act, to protect the health of pregnant women without access to appropriate medical care, allows in good faith, even unrecognised RMPs/centres to perform an MTP if there is an immediate threat to the life of the pregnant women due to the pregnancy.

The MTP Act in some sense provides reproductive freedom and upholds the bodily autonomy of the woman. In order for an MTP to be performed, it does not require the consent of any individual apart from the pregnant woman. The consent of the husband is not required. If the husband or family members want an MTP to be performed, it still cannot be performed without the consent of the pregnant woman herself. If the pregnant woman claims the pregnancy occurred due to failure of contraception, the RMP can accept their word and is a ground for MTP. Recognising the social stigma associated with rape, the apprehension of a few women to approach medical establishments in the fear of having police authorities being notified of the rape, the mental and physical trauma a rape victim undergoes, the MTP Act allows for a mere allegation of rape, to be grounds for a MTP. There is no requirement for any police complaint of the rape being filed, nor is the RMP required to notify police authorities of the alleged rape.

The MTP Act was a phenomenal success. It gradually transformed the landscape of abortions in India. Previously, seen as an act associated with social taboo, done through unqualified persons, and associated with a grave risk to life of the pregnant women, today, it is rightly seen as a relatively safe medical service that can be availed by any pregnant woman regardless of societal opinions. This success is reflected in the steadily declining Maternal Mortality Rate (MMR) of India. The MTP Act has contributed in reducing the MMR by 77%, from 556 per 100 000 live births in 1990 to 130 per 100 000 live births in 2016, in contrast to the global maternal mortality reported to have experienced a decline of 43%. This has led the World Health Organisation to highlight and praise the MTP Act on India in making abortion safer.[8]

The bad

The MTP Act since 1971, until recently, permits MTP based on the opinion of a single RMP only up to 12 weeks of gestation and up to 20 weeks of gestation based on the opinion of two RMPs. The 12-week deadline was practically hard to be followed, as it is not rare for pregnancies to be confirmed only after 12 weeks of gestation. The 20-week deadline was also often passed, as foetal anomaly scans were usually done after the completion of 20 weeks of gestation, leaving no time for an MTP in the event of a foetal anomaly being detected in the scan. This led many women crossing the 20-week deadline to again adopt unscientific methods and approach unqualified individuals for such abortions.

RECENT CHANGES

The MTP Act has been modified in October 2021,[9] to address those specific drawbacks. The MTP Act now allows MTP to be performed with the opinion of a single RMP till 20 weeks of gestation, compared to the earlier limit of 12 weeks. It has also allowed MTP to be performed between 20 and 24 weeks of gestation based on the opinion of two RMPs for cases involving:

  • Rape/incest/sexual assault.

  • Minors.

  • 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).

  • Mentally ill women including mental retardation.

  • Foetal malformation that has a substantial risk of being incompatible with life, of if the child is born it may suffer from such physical and mental abnormalities to be seriously handicapped.

  • Humanitarian settings or disaster or emergency situations as may be declared by the government.

These changes represent the evolution of the Act to address the previous shortcomings. Recognising that pregnancies can often be undiagnosed beyond 12 weeks of gestation, it now allows for a hassle-free MTP until 20 weeks of gestation, with the opinion of a single RMP. The advances in medicine allow for safe MTP to be performed up to 20 weeks of gestation without adversely impacting the health of the woman significantly, and this modification is reflective of modern times. It has even made the service available up to 24 weeks of gestation in certain special situations. Consideration is given that women in such special situations may be unable to access health care in a timely manner/require additional time for a decision on MTP to be made. Foetal anomalies may be often recognised after 20 weeks of gestation during the anomaly scan done at 20 weeks gestation, and continuation of such a pregnancy would only be detrimental to the woman and the foetus. A provision has also been made for cases involving pregnancy beyond 24 weeks gestation with foetal anomalies. In such cases, the woman can approach the medical board of the respective state, established within the new modifications of MTP Act, for an MTP. The medical board is to provide a decision within 3 days of being approached. Thereby these new modifications are looking to further safeguard the rights and reproductive freedom of pregnant woman, especially those who are vulnerable.

SOME COMMENTARIES

There is increasing awareness about the MTP Act in India, with the medical fraternity beginning to look beyond the task of enforcing the provisions, and instead also beginning to explore the ethical and legal aspects in relation to MTP. Sasi[10] explored the ethical issues concerning abortions after 20 weeks of gestation. Arora and Verma[11] explained the implications of the amendment made in 2021 to the MTP Act. Datar[12] explains what the 2021 amendment provides for in terms of abortions after 20 weeks of gestation. Basu[13] makes a case for transitioning from provider-centred to women-centred care in the future. Kumari and Kishore[14] explore aspects beyond legislation which are having an impact on MTP in India like awareness, availability, accessibility, affordability of quality MTP services and contraceptives. We aimed to add to these discussions by providing an overview of the Act from its introduction in 1971 to the recent amendments of 2021, the objectives it set out to reach and exploring if does indeed find that path between practical and ethical reproductive justice that the world is in search for today.

THE ROAD AHEAD

While the MTP Act has come a long way in uplifting the cause of reproductive rights of women in India, there are still lacunae to be filled and need for refinement. The recent amendment of October 2021 directs a medical board to be established by each state government for special permission for MTP. However, there are yet no guidelines provided on how many such medical boards are to be established in each state. A single medical board in an entire state may be insufficient and inconvenient to pregnant women. The Act also leaves a grey zone when it comes to the issue of whose permission is more important when it comes to the issue of MTP for a minor girl, whose parents/guardians are not sharing the same opinion on the continuation of pregnancy as the minor.[15] The success of this Act will also depend on how many women and doctors it can reach. Awareness and discussion regarding MTP will certainly help our society move forward. While the Act has made meaningful progress, the magnitude of impact is still dependent on the infrastructure for its implementation. India has come a long way in ensuring the universal availability of contraceptives, but there are yet large gaps to fill in terms of physical infrastructure, especially in rural areas.[16] Those gaps will need to be filled to bring down the number of unsafe abortions in India, which still has approximately 0.8 million unsafe abortions occurring every year.[17] The three most important areas requiring attention in the future are

  • Establishment of sufficient medical boards to ensure feasibility and convenience for abortions.

  • Deliberation and clarification on the right to abortion for minors.

  • Improvement in infrastructure to ensure universal accessibility and availability of abortion services in India.

The journey ahead for reproductive freedom and justice in India is long and winding; the MTP Act has certainly been steering us in the right direction.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.

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