MTP ACT: LEGAL & MEDICAL TANGLE

Dr. Nikhil Datar.

MD. DNB. FCPS.FICOG. LLB. DGO. DHA

Medical Director & Gynaecologist

Cloudnine Hospitals.

Partner Lifewave Hospital LLP

Founder President Patient Safety Alliance

DR NIKHIL D DATAR

MD DNB FCPS FICOG DGO LLB DHA

•Medical Director & Consultant

Gynaecologist at Cloudnine Hospital

•Partner Lifewave Hospital LLP

•Founder President Patient Safety

Alliance

•Consultant URC-USAID

•Recipient Commonwealth Fellowship

UK

•Formerly , Head of Unit: Dr R N Cooper

Municipal Hospital

•Doctor who is fighting for women’s

rights for abortion in the supreme court

( Dr Nikhil Datar Vs Government of

India SLP)

IN COMMON LAW & CRIMINAL LAW

ABORTION IS A CRIME!

S 312 to S 317 of Indian Penal Code deal with it.

MTP ACT

Was passed by the Indian parliament in 1971.

The Shantilal Shah committee tabled its report

in 1967 on the basis of which the law was enacted

It was amended in 2002

Thus India does not adopt a pro-life ideology.

Dr,.Nikhil Datar

Notwithstanding

anything

contained in the

IPC , RMP shall

not be guilty

--Section 3 MTP

Act

Indian Penal

Code:

Sec 312 –314

Sec315-316

Dr,.Nikhil Datar

• The MTP Act carved out an exception from the provisions of the Indian Penal code.

• It provided an umbrella cover to citizens and doctors.

• If one remains within the Ambit of the Act then it is not an criminal offence.

Impact:

Thus We are no more a Pro-life country.

MTP beyond 20 weeks is not only illegal but it is a

criminal offence

GROUNDS FOR MTP (SECTION 3)

Risk to life of a woman ( No bar of weeks)

Grave injury to the physical or mental health of the mother

Rape / incest

Failure of contraception in case of a MARRIED woman

There is a substantial risk that if the child were born, shall

suffer such serious mental or physical abnormalities as to be

seriously handicapped.

MTP ACT

Section3 (2) (b) :

-There is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

-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

(This section allows the termination only till 20 weeks of pregnancy.)

Beyond 20 weeks, termination is allowed :

if immediately necessary to save the life of the pregnant woman.

SHANTILAL SHAH COMMITTEE REPORT

The word “substantial risk” is very vague ... it is

open to different interpretation by courts of law

and may lead to endless trouble for doctor

concerned. Efforts should have been made to

better define the risks.

--- Dr H N Shivpuri (1967). The member of the

Shantilal Shah committee

THE PROBLEM

If a sonography ( or genetic test) detects an

abnormality of serious nature and woman is

beyond 20 weeks, we cannot terminate the

pregnancy. Although the medical condition

remains the same the approach meted out

becomes diagonally opposite.

Thus a doctor, on one hand explains “poor

outcome” but also tells the woman, “You can’t

terminate the pregnancy. You must continue and

carry on against your wish.”

DR. NIKHIL DATAR VS GOVERNMENT OF INDIA

Known as “Niketa Haresh Mehta’s case”:

Facts: Severe multiple heart abnormality were

diagnosed in the unborn fetus when she was 24 weeks

pregnant. In spite of it being first pregnancy she was

keen to terminate the pregnancy. This would have

become an “ illegal” termination. Her doctor Dr Nikhil

Datar who believed that it was his ethical obligation to

support his patient filed the petition for change in the

law.

WHAT IS THE LOGIC OF 20 WEEKS CUT

OFF?

No logic found any where.

No mention of 20 weeks cut off in Shantilal Shah

committee report.

No mention in parliamentary debates.

IS IT UNSAFE TO ABORT BEYOND 20 WEEKS

No. Not in today’s era.

In the 1970s, there was no sonography or good

medications that could induce the process of

expulsion of foetus. The terminations were

carried out by dilatation and evacuation. This

procedure was unsafe in advanced gestation.

Today, all abortions beyond 14 weeks are carried

out medically. Which means that the process of

“expulsion of foetus” ( dilations of cervix and

uterine contractions ) is induced by medications.

So it becomes immaterial whether it is 14 or 18

or 24 weeks pregnancy.

DOES IT REQUIRE A DIFFERENT SKILL SET?

No.

Even today, Indian doctors are safely terminating

pregnancies beyond 20 weeks when there is an

“Immediate risk to the life of the woman”

For example, Eclampsia at 26 weeks or severe

bleeding at 24 weeks. Or if the foetus is already

dead in the womb.

So, no different skill set is needed. The only

difference is that the indication/ reason for the

termination has changed.

DOES FOETUS BECOME “VIABLE” AT 20

WEEKS?

Viability means capacity of independent survival.

Viability age depends on the NICU care available.

Viability in the UK is considered at 24 weeks

In the US it is considered at 22 weeks but for severely

preterm babies option of withdrawal of care is given

to parents.

