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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)
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