Medical Termination of Pregnancy and Pre Natal Diagnostic Techniques Act 1994
Medical Termination of Pregnancy and Pre Natal Diagnostic Techniques Act 1994
Medical Termination of Pregnancy and Pre Natal Diagnostic Techniques Act 1994
Acknowledgement
I am indebted in all humbleness and gratefulness to acknowledge my depth to
all those who have helped me to put these ideas, well above the level of
simplicity and into something concrete.
I would like to express my special thanks of gratitude to my teacher
who gave me the golden opportunity to do this wonderful project which also
helped me in doing a lot of Research and i came to know about so many new
things. I am really thankful to her. Any attempt at any level cant be
satisfactorily completed without the support and guidance of hers.
I would like to thank my parents who helped me a lot in gathering different
information and guiding me from time to time in making this project, despite of
their busy schedules, they gave me different ideas in making this project unique.
Thanking you.
Burhanuddin Salaria
Table of content
Introduction
Medical Termination of Pregnancy
Indian Perspective
Law of Abortion: critical analysis
The Medical Termination of Pregnancy Act
Pre-Natal Diagnostic
Bibliography
INTRODUCTION
Law has had important contributions to several public health achievements but,
despite this, the conceptual framework for its effective application has not been
fully explicated. Medicine has moved beyond treating disease to promoting
health, which entails policy interventions and regulations at different levels to
bring about behavioural changes in individuals. This was identified by the
nineteenth century German physician Rudolph Virchow who said: Medicine is
a social science and politics nothing but medicine on a grand scale. In the
present-day changing scenario, physicians need to understand the social
implications and the over-arching role of law. We highlight how a framework of
law can be developed for promoting public health goals.
The Constitution of India has provided guarantees and policy directives in Part
III1 and Part IV2 for the right to health and healthcare. The Supreme Court of
India has articulated in several landmark judgments3 that the right to health is
integral to the right to life under Article 21 of the Constitution of India. While
on the one hand, the right to health is guaranteed as a fundamental right, the
Constitution also imposes a positive duty on the State under Article 47 to raise
the level of nutrition and the standard of living, and to improve public health to
ensure the right to healthcare. Thus, as endorsed in the Declaration of Alma Ata
in 1978, the attainment of the highest possible level of health becomes the key
worldwide social goal. The Constitution of South Africa too, in its Bill of
1Fundamental Rights
2 Directive Principles of State Policy
3Mohinder Singh AIR 1997 SC 1225
Rights,4 expressly declared access to healthcare, food, water and social security,
besides emergency medical treatment, as the fundamental rights of individuals.
Abortion has been legal in India since 1971, when the Medical Termination of
Pregnancy Act was passed. The law is quite liberal, as it aims to reduce illegal
abortion and maternal mortality.
Sex selection is a deep rooted problem in India. Families who discriminate
against girl children prefer to abort the child before it is born. The boy child is
preferred since he will carry on the family name, provides for the elders and is
not a burden on the family at the time of marriage. In 1994 the Government of
India in an attempt to stop female foeticide passed the Pre-natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act. In 2002 the act was
amended. Following is an overview of the act in its amended form.
The Supreme Court has said that the right to privacy is implicit in Article 21 of
the Constitution and a right to abortion can be read from this right.The Medical
Termination of Pregnancy Bill was passed by both the Houses of the Parliament
and received the assent of the President of India on 10th August, 1971. It came
on the Statute Book as the "The MTP Act, 1971". This law guarantees the Right
of Women in India to terminate an unintended pregnancy by a registered
medical practitioner in a hospital established or maintained by the Government
or a place being approved for the purpose of this Act by the Government. Not
all pregnancies could be terminated.
classify the pregnancy period so that the woman's interests and the state's
interests could be given predominance in one's own spheres.
