The concept of miscarriage or abortion is considered unethical all around the world. With the United States passing the anti-abortion law, many people were for and against this move. While some believe that abortion is murder, others believe that it is a woman’s reproductive right.
These two opinions are prevalent in India, too and India being a religiously mindful country, some also view abortion as a religious sin.
The general definition for this term has been given by various medical jurists. One such definition is the “expulsion of the ovum or embryo from the uterus after conception”. The period within which miscarriage or abortion may be done differs for different countries around the world.
As per the Indian laws, the term ‘miscarriage’ or ‘abortion’ has not been used nor defined. Rather, the term ‘medical termination of pregnancy’ is used and there is an interesting reason behind this. This term is intended to protect the doctors from conducting the termination of the pregnancy, rather than to grant and protect women, their reproductive rights. Although this may sound problematic, doctors have faced backlash for advocating abortion for their patients.
While the practices of miscarriage and abortion have been frowned upon by citizens, ‘medical termination of pregnancy’ has softened the blow. This is because the practice focuses on the termination of pregnancies under limited circumstances.
However, it is important to note that miscarriage is also covered under Indian law. The Indian Penal Code, 1860, criminalizes miscarriage with or without the consent of the woman carrying the child.
The main focus of this article would revolve around marriage and injuries caused to a foetus in the womb as well as conditions under which pregnancies can be medically terminated.
Brief History and Background
Until 1971, the Indian Penal Code, 1860 was the only legal provision available for women regarding miscarriage and abortion. In 1964, the Central Family Planning Board recommended the Ministry of Health to legalize abortion. For this purpose, the Shantilal Shah Committee was formed, and with its report submitted 1966, the Government passed the Medical Termination of Pregnancy (MTP) Act, 1971.
This Act was passed to prevent illegal abortions. However, this has been viewed to be problematic as it does not grant women the right to choose when they can go through with the abortion and places a discretionary power on the Government to decide.
In simple terms, the MTP Act allows for termination of pregnancy under limited conditions, and such termination done beyond the limited conditions would amount to a criminal offence under the Indian Penal Code, 1860.
Many believe that while the concept of termination of pregnancy is protected under Law, the conditions for such are limited and women are not protected from making free choices. The current MTP Act contradicts the proposal of the Shantilal Shah Committee for comprehensive abortion care for women. The current law protects doctors over women with its provisions. The phrase ‘Notwithstanding anything contained in the Indian Penal Code’ as used under the MTP Act, shows that this Act protects doctors from any kind of criminal prosecution and strays away from the comprehensive care for women.
It is also important to note that the Act places a choice on doctors and not on women as to whether they can have an abortion, which has been viewed as a lack of autonomy on women to decide what they can and cannot do with their own bodies.
The right to abortion has also been viewed by Courts as a fundamental right and the landmark judgment of Roe v. Wade[i] reiterated the same, stating that the right to abortion is fundamental liberty protected by the 14th Amendment of the Constitution. This case has been a precedent for various judgments passed by the Indian Courts, including Suchita Srivastava v. Chandigarh Admin[ii], in which the Supreme Court held that reproductive rights are to be protected under the fundamental right to privacy guaranteed under the Constitution and the autonomy must subsist on the woman to decide whether to bear a child or not, and the state must not intervene in such matters.
Before analyzing the flaws in the existing laws surrounding abortion, it is important to know the current provisions available for abortion and the criminal action that could entail in case of illegal miscarriage.
Concept of Miscarriage
The National Health Portal of India has categorized abortions and has provided definitions for the same. One of the categories under this portal is early pregnancy loss, which is also known as spontaneous abortion or miscarriage. It is defined as a “non-induced embryonic or fetal death or passage of products of conception before 20 weeks of gestation”.
It is important to note here that abortion and miscarriage are two concepts. It can be understood that all miscarriages are abortions but not all abortions are miscarriages. Miscarriage is a type of abortion that is not induced and is done due to hormonal or biological complications.
The National Health Portal has listed down various causes for miscarriages, including hormonal problems, maternal infections, maternal health problems, autoimmune disorders, uterine abnormalities, problems of the placenta or incompetent cervix. When doctors detect any symptoms at an early stage which may lead to the above-mentioned causes of miscarriage, an induced abortion would be suggested so as to protect the life of the mother. Apart from this, the portal also provides for the diagnosis, management and prevention of miscarriages.
The Indian Penal Code, 1860 deals only with miscarriages, which is different from induced abortion or medically terminated pregnancies under the MTP Act.
Legal Provisions regarding Miscarriages
Indian Penal Code
The Indian Penal Code, 1860 provides for criminal punishment for causing miscarriages, without and without the consent of the woman bearing a child, for causing the death of such woman while causing miscarriage, for preventing a child from being born alive or for causing its death after birth and for causing such death by act amounting to culpable homicide.
