Law related to abortion – Part 3

Do read the previous articles on Abortion

Laws Related To Miscarriage in India

It is possible to get an abortion under the Medical Termination of Pregnancy Act, 1971 if the pregnancy is under 20 weeks. However, it is subject to several conditions and the 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 is they legally allowed performing an abortion. Conducting an abortion without fulfilling the conditions is considered a crime.

Under the law (section 3 of The Medical Termination of Pregnancy Act 1971), the doctor can perform an abortion in the following situations:

. if the pregnancy would be harmful to the life or physical or mental health. The doctor will need to consider the circumstances to figure out if the pregnancy will harm the mental health. They also need to look at the future (as a reasonable person would) to figure out the effects of the pregnancy

. if there is good chance that the child would suffer from physical or mental abnormalities which would leave him or her seriously handicapped

Conditions needed to be satisfied-

. if the pregnancy has not exceeded 12 weeks (first trimester), only one doctor needs to be satisfied that the conditions have been fulfilled

. 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

. The gestation period does not matter if doctor feels that an immediate abortion must be conducted to save the 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

Right to Abortion

The right to abortion has also been viewed by Courts as a fundamental right and the landmark judgment of Roe v Wade reiterated the same, stating that the right to abortion is fundamental liberty protected by the 14th Amendment of the Constitution. This case has been a precedent for various judgments passed by the Indian Courts, including Suchita Srivastava vs Chandigarh Admin [ii], in which the Supreme Court held that reproductive rights are to be protected under the fundamental right to privacy guaranteed under the Constitution and the autonomy must subsist on the woman to decide whether to bear a child or not, and the state must not intervene in such matters.

Before analyzing the flaws in the existing flaws in the existing laws surrounding abortion, it is important to know the current provisions available for abortion and the criminal action that could entail in case of illegal miscarriage.

Abortion Act 1967

In course of time it was realized that the strict provision of the law of abortion contained in sections 58 and 59 of the Offences against the Person Act 1861 was doing more harm than good. The attitude of medical profession was hostile and tragic cases continued to occur. Women who had been raped, deserted by their husbands, and overburdened mothers living in poverty with large families failed to get a medical abortion. As a result most of the women would go to ‘back street abortionists’ wielding a knitting needle, syringe or stick leading to a great risk in their life. At times unwilling mothers used dangerous methods on themselves or committed suicide. It was also notice that although illegal abortions were taking place in thousands, as in the case of India before the passing of the Medical Termination of Pregnancy Act of 1971, yet convictions were negligible. The police would not look abortion a real crime.

As these evils were beginning to be realized, a strong opinion grew that a woman had a right to control her own fertility and that the abortion should be legalized. At the same time a powerful religious lobby basing itself upon their “sanctity of life” was opposed to any move for change in the law. As a compromise measure the Abortion Act 1967 was passed which substantially liberalized the law of abortion though it did not concede all the demands of the pro abortionists.  The Act of 1967 has legalized the termination of pregnancy by a registered medical practitioner under certain specified circumstances as provided under section 1 which states-

Medical Termination of Pregnancy- (1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion, when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith

  • That the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated or
  • That there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

To bring the Act of Termination of Pregnancy within the purview of the exception clause to section 1(4) of the Act of 1967 the risk of injury feared from allowing the pregnancy to continue must be ‘greater than if the pregnancy were terminated.’ The Act for the first time allows the interests of the children of the family would thus be a valid ground for termination of a pregnancy.

The termination of a pregnancy on eugenic grounds is basically justified upon the ground that the child if born would be seriously handicapped and would be a burden to the welfare of the parents and the society at large. An important feature of the Act of 1967 is that it does not permit termination of a pregnancy on grounds of rape as in the case of India. However, the fact of rape could influence the decision of the doctors in invoking the health grounds.

Similarly, the failure of any device or method used by a married couple for the purpose of limiting the number of children cannot justify termination of a pregnancy as under the Indian Law. Perhaps the ground of the health of the children could be invoked to terminate unwanted pregnancy in such a situation.

Famous Cases Related To Miscarriage in India

Dr Jacob George v State of Kerala on 13 April, 1994

The Judgment of the Court was delivered by HANSARIA, J- Life is said to be the most sublime creation of God. It is this belief and conception which lies at the root of the arguments, and forceful at that, by many religious denominations that human beings cannot take away life, as they cannot give life. This idea is so intense with some religious leaders that they would even oppose any measure of birth control. Abortion or miscarriage would be opposed with greater force by these persons.