It is submitted that a decision as to abortion may be entirely left with woman
provided she is sane and attained majority. Only in cases where an abortion may
affect her life, her freedom may be curtailed. All other restrictions on the right
to abortion are unwelcome. True, a woman's decision as to abortion may depend
upon her physical and mental health or the potential threat to the health of the
child. Apart from these reasons, there are also various important factors. She or
the family may not be financially sound to welcome an addition. It may be a
time when she wants to change her profession, which requires free time and
hard work. Her relationship with the husband may virtually be on the verge of
collapse and she may prefer not to have a child from him, for it may possibly
affect a future marriage. All these factors are quite relevant and the Indian
statute on abortion does not pay any respect to them. The law thus is
unreasonable and could well be found to be violative of the principles of
equality provided under Article 14 of the Constitution. Is it desirable to pay
compensation to woman for all her physical and mental inconveniences and
liabilities, which arises in that context. Finally it may be noted that the M.T.P.
Act does not protect the unborn child. Any indirect protection it gains under the
Act is only a by-product resulting from the protection of the woman. The rights
provided as well as the restrictions imposed under the statute show that the very
purpose of the state is to protect a living woman from dangers which may arise
during an abortion process. It is the protection to the mother that protects the
unborn.
the
importance
of
providing
safe,
affordable,
only the woman to seek safe abortion, but also her right to
access safe abortion services as well as information about the
availability of such services and the consequent responsibility
of the state to provide these services 9. Though abortion law
allows for termination of pregnancy for a wide range of reasons
construed to affect the mental and physical health of the
woman, it remains with the doctor (and not the woman) to
opine in good faith, the need for such a termination. Such a
provider-dependent policy might result in denial of abortion
care to women in need, especially the more vulnerable
amongst them, for various reasons, including conscientious
objections. It is also argued that it may compel a woman to lie
about the situation surrounding her unwanted pregnancy.
Further, the same provider-depended law, however liberal it
may be, can become restrictive under different socio and
political compulsions without the alteration of even a single
word. Moreover, while the MTP Act permits women seek legal
termination of an unwanted pregnancy for a wide range of
reasons, the clause about contraceptive failure applies only to
married woman. This discrepancy needs to be corrected.
While the abortion policy allows for monitoring of quality of
abortion care in the private sector, its recognition of all public
health institutions as abortion facilities by default exempts the
public sector from certification. This raises a potential hazard in
family planning clinics A case study of Orissa. Journal of Family Welfare, 36(3),
37.
9 Krishnakumar, S. (1974, February). Ernakulams third vasectomy camp using
the camp approach. Studies in Family Planning, 2, 5861.
facilities
also
implies
the
responsibility
of
the
government
accountable,
this
mandate
serves
to
not
specify
measures
or
redress
mechanisms
if
10 Supra Note 2.
on-site
capability)
surgical
abortion
services.
This
general
anaesthesia,
different
drug
dosage
13
for
private
medical
practitioners
desirous
of
guidelines
for
management
of
post-abortion
of
abortion,
judgmental
attitudes,
conscientious
Policies
need
to
ensure
that
measures
for
While not shy of critiquing public policy, the general phobia for
record keeping and reporting and the consequent fear of
accountability to the state, has restrained private doctors from
taking part in public policy dialogue. The general lack of
concern in the private sector about ethical violations and the
lack of adherence to minimal quality standards on the one
hand, and the blind eye it turns towards the uncertified and
unqualified providers of illegal and unsafe abortion among its
fraternity on the other, raises concerns about self-regulation
within the sector.16 It is only recently that some private actors
have begun to play a more proactive advocacy role for
improving access to safe abortion care, though there have
been/are many opportunities for public private partnerships in
the areas of policy formulation, research, training and practice,
and the strengthening of safe abortion care.
In Dr. Rajeswari vs State Of Tamil Nadu And Others, an unmarried girl of 18
years who is praying for issue of a direction to terminate the pregnancy of the
child in her womb, on the ground that bearing the unwanted pregnancy of the
child of three months made her to become mentally ill and the continuance of
pregnancy has caused great anguish in her mind, which would result in a grave
injury to her mental health, since the pregnancy was caused by rape. The Court
granted the permission to terminate the pregnancy.
