- Explain different types of Abortion.
- When is abortion permissible and when is it not?
- Discuss criminal liability of persons involved in illegal abortion – doctor, a woman undergoing an abortion, persons encouraging illegal abortion.
An abortion is the termination of a pregnancy by the removal or expulsion from the uterus of a fetus/embryo, resulting in or caused by its death. An abortion can occur spontaneously due to complications during pregnancy or can be induced, in humans and other species. In the context of human pregnancies, an abortion induced to preserve the health of the gravida (pregnant female) is termed a therapeutic abortion, while an abortion induced for any other reason is termed an elective abortion. The term abortion most commonly refers to the induced abortion of a human pregnancy, while spontaneous abortions are usually termed miscarriages.
Kinds of Abortion
Abortion can be classified in several ways.
- Legal and Illegal
- Spontaneous and Induced
- Surgical and Non-Surgical
- Therapeutic and Elective
- Voluntary and Involuntary
When is abortion permissible
Detailed provisions of legal abortion are given in the Medical Termination of Pregnancy Act, 1971. Sections 3 to 5 of this act specify the situation when abortion is permissible.
Section 3 – When pregnancies may be terminated by registered medical practitioners –
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner –
(a) Where the length of the pregnancy does not exceed twelve weeks if the such medical practitioner is, or
(b) Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that –
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped.
Explanation 1 – Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2 – Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be resumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant women’s actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.
Section 4 – Place where pregnancy may be terminated – No termination of pregnancy shall be made in accordance with this Act at any place other than,-
(a) a hospital established or maintained by Government, or
(b) a place for the time being approved for the purpose of this Act by Government.
Section 5 – Sections 3 and 4 when not to apply –
(1) The provisions of section 4, and so many of the provisions of sub-section (2) of section 3 relating to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that he termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
(2) Notwithstanding anything contained in the Indian Penal Code, the termination of pregnancy by a person who is not a registered medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years under that Code, and that Code shall, to this extent, stand modified.
(3) Whoever terminates any pregnancy in a place other than that mentioned in section 4, shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.
(4) Any person being owner of a place which is not approved under clause (b) of section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.
Explanation 1. –
For the purposes of this section, the expression “owner” in relation to a place means any person who is the administrative head or otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act.
Criminal Liability of persons involved in illegal abortion
Causing the death of an unborn child is a serious offence and the general rules regarding this are given in Section 312 to 315 of IPC. Section 312 to 315 of IPC are applicable to whoever takes part in an illegal abortion.
Section 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.
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 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.
Section 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; and if the act is done without the consent of the woman, shall be punished either with 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.
Section 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 is 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.
Section 5 of MPT Act further makes termination of pregnancy by an unregistered medical practitioner an offence punishable by 2 to 7 yrs of rigorous imprisonment.
Click here to read IPC 1860.
Click here to read the Constitution of India.