Legal aspects of abortion

Legal Aspects of Abortion
Presented by:
Dr. Himanshi
Department of Forensic Medicine & Toxicology

What is Abortion?
• Clinically, Abortion is the expulsion or
extraction of the fetus or embryo weighing
less than 500gms from the uterus,
spontaneous or induced.
• About 20% of all conceptions end in
abortion and 80% of these occur in 1st
trimester abortion.

Miscarriage
• It is synonymous with abortion but is usually used for termination of pregnancy in
2nd trimester.
Premature labour (Preterm labour)
• Premature labour is defined as one where the labour starts before 37th completed
week (<259 day), and after 22nd week (154 day) counting from 1st day of last
menstrual period.

Abortion contd..
• Legally, abortion is premature
expulsion of fetus from the
mother womb at any time of
pregnancy, before full term of
pregnancy is completed with or
without the consent of mother.

Types of Abortion
Types of abortion
Clinical Classification
Threatened abortion
Inevitable abortion
Incomplete abortion
Complete abortion
Missed abortion
Recurrent abortion
Septic abortion
According to method induced
Natural
Spontaneous
Accidental
Artificial
Therapeutic/
Justifiable
Criminal
According to time period
Early
Late

Various Definitions
S.No. Types Definition
1. Threatened Abortion It is the clinical entity where the process of abortion has started but has not
progressed to a state from which recovery is impossible.
2. Inevitable abortion It is the clinical type of abortion where the changes have progressed to a
state from where continuation of pregnancy is impossible.
3. Complete abortion When products of conception are expelled en masse, it is called complete
abortion.
4. Incomplete abortion When the entire products of conception are not expelled, instead a part of it
is left inside the uterine cavity, it is called incomplete abortion.
5. Missed abortion When the fetus is dead and retained inside the uterus for more than four
weeks, it is called missed abortion.
6. Septic abortion Any abortion associated with clinical evidence of infection of the uterus and
its content is called septic abortion.
7. Induced abortion Deliberate termination of pregnancy before the viability of fetus is called
induction of abortion.

Types of Abortion
S. N. Type Symptoms Uterus Size Os USG Management
1. Threatened Vaginal Bleeding +
Pain +
Corresponds
to gestational
age
Closed Live foetus
Subchorionic haemorrhage
Conservative
Mangement
2. Inevitable Vaginal Bleeding +
Pain +
Shock +
Equal or Less Open with
palpable
conceptus
Foetus Dead
Cardiac Activity Absent
Retroplacental haemorrhage
Resustication
and
evacuation
3. Incomplete Vaginal Bleeding + Smaller Open Retained Products Cavity
empty
Evacuation
4. Complete Bleeding:
Trace/Absent
Smaller Closed Cavity empty No active
intervention
5. Missed Vaginal Bleeding :
Trace
Brown Colour
Smaller Closed Blighted ovum foetus with no
cardiac activity
Evacuation
6. Septic Discharge:
Purulent
Foul Smelling
Variable/Large Open RPOC + with/without free
fluid in POD
Evacuation of
uterus/
Remove
septic foci

S. No. Artificial Abortion Definition
1. Legal/Justifiable abortion When an abortion is performed in accordance with legal
provisions.
2. Criminal abortion A criminal abortion is the induced destruction and expulsion of
the foetus from the womb of the mother unlawfully.
Artificial Abortion

The Medical Termination of Pregnancy
(MTP), 1971
• The idea of a liberalized law of abortion was first mooted by the Central Planning
Board of the Government of India is 1964 as a family planning measure.
• The Government of India in 1964 constituted the Shanti Lal Shah committee to
suggest measures for reform in the existing law of abortion.
• The recommendations of the Committee were accepted and the MTP Act was
passed in 1971 and came into operation on 1st April 1972.
• To avoid the misuse of induced abortion and to soften the rigors of the law of
abortion contained in the Indian Penal Code, the Medical Termination of
Pregnancy Act, 1971 was passed.

(MTP), 1971
• The Medical Termination of Pregnancy Act, 1971, equips women with
legal provision to abortion.
• It provides that a pregnancy may be terminated where the length of the
pregnancy does not exceed 20weeks, if two or more medical
practitioners are of the opinion
1. that the continuance of the pregnancy would involve a risk to the life of a
pregnant woman or a grave injury to her physical or mental health [as per
Section 3(2)(i)] or
2. when there is a substantial risk that if the child were born, it would suffer
from such physical or mental abnormalities as to be seriously handicapped
[as per Section 3(2)(ii)].

