Medical Termination of Pregnancy ACT 1971 Act 34 of 1971

Subhra Dan

Adamas University, Kolkata

Abstract

The ideology of feminism was popularized in the late 20th century. Feminism has several consecutive waves in which the initial stages were developed centring women’s power and women’s empowerment. The initial waves of feminism also hit India and its political ideologies. This undue influence insisted the legislatives to draft, enact and implement the Medical Termination of Pregnancy Act in the year 1971. In India, before 1971, there was no legitimate provision for termination of pregnancy. Because there were no such strict regulations, abortion of foetus, female-foeticide and other evil practices were untraced and unregulated. The Medical Termination of Pregnancy Act acts as a landmark statute to put a hold on abortion. It was solely enacted to regulate and provide a legal framework for the safe abortion of foetus and also to protect the reproductive rights of women.

Key words-

Foetus, abortion, pregnancy, termination, family planning, contraception.

Objectives of MTP Act 1971

The followings are the objectives of Medical Termination of Pregnancy Act is-

i.                 To prevent unsafe abortions

ii.               To protect women’s health

iii.             To regulate abortion procedures in India

iv.             To prevent maternal mortality and morbidity

v.               To empower women of the nation

Chapters and range

Important dates:

i.                 It was Act no. 34 of 1971

ii.               Act ID is 197134

iii.             Short title of the Act is MTP Act 1971

iv.             The Act was enacted on 10th August 1971

v.               This Act was amended on 2021 and the new amended Act is named as New Medical Termination of Pregnancy (Amended) Act 2021.

The MTP Act 1971 consists of eight sections.

Section 1

Short title, extent and commencement

 

 Section 2

Definitions

Section 3

When pregnancies may be terminated by registered physician or practitioner

 

Section 4

Place where pregnancy may be terminated

Section 5

Sections 3 and 4 when hardly apply

 

Section 5A

Protection of privacy of a woman

Section 6

Power to make rules by the union government (parliament)

 

Section 7

Power to make regulations by the state legislatives

 

Section 8                                     

 

Protection of action taken with bona fide.

Analysis of the MTP Act 1971

Interplay between the Constitution of India and the MTP Act-

MTP Act is a statute that derives its authority and sole objective from the Constitution of India. The MTP Act has been materialized encircling the sole ideologies of  Articles 14, 21 and 23 of the Constitution. Parallelly, the mentioned Act is also related to Article 47 of part iv of the Constitution. All women have the right to their bodies and the authority to decide about their reproductive health. Article 21 advocates the concept of the right to life and liberty, so ensuring the right of woman on her body and protection of a women by legalising abortion is highly appreciated in the MTP Act 1971. The concept of gender equality along with prevention of discrimination based on gender or socio-economic status is encouraged in Article 14 of the Constitution. In the MTP Act, specific rights of women on their health and autonomy are prioritized, this objective aligns with the fundamental right enshrined in Article 14 of the Constitution. The Act directly addresses the issue of exploitation by regulating the process of abortion and also ensures that no women should be subject to any unethical or unsafe practices.

Analysis of the sections

Section I

The very initial section of the Act deals with the title, extent and commencement of the Act. The Act is executed in the land of India and after the amendment of Article 370 of the Constitution of India the Act has been extended to the state of Jammu and Kashmir. This Act was given the name of the Medical Termination of Pregnancy act 1971.

Section II

This section deals with the important definitions included in the MTP Act.

 “guardian” means a person having the care of the person of an individual below the minimum age, i.e. eighteen years according the rules.

 “Mentally ill person” means a person who is in need of treatment by reason of any intellectual disability or mental retardation.

“Registered medical practitioner” means a physician who possesses any recognised medical qualification or degree as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956.

 “Termination of pregnancy” means a procedure to end a pregnancy by using medical or surgical methods.