In India there is no official pronouncement of age of

viability.

Standard Indian text books still consider it at 28

weeks. Most of the NICUs may consider it as 26

weeks. Very few babies born at 24 weeks have been

sent home. But all of these babies were essentially

normal babies.

WHAT IS THE INTERNATIONAL

PERSPECTIVE ON THE CUT OFF?

NUFFIELD COUNCIL ON BIOETHICS

CRITICAL CARE DECISIONS IN FETAL

AND NEONATAL MEDICINE: ETHICAL

ISSUES

The Nuffield Council on Bioethics is funded jointly by

the Medical Research Council, the Nuffield Foundation

and the Wellcome Trust.

Health economist, disability commissioner, anthropologist,

Reputed doctors from fields of Obstetrics, neonatology,

Lawyers, ethicist, Rights activists.

BALANCING RIGHTS .. RIGHT

We regard the moment of birth, which is

straightforward to identify, and usually

represents a significant threshold in potential

viability, as the significant moral and legal point

of transition for judgements about preserving life.

--- Working party

BALANCING RIGHTS … RIGHT

When the baby’s life results in a level of

irremediable suffering , there is no ethical

obligation to act in order to preserve

that life.

- Working party

BALANCING RIGHTS … RIGHT

It is in the “best interest” of the fetus to survive

or not, to avoid “intolerable life” and best quality

of life.

It is reasonable to consider parents interests

socio economic issues as well.

INTERNATIONAL FEDERATION OF

OBSTETRICS & GYNAECOLOGY

FIGO Committee for ‘The Study of Ethical Aspects of Human Reproduction and Women’s Health’

“The Committee agreed that a woman carrying a severely malformed foetus had the ethical right to have her pregnancy terminated.

The qualification ‘severe’ is used in this context to indicate

malformations that are either potentially lethal or whose nature is such that even with medical treatment they are likely, in the view of the parents and their medical advisors, to result in unacceptable mental and/or physical disability.”

SHOULD THERE BE A “CUT OFF” LIMIT ?

Some specialists in foetal medicine have reported

that the absence of an absolute cut-off in law at

24 weeks has relieved the pressure for hurried

decision making.

-- UK experience

In our experience the cut off makes women take

hasty decisions to terminate with insufficient

information. In the bargain, many normal

pregnancies are aborted based only on fear.

ABORTION LAWS OF OTHER COUNTRIES

France /Belgium: pathological condition that is

particularly serious and incurable at the time of

diagnosis.

Bulgaria: severe morphological changes or if

foetus is severely genetically harmed

China: foetus suffers from genetic disease or

defect of serious nature

Yugoslavia: probable that the child would be born

with serious congenital physical or mental defect

DOES UNBORN FOETUS HAVE A RIGHT?

According to common law, any right accrues only

when born alive.

There is no right before being born alive.

Mere “capacity of being born alive” or sign of life

does not give any legal right.

If unborn foetus were to have a legal right,

existing MTP Act would also be a violation as

sonogrpahy can show a sign of life as early as 7

weeks.

HOW DOES ONE DEAL WITH ADVANCED

GESTATION AND POSSIBILITY OF “LIVE BIRTH”?

Set guidelines exist in this regard.

It is recommended to carry out foetal reduction or

selective feticide prior to inducing process of

expulsion of foetus.

The same procedure is followed in cases of multi

foetal gestations.

In this solution (KCL) is injected under USG

guide to stop the beating heart .

(https://www.rcog.org.uk/globalassets/documents/

guidelines/terminationpregnancyreport18may201

0.pdf)

DR NIKHIL DATAR VS GOI: PRAYERS

Raise the general limit of abortion to 24 weeks

Most anomalies get detected by then

Allow abortion beyond 24 weeks when there is a

serious risk of major handicap.

Ensure strict quality control.

Allow specific hospitals to carry them.

Committee of doctors to confirm the abnormality and

counsel the woman.

The ultimate choice must lie with the woman.

EFFECTS SO FAR:

DR NIKHIL DATAR VS GOI ( APPEAL IN THE

SUPREME COURT)

GOI appointed committee under the

chairmanship of Mr Naresh Dayal (then Chief

secretary, GOI) and Dr N. K. Ganguly (then

Chairman, ICMR).

GOI seeks opinions from organizations such as

National commission for Women who affirmed

the need of amendment

GOI proposed a draft amendment to the law.

CASES AND VERDICTS:

2008: Dr Nikhil Datar Vs GOI : Pending.

2012 : Mrs X and Mrs Y Vs GOI : Pending

2016-17: series of cases filed.

Rape victim with anencephaly: Termination Allowed

Cases with anencephaly and bilateral renal agnesis :

Termination Allowed

Down’s syndrome: Not allowed.

Arnold Chiari malformation type 2 : Not allowed

CURRENT SITUATION

Ministry of Health has proposed an amendment

It is under consideration of the Cabinet.

(Letter by ministry of health and family welfare

MCH section. Z/14015/13/2017-MCH)