This article is authored by Ayushman Verma and edited by Mr. Anoop Prakash Awasthi, AOR and Adv. Prapti Singh.
INTRODUCTION
The term abortion in law, is a substitution or a short term for the “Termination of pregnancy” by a women. Abortion in general terms refers to the induced termination of pregnancy through medical or surgical options but doesn’t include accidents.
The general concept of abortion attracts legal penalties as it stands criminalized in India but is followed by some exceptions, in certain cases it is allowed when done in good faith especially to safeguard the women against mental and physical forms of injuries.
APPLICABLE LAWS ON ABORTION IN INDIA
As stated earlier, abortion in India is not allowed or say it is a criminal followed by severe penalties unless and until not done in a good faith, in order to safeguard the physical and mental health of the women.
In Major two Indian Laws Indian Penal Code 1860 and Medical Termination of Pregnancies Act 1971 deals with the concept of abortion, its criminalization and exceptions.
Under Indian Penal Code 1860
Section 312 says that voluntary causing a miscarriage to a woman with child otherwise in good faith to save her life is a punishable act with an imprisonment up to seven years and fine.
From this provision, it is clear that one cannot endanger the life of an unborn child except in a case to safeguard the life of the woman.
But the provisions in the Indian Penal Code 1860, were not able to deal with every case or situation as they only allows abortion only in good faith for the purpose of safeguarding the life of the woman, i.e. it covers only the physical injury aspect.
But, the concept of Mental Injury arising out of pregnancies due to rape, out of unprotected intimate relationship, pregnancy to minors and insane females, health issues of infants etc. are not dealt above, to serve the same need Medical Termination of Pregnancies Act 1971 (MTP ACT) was enacted by the Indian Parliament.
Section 3 of the MTP Act encompasses some exceptional cases where the voluntary abortion by a medical practitioners shall not be an offence under IPC 1860.
WHEN ABORTION IS NOT AN OFFENCE
Section 3 of the MTP Act deals with the acceptable form of abortion by it lays down that A pregnancy may be terminated by a medical practitioner in two cases:
- When the length of pregnancy doesn’t exceed twenty weeks.
- When the length of pregnancy exceeds twenty weeks but not twenty four weeks.
The second option is only available when the concerned two or more medical practitioner thinks of the fact that it is necessary to safeguard the woman from mental and physical injury or there is a substantial risk to the mental or physical health of the new born child.
The second option under section 3(2) is limited to a certain categories of woman and not open to all the women MTP Rules 2013 Rule no. 3B lays down the list of categories of women who may be eligible for the termination of pregnancies after twenty weeks but before twenty four weeks including
- Rape/Sexual Assault survivors;
- Minors;
- Widowhood/Divorce;
- Women with disabilities;
- Mentally ill women;
- The foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and
- Women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.
