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Law on abortion

Can I get an abortion in India?

Yes, it is possible for you to get an abortion under the Medical Termination of Pregnancy Act, 1971 if your pregnancy is under 20 weeks. However, it is subject to several conditions and your ability to get an abortion will depend on the opinion of the doctor. The law requires the doctor to assess if these conditions are fulfilled – only then are they legally allowed to perform an abortion. Conducting an abortion without fulfilling the conditions is considered a crime.

What are the conditions which are required to be fulfilled in order to obtain an abortion?

Under the law (section 3 of The medical termination of pregnancy Act 1971), the doctor can perform an abortion in the following situations:

  • if the pregnancy would be harmful to your life or physical or mental health. The doctor will need to consider your circumstances to figure out if the pregnancy will harm your mental health. They also need to look at your future (as a reasonable person would) to figure out the effects of the pregnancy.
  • if there is good chance that the child would suffer from physical or mental abnormalities which would leave him or her seriously handicapped.

Who needs to be satisfied that the conditions have been fulfilled to get an abortion?

  • If the pregnancy has not exceeded 12 weeks (first trimester), only one doctor needs to be satisfied that the conditions have been fulfilled.
  • If the pregnancy has exceeded 12 weeks and is below 20 weeks (first trimester), two doctors need to be satisfied that the conditions have been fulfilled.
  • The gestation period does not matter if doctor feels that an immediate abortion must be conducted to save your life.
  • The doctor who determines if it is necessary to perform an abortion and performs it needs to be a ‘registered medical practitioner’ under the law.

Can I get an abortion because the sex of the foetus is female?

It is a crime to get an abortion because you or your family do not want a girl child. If you get an abortion after you come to know the sex of the foetus, you can be punished with jail time of up to three or seven years depending on the stage of pregnancy (Section 312 IPC 1860). However, please remember that an abortion is otherwise legal (subject to conditions mentioned in questions 2 and 3) – it is abortion which follows sex-determination that is unlawful.

It is a crime to conduct any kind of test or procedure (like an ultrasound) to try and make sure the foetus is of a particular sex or to check the sex of your foetus under another law called the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. Any procedure or technique performed on a man or woman for the purpose of sex-selection is illegal. Any procedure or technique performed on a woman for the purpose of sex-determination is illegal. Since, abortion of female foetuses is high in India, both you and your doctor can be punished for conducting a diagnostic test to figure out the sex of the child. You are only allowed to get such tests or procedures in order to detect certain abnormalities of the foetus or if you are above 35 years of age or if you suffer from certain health specific problems.

Who can be punished for committing an illegal abortion?

You should know that an abortion which does not fulfil the conditions is considered a crime under the general law on crimes in India.

  • Abortion of under 4 to 5-month pregnancy - The punishment for getting an illegal abortion is jail time of up to 3 years and/or fine. Both you and your doctor are considered to have committed a crime unless it was done in good faith to save your life.
  • Abortion of over 5-month pregnancy - If abortion takes place when you can sense the movement of the foetus, the punishment is higher. This is generally known as quickening and usually takes place between 17 and 20 weeks. Both you and your doctor can be punished with jail time of up to seven years and fine unless it was done in good faith to save your life.
  • Abortion without your consent - If anyone else forces you to have an abortion or performs one without you agreeing to it, the punishment is jail time of up to 10 years and fine.
  • Abortion resulting in death ­ - If the patient dies because of a botched abortion or an abortion carried out by an unskilled person, the doctor who conducted the operation can be punished with jail time of up to 10 years and fine. If the abortion was conducted without the patient’s permission, the punishment is jail for life.
  • Intentionally causing the death of a foetus can also be prosecuted under other provisions of the Indian Penal Code, 1860 under which the punishment can extend up to 10 years.

I am pregnant because contraceptives did not work properly. Can the doctor deny performing an abortion?

If you are a married person, you should be able to get an abortion if contraceptives did not work and you did not want to have more children. The doctor has a legal duty to assume in such cases that the pregnancy affects your mental health gravely.

The same legal duty does not unfortunately apply to unmarried women. However, please remember that this does not mean that you cannot get an abortion. If the doctor forms an opinion that your mental health will suffer if the pregnancy continues, he or she can perform the abortion.

Do the doctors need my permission to carry out an abortion?

The doctors have a duty to get your consent in order to perform the abortion. If you are below 18 (a minor) or a person with mental illnesses, the doctors have a duty to get your guardian’s permission as well. If a doctor performs an abortion without your consent, he or she can be punished with a jail term extending up to 10 years and fine.inspection.

Source: Nyaaya

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