Section III

This section deals with the incidents when a pregnancy can be terminated by a medical practitioner. A pregnancy can be terminated by a registered practitioner if the pregnancy has not exceeded a period of one forty days or approx. twenty weeks. After the amendment of 2021, a woman can be allowed for an abortion after twenty-four weeks of pregnancy in some highly exceptional cases. For terminating a pregnancy of 20 weeks, consent of only one registered medical practitioner is sufficient along with the woman though for the termination of a pregnancy between 20- 24 weeks, it is highly necessary to consider the consents of two registered medical practitioner along with the pregnant women. Mainly there are two conditions for termination, first is that the pregnancy involves serious risks to the woman’s health and second is that there is a high possibility of any critical physical or physiological abnormality of the foetus. There are two exceptional cases like the case of rape and failure of contraception in which the pregnancy is considered as a mental agony to the pregnant woman.

Section IV

This section exclusively enshrines the regulations regarding the place of terminating a pregnancy. As per this section, only in hospitals that are established and maintained by government or any place which is considered as fit for this purpose by the Chief Medical Officer or the District Health Officer.

Section V

This section provides a safeguard to the registered medical practitioner who has performed the medical procedure of abortion in bona fide to save the life of the woman. This section ensures that the medical practitioner can act swiftly in case of serious medical complications or emergencies related to a woman’s health. It solely prioritises the life the woman above all.

Section V-A

This section is exclusive dedicated to the privacy of the women. It is depicted that no practitioner shall ever disclose the identity, name or any related information of any woman who has undergone abortion. Though there can be some exceptions to this when a person authorized by any law for the time being in force.

If this provision is breached, then there is a sanction of imprisonment which can be up to a year along or an amount of fine and sometimes both.

Section VI and VII

Section 6 deals with the power of the union or the central government to frame laws whereas section 7 deals solely with the power of the state government to draft laws regarding to medical termination of pregnancy. The central has specific rights to frame rules and amend some sections of this Act. The state government can also frame laws and certain regulations that is within its jurisdiction. If any individual wilfully contravenes with the regulations that are framed, then there is a penalty of imprisonment and a fine of Rupees one thousand or both in some cases.

Section VIII

It depicts that any decision taken in bona fide shall not be treated as a delinquency, i.e. it enshrines legislations to protect the actions that are performed in good faith. According to this Act, no suit shall lie against any medical practitioner for any damage caused or likely to be caused by anything which is done with no malice or evil intension.

Cases

In “Bhavikaben v. State of Gujrat”[1], the Court allowed to abort the foetus as she was a sufferer of a heinous sexual harassment. The court taken into consideration her young age, her mental agony and the absence of medical risks in terminating the pregnancy.

Section 3 (4)(a) of the MTP Act has allowed to terminate the pregnancy of a minor with the consent of her legal guardians. But in a case of Madras High Court, the court allowed the woman to continue her pregnancy as she was aware of her pregnancy and wanted to continue with her maternity. Also, the foetus was entirely fit, so it justified the court’s decision. It was the case of “V. Krishnan v. G. Rajan[2]”.

A woman should understand her role and capability to become a mother during pregnancy after the birth of her child. In “Suchita Srivastava v. Chandigarh Administration”[3], the Hon’ble Court deciphered that this should not be dependent on the considerations such as the female’s understanding of the conjugal act about her capacity to carry the foetus to its full term or discharge her pregnancy. Though she hadn’t dealt directly with the abortion for minors, the Hon’ble High Court had relied on the verdict and had adopted the “best interests” ideology to determine the permissibility of abortion for minor women. 

Conclusion

While concluding the entire discussion, it can be deciphered that MTP Act is a comprehensive Act dealing with the issue of women safety and rights of women encircling their motherhood, health and dignity. The sections laid in this Act is purely developed to ensure the legitimate frontiers for abortion of foetus and its related factors. This legislation has its sole objective to ensure, establish, and emphasize the rights of women in the land of India. Complying to the Constitution of India and other international statutes, this Act was enacted and implemented by the legislatives to regulate the unlawful abortion of the foetus and ensure the dignity of women.

References

The Constitution of India 1950.

The Medical Termination of Pregnancy Act 1971.

The Medical Termination of Pregnancy (Amended) Act 2021

[1] Bhavikaben v. State of Gujrat, AIR 2016 SCC 9142.

[2] V. Krishnan v. G. Rajan, (1994) 1 LW (Cri) 16.

[3] Suchita Srivastava v. Chandigarh Administration, AIR 2010 SC 235.