Section 312 of the Code[iii] states that “Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman is quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Explanation.—A woman who causes herself to miscarry, is within the meaning of this section.”
It can be understood from this Section that the miscarriage can be of 2 forms; causing a miscarriage of a woman bearing a child and causing a miscarriage of a woman who is quick with child. For understanding, a woman is said to be quick with a child, when the movement of the foetus can be felt inside the womb. This movement can be felt at different periods for different women, but usually, it occurs within 15-16 weeks of conception.
The first part of this Section deals with women carrying a child. Whoever causes such a child to be miscarried, they shall be liable to imprisonment for a term up to 3 years or liable to fine or liable to both. The second part states that where a quick child is miscarried, they shall be punishable with imprisonment of up to 7 years and with a fine.
It is important to note, the act of causing miscarriage must be voluntary and must not be done in good faith. Such an act is said to be done in good faith only for the purpose of saving the life of the woman.
The Explanation under this Section explicitly mentions that a woman who causes herself to miscarry the child she bears is also liable to punishment under this Section.
Section 313 of the Code[iv] states that “Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with a child or not, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
The essence of this Section is in connection with Section 312 but without the consent of the woman bearing such a child. It does not distinguish between a woman carrying a quick child and who is not. The punishment under this Section deals with imprisonment of up to 10 years of life as well as with fine.
The basic essentials, that the act must be voluntary and done without good faith, will apply to this Section, as well.
Section 314 of the Code[v] states that “Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
if the act is done without the woman’s consent.—and if the act is done without the consent of the woman, shall be punished either with 3[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.”
For simple understanding, the first part of this Section states that any person, who only intended to cause the miscarriage of a woman with a child, with the consent of such woman, does any action that leads to the death of the woman, would be liable to imprisonment of up to 10 years and fine. However, if the miscarriage was caused without the consent of the woman and some act leads to the death of such a woman, the person causing such marriage and such death would be liable to be imprisoned for life or for up to 10 years.
It is important to note that the person need not know that their act is likely to cause the death of such a woman. The presence or absence of this knowledge would not matter under this Section and they would be liable to persons irrespective of this knowledge.
Section 315[vi] of the Code states that “Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its 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 description for a term which may extend to ten years, or with fine, or with both.”
This Section deals with any act that might directly affect the child from being born alive, also known as still-birth, or any action that might cause the death of the child after its birth. This means that the child is said to be dead during or after its birth and not when it is the womb of its mother, as in the case of miscarriage. Whosoever is guilty of an offence under this Section shall be liable to be imprisoned for up to 10 years or fine or both.
Section 316[vii] of the Code states that “Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
This section specifically deals with the death of a quick, unborn child. As already mentioned, an unborn child is a child whose movements have begun inside the womb of the mother. Under this Section, it is mentioned that whoever does any act and causes the death of someone and would be guilty of culpable homicide, and by doing the same act, causes the death of a quick, unborn child, has committed an offence under Section 316. They shall be liable to imprisonment of 10 years as well as fine.
These are the provisions available for the criminal offences of miscarriage. Later in this article, the positive and negative aspects of these provisions shall be discussed.
The Medical Termination of Pregnancy Act, 1971 is an Act that provides for the termination of certain pregnancies by registered medical practitioners and for related matters. It is absolutely necessary for registered, medical practitioners with a recognized medical qualification[viii], whose names are registered at the State Medical Register and who have experience under gynaecology and obstetrics[ix], to conduct termination of pregnancies.
Section 3[x] of the Act specifies that the above-mentioned practitioners shall not be guilty of the offences mentioned under the Code or any other law, with respect to termination of pregnancies, if such termination is done in compliance with the conditions mentioned under the Act. This provides protection of practitioners against the offences of miscarriages as mentioned in the Code. This is one of the reasons that various activists and advocates believe that this Act inclines towards the protection of doctors, rather than protecting women’s reproductive rights.
Section 3(2) lays down the following conditions for termination of pregnancies:
- When there is danger or risk to life or risk of mental or physical health of the pregnant woman, including contraceptive failure.
- When the pregnancy arose out of rape or sexual intercourse with a mentally-ill woman.
- When there would be substantial risks to the child and if born, the child would suffer from abnormalities.
The termination can be done under the above-mentioned conditions only with the advice of a medical practitioner. This has been challenged as it places a final decision only on the doctors to move ahead with the termination, and not on the woman who may wish to terminate the pregnancy.
In addition, it has been mentioned that the termination of the pregnancies cannot be done without the consent of the woman. However, this had been challenged in the case of Suchita Srivastava[xi] in the Supreme Court as to how a mentally retarded woman would be able to give consent to termination if such termination cannot be done without the consent of the woman.
Constitution of India
The Indian Constitution is silent as to the right to abortion but some Judges do believe that this right is available in accordance with Right to Life[xii].
