SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

woman. In 1971, the Medical Termination of Pregnancy Act, 1971 liberalised the law on
abortion as a health measure (in case of physical or mental danger to the life or health of the
woman), on humanitarian grounds (where the pregnancy has arisen out of a sex crime or in
case of a lunatic woman) and on eugenic grounds (where there is a substantial risk that the
child would suffer from disease or deformities). 672
Under this Act, an abortion may be performed where there is a risk of life or grave injury to
the physical or mental health of the woman and in case of risk of the child being born with
such physical or mental abnormalities as to be seriously handicapped. Pregnancy, alleged by
the pregnant woman to be caused by rape or by the failure of a contraceptive device used by a
married woman or her husband, is deemed to cause such mental anguish as to constitute a
grave injury to the mental health of the woman. Thus, unmarried women cannot rely on the
failure of the contraceptive device as justification for the abortion. The law also provides for
the abortion of minor or lunatic women with the written consent of a guardian. It also
provides for the consent of the pregnant woman for the abortion where she is above the age
of 18 and not mentally handicapped. The performance of an abortion in accordance with
provisions of the Medical Termination of Pregnancy Act, 1971 requires the opinions of two
registered medical practitioners or is to be performed at a prescribed place or between 12 to
20 weeks of pregnancy (or later in the case of risk to the woman’s life). The heavy reliance
on the opinions of medical practitioners places them in a position of predominance with no
mechanism for accountability, leaving the law open for abuse.
In 2002, the Medical Termination of Pregnancy Act, 1971 was amended to replace the term
‘lunatic’ with ‘mentally ill person’ who is defined as, “a person who is in need of treatment
by reason of any mental disorder other than mental retardation.” The scope of the right to
consent and who is a mentally ill person was determined by the Indian Supreme Court in
Suchita Srivastava and Anr. v. Chandigarh Administration. 673
In this case, a woman who was an inmate of a state-run welfare institution was allegedly
raped and became pregnant as a result. The government then approached the High Court for
approval of the termination of the woman’s pregnancy “keeping in mind that in addition to
being mentally retarded she was also an orphan who did not have any parent or guardian to
look after her or her prospective child.” The High Court gave the permission despite findings
of an expert body set up by the court that the woman had expressed her willingness to have
the child.
The Supreme Court, in an appeal from the High Court’s order, ascertained that the woman
was suffering from mild to moderate mental retardation and examined two questions before it
– (1) whether the termination of pregnancy could take place without her consent and (2)
whether the termination of pregnancy was in the best interests of the victim.
intending to cause a miscarriage causes the death of the woman instead. If the act was done without the woman's
consent, the punishment may extend to a life sentence as well. The fact that the person was unaware that the act
may cause the death of the woman is considered irrelevant. Acts that are intended to prevent the child from
being born alive or that cause it to die after birth are punishable with imprisonment that may extend to ten years.
The punishment prescribed for these offences may be of either description and may be accompanied with a fine.
Only in the cases of miscarriage caused voluntarily before the woman is 'quick' with the child and acts done to
prevent the child from being born alive or that cause it to die after birth can the imposition of a fine be alternated
with imprisonment.
672 See Statement of Objects and Reasons, Medical Termination of Pregnancy Act, 1971 (India)
673 MANU/SC/1580/2009
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