Mahatma Gandhi, Father of the Nation, urged long back in Harijan that God alone can take life because He alone gives it. For the Jains taking away of even animal life is a sin, as, according to them, animals are as much part of God as human beings. Buddhists too preach Ahimsa.

Our Riga Veda II recites:

“Grant us a hundred autumns that we may see the manifold world.

May we attain the long lives which have been ordained as from yore.” Atharva Veda I contains the following:

“May we be enabled to see the sun for a long time.”

The aforesaid shows that life is beyond price and it is not only a legal wrong, but a moral sin as well to take away life illegally.

In the present appeals we are not concerned with taking away of life before its birth. We are concerned with destruction of fetus life. This is what is known as abortion or miscarriage. To dispel any doubt as to whether the fetus has a life, what has been stated by Taylor in his Principle and Practice; of Medical Jurisprudence may be noted where the learned author has opined at p. 332 (13th Edition) that legally both abortion and miscarriage are synonymous because the fetus being regarded as a “human life… from the moment of fertilization.” It may however, be stated that sometimes the word ‘miscarriage’ is used for “spontaneous abortion” and “abortion” for “miscarriage produced by unlawful means.”

Sumita Mukherjee v State of Madhya Pradesh

In the instant case, it has come on record that the prosecutrix and her mother herself went to the Nursing Home of applicant No 1 on 12.2.2011 and at that time the prosecutrix was wearing a Mangalasutra and was having Sindoor on her forehead, which is the sign of married lady in our society and mother of the prosecutrix requested that the prosecutrix is pregnant and she is bleeding heavily, therefore, applicant found that she was having foetus of 6-7 months and administered two injections. The prosecutrix and her mother stayed in the Nursing Home at night and at about 10.30 PM, applicant Nos. 2 and 3 informed applicant No.1 that the prosecutrix is bleeding heavily, her blood pressure is very low and her pulse is also decreasing, thereafter, applicant No 1 examined the prosecutrix and in order to save her life after obtaining consent from the prosecutrix and her mother, which is available on record, caused miscarriage of the prosecutrix.

It appears that the trial Court has failed to consider the aforesaid aspect of the case wherein it has come on record that the miscarriage was caused in good faith to save the life of the prosecutrix. Thus, no case under Section 312 of the IPC is made out against the applicants. Further nothing has been found on record that the applicants were involved in causing disappearance of any evidence to screen offender, therefore, no case under Section 201 of the IPC is made out against applicants. In my opinion, the Trial Court has committed illegality in dismissing the application filed by the prosecution under Section 169 of the CrPC and further committed illegality in framing the charges under Section 312, 201 of IPC against the applicants.

Consequently, this revision is allowed. Impugned order dated 27.2.2013 passed by Fifteenth Additional Sessions Judge; Jabalpur in S.T No 567/2011 is hereby set aside. The applicants are discharged from the charges under Section 312,201 of the IPC.

CONCLUSION- After going through the detail of the project work which is related to miscarriage in India, it can be concluded that India has a worst scenario in terms of miscarriage related to women in India. Different sections in IPC have been enacted to define the basic idea of miscarriage and there are punishments and fines which are related to committing offence of miscarriage. We also concluded that project work also lays special emphasis on Section 312 and 313 of the IPC. There are different laws related to miscarriage in India. Various case laws are related to the miscarriage in India. We also discussed about the famous case laws related to miscarriage in the project work. So in the end it can all be concluded that Autonomy and Independence of a woman is directly as well as closely related to her ability to play a role outside home. The inability to decide freely and responsibly on the spacing of children has , in turn deprived many women of the advantages of health, employment, and their roles in family, public and cultural life on equal footing with men as agreed in the United Nations.

BIBLIOGRAPHY/REFERENCES

Websites

. http://www.thehindu.com/opinion/lead/A-tricky-debate-on-abortion1547721.eceA

. http://www.legalserviceindia.com/articles/adoption.htm

. http://www.indiankanoon.com

Books

. RATANLAL AND DHIRAJLAL –THE INDIAN PENAL CODE (36TH Edition)

. Indian Evidence Act – James Fitzjames Stephen, 1872

. Indian Penal Code – B.M. Gandhi 2006

. Lectures on Criminal Procedure- R.V. Kelkar 1980

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