Medical Jurisprudence - Abortion

3/23/13 Medical Jurisprudence - Abortion

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Q. Explain different types of Abortion. When is abortion permissible and when is itnot? Discuss criminal liability of persons involved in illegal abortion - doctor, womanundergoing abortion, persons encouraging illegal abortion.

Abortion An abortion is the termination of a pregnancy by the removal or expulsion from the uterus of a fetus/embryo, resulting in orcaused by its death. An abortion can occur spontaneously due to complications during pregnancy or can be induced, inhumans 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 electiveabortion. The term abortion most commonly refers to the induced abortion of a human pregnancy, while spontaneousabortions are usually termed miscarriages.

Kinds of AbortionAbortion can be classified in several ways.

1. Legal and Illegal2. Spontaneous and Induced3. Surgical and Non Surgical4. Therapeutic and Elective5. Voluntary and Involuntary

When is abortion permissible

Detailed provisions of legal abortion are given in Medical Termination of Pregnancy Act, 1971. Section 3 to 5 of this actspecify 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 notbe guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated byhim 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 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 tworegistered medical practitioner 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 herphysical 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 tobe seriously handicapped.

Explanation 1 - Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish causedby 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 orher husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may beresumed 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 mentionedin 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 ofeighteen 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 thepregnant woman.

Section 4 - Place where pregnancy may be terminated - No termination of pregnancy shall be made in accordance withthis 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 much of the provisions of sub-section (2) of section 3 as relate to the length of thepregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of apregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that he termination ofsuch 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 aregistered medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be lessthan 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 rigorousimprisonment 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 rigorousimprisonment 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 administrativehead or otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where thepregnancy 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 to315 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 miscarriagebe not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of eitherdescription for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shallbe punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable tofine.

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 precedingsection without the consent of the woman, whether the woman is quick with child or not, shall be punished withimprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also beliable to fine.

Section 314 - Death caused by act done with intent to cause miscarriage - Whoever, with intent to cause the miscarriageof a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of eitherdescription for a term which may extend to ten years, and shall also be liable to fine; and if the act is done without theconsent 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 thebirth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die afterits 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 be



not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either descriptionfor 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 punishableby 2 to 7 yrs of rigorous imprisonment.

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Medical Jurisprudence - Abortion