In Dr. NishaMalviya and Anr. Vs. State of M.P, The accused had committed
rape on minor girl aged about 12 years and made her pregnant. The allegations
are that two other co-accused took this girl, and they terminated her pregnancy.
So the charge on them is firstly causing miscarriage without consent of girl. The
16 Mandal KT. Problem of unmarried mothers. Journal of the Indian Medical
Association Vol.79 No. 5&6, 1982.
Court held all the three accused guilty of termination of pregnancy which was
not consented by the mother or the girl.
In Murari Mohan Koleyvs The State(2003), a woman wanted to have abortion
on the ground that she has a 6 months old daughter. She approached the
petitioner for an abortion. And the petitioner agreed to it for a consideration. But
somehow the condition of the woman worsened in the hospital and she was
shifted to another hospital. But it resulted in her death. The abortion was not
done.The petitioner who was a registered medical practitioner had to establish
that his action was done in good faith ( includes omission as well ) so that he
can get exemption from any criminal liability under section 3 of the MTP Act,
1971.
ShriBhagwanKatariyaAnd Others vs State of M.P: abortion without mothers
consent .The woman was married to Navneet. Applicants are younger brothers
of said Navneet while BhagwanKatariya was the father of said Navneet. After
the complainant conceived pregnancy, the husband and the other family
members took an exception to it, took her for abortion and without her consent
got the abortion done.
The Court opined that if we refer Section 3 of the Medical Termination of
Pregnancy Act, 1971, a doctor is entitled to terminate the pregnancy under
particular circumstances and if the pregnancy was terminated in accordance
with the provisions of law, it must be presumed that without the consent of the
woman it could not be done. Present is a case where a permanent scar has been
carved on the heart and soul of the woman by depriving her of her child. And
the Doctor will be liable.
Thus, the case laws show that a woman has an absolute right to abortion and no
one can take away this right from her. The Judiciary has been playing a vital
PRE-NATAL DIAGNOSTIC
Sex selection is a deep rooted problem in India. Families who discriminate
against girl children prefer to abort the child before it is born. The boy child is
preferred since he will carry on the family name, provides for the elders and is
not a burden on the family at the time of marriage. In 1994 the Government of
India in an attempt to stop female foeticide passed the Pre-natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act. In 2002 the act was
amended. Following is an overview of the act in its amended form.
In order to fully understand the provisions of this act it is important to know two
definitions as given in the act. Embryo refers to a developing human organism
after fertilization till the fifty-sixth day. Foetus refers to a developing human
organism from the fifty-seventh day after fertilization till birth. The act firstly
outlines provisions about the regulation of genetic counselling clinics, genetic
laboratories and genetic clinics. All such clinics have to be registered under this
act, and all medical professionals employed must have the appropriate
qualification to conduct pre-natal diagnostic techniques.
The act prohibits the medical personnel from conducting or helping anyone
conduct sex-selection. All medical equipment regarding pregnancies shall be
sold only to registered clinics. All pre-natal diagnostic techniques are banned
except for the detection of chromosomal abnormalities, genetic metabolic
diseases,
haemoglobinopathies,
sex-linked
genetic
diseases,
congenital
supervisory boards on changes in technology, etc. They have the power to issue
warrants, summon people with information, and ask for any document to be
produced regarding the information. To aid the Appropriate Authority the
government will also form an Advisory Committee.
The act has a section that lists all offences and their penalties that can be
committed under this act. Under this act is it also an offence to advertise
techniques used for the purpose of sex-determination. People who contravene
the provisions of this act are liable to serve prison time and a fine. But women
who have been forced to by their husband or family to undergo pre-natal
diagnostic techniques will not be prosecuted under this act. Companied and
people in the position of responsibility in companies can also be charged for
violation of this act.
The Supreme Court, taking a serious view of the onslaught of sex-selective
discriminatory practices by the medical fraternity, and the connection it may
have with the use of pre-natal sex determination, directed the Centre to
implement the PC & PNDT Act in all its aspects. The order came following a
public interest petition filed by the centre for the Enquiry of Health and Allied
Themes (CEHAT), the Mahila Sarvangeen Utkarsh Mandal (MASUM) and Dr.