In the case of Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors.[xiii], the Supreme Court upheld the judgment of the Suchita Case and held that right to privacy is a fundamental right and right to abortion would fall under this purview and hence, reproductive rights are to be protected by the State.
A similar stance was taken in the case of Devika Biswas v. Union of India[xiv], in which the Supreme Court was the opinion that a woman’s reproductive autonomy is their fundamental right and the decision to have or not have a child is hers alone and must be devoid of state intervention.
As already mentioned, the current miscarriage and abortion laws in India do not guarantee totally protect the reproductive rights of women, contrary to the precedents which have established that a woman can decide whether or not to have a child and the state must not intervene in matters of this right.
Section 312 of the Code criminalises a woman’s choice to induced abortion and as per the MTP Act, it protects doctors from this Code. The fact that a doctor has a right over a woman’s body than the women herself becomes problematic and in today’s world, where women are fighting for rights over their bodies, this criminalization must not exist. Any miscarriage or abortion must be criminalized only when done against the consent of the woman doing so, and where death is caused while causing miscarriage.
Giving autonomy to medical practitioners regarding a woman’s reproductive rights would go against a woman’s right to life and her right to privacy.
With respect to the rights of an unborn child, the English Court, in the case of De Martell v. Merton and Sutton HA[xv], held that if the injury is caused to an unborn child, there is no breach of legal duty since the child does not exist. Therefore, under law and logic, no harm can be caused to someone before their existence. Rights should be given to the woman over an unborn child.
Another issue that can be pointed out from the MTP Act is the fact that a woman must continue with her pregnancy, even if she does not have the economic means to do so. This places a burden on the woman, especially single mothers, to continue with her pregnancy and to take care of her child after its birth, although she may not have economic or physical means to do so. Therefore, this is another reason why the right to abortion must lie with the women and not only on the medical practitioners.
It is a well-known fact that India is a largely patriarchal society and gives preference to its men over women. Despite this, Indian laws have begun to become progressive towards women’s rights and have understood the years of oppression women have had to face and new laws aim to end this.
At the same time, Indian laws do not totally guarantee and protect women’s rights. There are still many laws that are backward, and which do not aim to address the issues faced by women.
One such law is the abortion and miscarriage law. As already mentioned, miscarriage is criminalised in India, irrespective of whether or not, the woman wishes for such induced abortion. When Judicial precedents prove otherwise, the Indian laws continue to criminalise induced abortions, especially for the women.
The Indian laws must begin to be in consonance with Supreme Court judgments and must aim to guarantee women the right to decide whether to have a child or not and to ensure that States respect these rights of the women. The States must only safeguard the reproductive rights of the women and must not intervene in decisions regarding these rights.
The Indian Legislature must aim to make abortion and miscarriage laws in accordance with the reproductive rights of the women. The Constitution of India places a right on women to reproductive decisions, as established in various Supreme Court Judgements and it is in the interest of the citizens of this country, especially its women, that the Legislature recognizes these rights.
The MTP Act must be modified to place autonomy on the women, as well, regarding the termination of pregnancies and must include monetary and economic reasons for termination of pregnancies. Placing absolute authority on medical practitioners regarding termination goes against the basic right to life guaranteed under Article 21 of the Indian Constitution.
In addition, the Indian Penal Code must also be modified to exclude women, carrying a child, against the crimes of miscarriage. It must only include those who cause miscarriages against the will of the women and must not criminalize women for taking a decision regarding the child they carry.
It has also been established that an unborn child does not have rights and therefore, women’s reproductive rights must be given priority over an unborn child’s rights.
For the above-mentioned reasons, it is necessary for abortion and miscarriage rights to be more progressive and must recognize women’s reproductive rights.
[i] Roe v. Wade, 410 U.S. 113 (1973). [ii] Suchita Srivastava v. Chandigarh Admin, (2009) 9 SCC 1. [iii] Sec. 312, Indian Penal Code, 1860. [iv] Sec. 313, Indian Penal Code, 1860. [v] Sec. 314, Indian Penal Code, 1860. [vi] Sec. 315, Indian Penal Code, 1860. [vii] Sec. 316, Indian Penal Code, 1860. [viii] Sec. 2, Indian Medical Council Act, 1956. [ix] Sec. 2, Medical Termination of Pregnancies Act, 1971. [x] Sec. 3, Medical Termination of Pregnancies Act, 1971. [xi] Supra note. ii. [xii] Art. 21, Constitution of India. [xiii] Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors., (2017) 10 SCC 1. [xiv] Devika Biswas v. Union of India, (2016) 10 SCC 726. [xv] De Martell v. Merton and Sutton Health Authority, (1992) 2 FCR 832.
Madhumitha hails from Symbiosis International University and she spends most of her time Reading, Swimming and Playing Table-Tennis. Her Interest area lies in Criminal Law. For any clarifications, feedback, and advice, you can reach her at firstname.lastname@example.org