The Reformative And Changing Scenario Of Indian Abortion Laws

In Focus:
-Section 3 of the Medical Termination of Pregnancy (Amendment) Act 2021
-Rule 3B of Medical Termination of Pregnancy (Amendment) Rules, 2021
-2022 Supreme Court’s decision in “X vs The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr” Civil Appeal No 5802 of 2022
-2023 Delhi High Court Guidelines issued in “Minor R Thr Mother H vs State NCT of Delhi & Anr” W.P.(Crl) 221/2023

The relevant portion of Section 3 and Rule 3B post the amendment, are reproduced under:

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 twenty weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the 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 any serious physical or mental abnormality.

Explanation 1.—For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.—For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

(2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.

(2B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.

(2C) …
(2D) …
(a)…
(b) …
(c) …
(d) …

(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 woman’s actual or reasonably 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 [mentally ill person], 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.

Rule 3B:

Women eligible for termination of pregnancy up to twenty-four weeks.—

The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of subsection (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely:-

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

(e) mentally ill women including mental retardation;

(f) 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

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.” .

Supreme Court in “X vs The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr” Civil Appeal No 5802 of 2022 :

In the above decision dated 29th September 2022, the Apex court gave purposive interpretation to the law while deciding on the categories of women who can avail medical termination of pregnancy as per the MTP Act. The case involved relief sought under the MTP Act, nearing 24 weeks of pregnancy by an unmarried woman, with no means of income, abandoned by her partner, in mental agony of facing inevitable social stigma.

Supreme Court came to the aid of the Appellant by allowing the termination of pregnancy in accordance with the procedure and precautions laid under the MTP Act. The primary question before the Supreme Court was whether Rule 3B includes unmarried women, single women, or women without a partner under its ambit. To answer it, Supreme Court applied a purposive interpretation to Rule 3B and further clarified that since a subordinate legislation must be reasonable and in consonance with the legislative policy, it should be interpreted in a meaningful manner, so as to give effect to the purpose and object of the MTP Act, the mischief at which the enactment is directed and the remedy which the lawmakers have devised to address the mischief.

The MTP Amendment Act 2021 intended to extend the benefits of the statute to all women, including single and unmarried women by extending the upper limit for permissible termination of pregnancy from twenty weeks to twenty-four weeks. To corroborate one can look back at the legislative history of the MTP Act, including the speech of the Minister of Health and Family Welfare while introducing the Amendment Bill, which sheds light on the social context which necessitated the MTP Amendment Act 2021. While responding to the objections raised on the inclusion of a “woman and her partner” instead of a “married woman and her husband”, the Minister opined that in keeping abreast with the evolution of social norms, the failure of contraceptive must encompass access to abortion facilities to all women.
This interpretation is further supported by Article 14 which requires the state to refrain from denying to any person equality before the law or equal protection of laws. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14.

The Court addressing the issue in reference to explanations appended to Section 3(2) of MTP Act concerning the circumstances that can qualify as risk of injuring the mental health of the woman, on the basis of which termination of pregnancy may be carried out, clarified that the expression “mental health” has a wide connotation and means much more than the absence of a mental impairment or a mental illness. The MTP Act itself recognizes the need to look at the surrounding environment of the woman when interpreting injury to her health. Section 3(3) states that while interpreting “grave injury to her physical or mental health”, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

A change in material circumstance during the ongoing pregnancy may arise due to various reasons, such as when a married woman divorces her husband or when he dies or it may also result when a woman is abandoned by her family or her partner. It is also not unheard of for a woman to realise that she is pregnant only after the passage of twenty weeks. Women may undergo a sea change in their lives for reasons other than a separation with their partner. It is not possible for either the legislature or the courts to list each of the potential events which would qualify as a change of material circumstances. Each case must be tested with due regard to the unique facts and circumstances that a pregnant woman finds herself in.

On the issues of right to reproductive autonomy and the right to dignity of a pregnant woman, the decision emphasized that in case of an unwanted or incidental pregnancy, the burden invariably falls on the pregnant woman affecting her mental and physical health.
Article 21 of the Constitution recognizes and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical well- being also injures the dignity of women.

India having ratified the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination against Women, the decision also took into consideration India’s obligations under International law,
Article 51 of the Constitution requires the state to foster respect for international law and treaty obligations in the dealings of organised people with one another. Additionally, The Protection of Human Rights Act 1993 recognises and incorporates international conventions and treaties as part of Indian human rights law.

Guidelines issued by HighCourt in “Minor through mother Vs State NCT of Delhi” W.P.Crl 221/2023:

In this case, Petitioner a minor aged 14 years, sexually assaulted and raped, preferred a Writ Petition before the Delhi High Court through her mother under article 226 of constitution of india, praying for issuance of direction by virtue of Writ of mandamus to respondents to conduct Medical Termination of her pregnancy under MTP Act.

In addition to granting relief to the minor, the Delhi High Court passed the following guidelines to be followed by the investigating officers, in cases where pregnancy exceeds 24 weeks, :

i. At the time of medical examination of a victim of sexual assault, it will be mandatory to conduct a Urine Pregnancy Test, as in many cases, this Court has noticed that such test is not conducted.

ii. Upon the victim being found pregnant due to sexual assault, and in case the victim is major gives her consent and expresses her desire for conducting medical termination of pregnancy, the concerned investigating officer will ensure that on the same day, the victim will be produced before such Medical Board envisaged under Section 3 of MTP Act, which this Court has been informed is constituted in following four hospitals in Delhi:

(i) All India Institute of Medical Sciences (AIIMS), New Delhi,
(ii) Dr. Ram Manohar Lohia Hospital, New Delhi,
(iii) Safdarjung Hospital, New Delhi, and
(iv) Lok Nayak Jai Prakash Narayan Hospital, New Delhi.

iii. In case a minor victim of sexual assault is carrying pregnancy, upon the consent of her legal guardian and desire of such legal guardian for termination of pregnancy, the victim will be produced before such Board.

iv. In case a minor victim is examined by such Board, appropriate report will be placed before concerned authorities, so that if an order is being sought regarding termination of pregnancy from the Courts, the Court concerned does not lose any more time and is in a position to pass an order on the same expeditiously.

v. As per Section 3(2C) and 3(2D) of MTP Act, it is mandated that the State Government or Union Territory has to ensure that the Medical Boards are to be constituted in the hospitals. The Court is informed that such boards are not available in hospitals in each district, causing inconvenience to the Investigating Officers as well as to the victim at times who has to be taken for MTP and for further examination. Thus, State Government/Union Territory should ensure that such mandate of Section 3(2C) and 3(2D) of MTP Act, are complied with and such Boards are constituted in all Government Hospitals which have proper MTP Centres and it should be mandatory to have such Boards constituted before hand.