Sabu George, who had done extensive research in this area.
In order to stop this evil practice, the legislature has enacted certain laws which
are the Indian Penal Code, 1860; the Medical Termination of Pregnancy Act,
1971 and the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition
of Sex Selection Act) 1994.
The Indian Penal Code is the first law which contained provisions under
sections 312 to 316 for prohibiting miscarriage. These sections penalise violent
or forced abortions. The Medical Termination of Pregnancy Act, 1971
liberalised law and allowed termination of pregnancy on medical grounds,
(7) The foetus should enjoy the right to life and should enjoy distinct legal
rights which should be recognized from the conception, because failure to
recognize the right to life on the foetus will amount to discrimination violating
Article 14
the realm of torts, the Congenital Disabilities (Liability) Act, 1976, was passed
by the British Parliament providing for action that may lie against a person or
authority whose breach of duty to a parent results in a child being born disabled,
abnormal and unhealthy. Similarly the Nuclear Installation Act of 1965 (U.K.),
recognizes liability for compensation in resSpect of injury or damage caused to
an unborn child by occurrences involving nuclear matter or emission of ionizing
radiation. The Indian Parliament should enact laws on similar lines so as to
ensure healthy growth and safe birth of an unborn child.17
(8)
There is need for social awareness that girls can grow up to be as good
as boys. They can be good citizens, good earners, good providers for their
family and for their parents. That woman need not be sold for dowry or burnt
for it, that her education can make her self-sufficient and economically blessed
as a man. A clear and strong social preference for the girl child is required to be
created which can be done by generating awareness.
(10)
position. Medical professionals should counsel their patients and their families
on the importance of the girl child and impact of the skewed sex ratio on the
society.
17SupinderKaur, Female Foeticide A, Frightful Reality, 1st Edn., Central Law
Publications, Allahabad, U.P., 2009.
The members of Appropriate Authority are mainly doctors and they are
(15)
As most of the decisions are made by men in the families, they need to
making the data regarding sale of ultrasound machines, which are used for
illegal sex determination tests, should be made available online. Information
received will help governmental and non-governmental organisation in
estimating the targets for proper implementation of the Acts and for suggesting
remedial measures to combat the problem. By involving all the stakeholders, a
comprehensive social audit can be conducted to launch a crusade against female
foeticide.
(17)
Determining the sex of the foetus as female and killing her subsequently
regulation of PNDT techniques is that there is no proper duty laid upon any of
the authorities in the Act. Therefore, penalty must be imposed for nonperformance of duties or acts of commission or omission by the Authorities.
(19)
is aborted, both the doctor and the family should be brought to book.
Unless social action is supplemented with prompt implementation of regulations
under the law meant to stop female foeticides, such practices will continue to
flourish and sex selective abortions will make women endangered species. Time
has arrived to declare a crusade against female foeticide both on individual and
collective level to stop elimination of daughters only because of their sex.
CONCLUSION
Several national-level consultative efforts involving policymakers, professionals groups, NGOs and health activists, have
made major policy recommendations to improve access to safe
and legal abortion services in India. Many of these policy
recommendations are in line with the objectives and Action
Plan of Indias National Population Policy, 2000. 18 Increasing
availability,
creating
qualified
providers
and
facilities,
The law has to take care of the liberty of the mother as well as the unborn. As a
hospitable community we should seek ways of providing support for lonely and
frightened mothers, and for lonely and abandoned babies. We need to offer
women with unplanned pregnancies as much love and support as they require
and to assist them in finding compassionate alternatives to abortion.
Strong male preference and consequent elimination of female has continued to
increase rather than decline with the spread of education.
The recent technological developments in medical practice combined with a
vigorous pursuit of growth of the private health sectors have led to the
mushrooming of a variety of sex-selective services. The increase in female
foeticide has been seen proportionate decrease in female sex ratio which has hit
an all time low especially in the 0-6 age group and if the decline is not checked
the very delicate equilibrium of nature can be permanently destroyed.
BIBLIOGRAPHY