(MTP), 1971
• It can be pregnancy either through rape or where a pregnancy occurs are a
result of failure of any device or method used by any married woman or her
husband for the purpose of limiting the number of children.
• Explanation 1 : where any pregnancy is alleged by the pregnant woman to have been
caused by rape, the anguish caused by such pregnancy shall be presumed to constitute
a grave injury to the mental health of the pregnant woman.
• Explanation 2 : where any pregnancy occurs as a result of failure of any device or
method used by any married woman or her husband for the purpose of limiting the
number of children, the anguish caused by such unwanted pregnancy may be
presumed to constitute a grave injury to the mental health of the pregnant woman.

S.3 When pregnancies may be terminated by
Registered Medical Practitioners
1) Notwithstanding anything contained in the Indian Penal Code [45 of 1860], a
registered medical practitioner shall not be guilty of any offence under that
Code or under any other law for the time being in force, if any, pregnancy is
terminated by him in accordance with the provisions of this Act.
2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a
registered medical practitioner : -
a) Where the length of the pregnancy does not exceed twelve weeks, if such medical
practitioner is, or
b) Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty
weeks, if not less than two registered medical practitioner are, of opinion, formed in good
faith.
3) In determining whether the continuance of a pregnancy would involve such risk
of injury to the health as is mentioned in sub-section(2), account may be taken
of the pregnant woman's actual or reasonable foreseeable environment.

Places where the Pregnancy could be
terminated
Section 4 provides the place where the pregnancy could be terminated.
a) A hospital established or maintained by Government or
b) A place for the time being approved for the purpose of this Act by Government
or a District Level Committee constituted by that Government with the Chief
Medical Officer or the District Health Officer as a Chairperson of the said
Committee : Provided that the District Level Committee shall consist of not
less than three and not more than five members, including the Chairperson,
as the Government may specify from time to time.

(MTP), 1971
• U/S 2(d) of MTP Act 1971 defines "registered medical practitioner" means a
medical practitioner who possesses any recognized medical qualification as
defined in clause (h) of section 2 of the Indian Medical Council Act, 1956, (102 of
1956), whose name has been entered in a State Medical Register and who has
such experience or training in gynaecology and obstetrics as may be prescribed
by rules made under this Act.

Rule 4 of MTP Rules 2003
• The MTP Rules provides that the registered medical practitioner shall have one or
more of the following experience to training in gynaecology and obstetrics,
namely
• In the case of medical practitioner, who was registered in a State Medical Register
immediately before the commencement of the Act, experience of gynaecology and
obstetrics for a period of not less than 3 years.
• In the case of a medical practitioner, who was registered in a State Medical
Register :
a) If he has completed six months of house surgency in gynaecology and
obstetrics; or
b) Unless the following facilities are provided therein, if he had experience at
any hospital for a period of not less than one year in the practice of
gynaecology and obstetrics;

Rule 4 of MTP Rules 2003 contd..
c) If he has assisted a registered medical practitioner in the performance of 25
cases of medical termination of pregnancy of which atleast 5 have been
performed independently, in a hospital established or maintained, or a training
institute approved for this purpose by the government.
I. This training would enable the Registered Medical Practitioner to do only
first trimester terminations (upto 12 weeks of gestation)
II. For terminations upto 20 weeks the experience or training as prescribed
under sub-rules (a), (b) and (d) shall apply.
d) In the case of a medical practitioner, who has been registered in a State Medical
Register and who holds a postgraduate decree or diploma in gynaecology and
obstetrics, the experience or training gained during the course of such degree or
diploma.

MTPAct
• While the satisfaction of 1 medical practitioner is required for terminating a
pregnancy within 12weeks of the gestation period, 2 medical practitioners must
be satisfied about either of these grounds in order to terminate a pregnancy
between 12-20weeks of the gestation period.
• In all such circumstances, the consent of the pregnant woman is an essential
requirement for proceeding with the termination of pregnancy.
• This position has been unambiguously stated in Section 3(4) (b) of the MTP Act,
1971.
• Section 3(4)(a) lays down that when the pregnant woman is below eighteen years
of age or is a mentally ill person, the pregnancy can be terminated if the guardian
of the pregnant woman gives consent in writing for the same.

Exceptions
Section 3(4)(b) of
the Act.
The MTP Rules as revised by the government in 1975 have made it competent for a
woman to have her unwanted pregnancy terminated under the act without the consent of
her husband.
Section 5(1) of
the MTP Act
1. It permits a registered medical practitioner to proceed with a termination of
pregnancy when he/she is of an opinion formed in good faith that the same is
immediately necessary to save the life of the pregnant woman.
2. Notwithstanding anything contained in the Indian Penal Code the termination of
pregnancy by a person who is not a registered medical practitioner shall be an offence
punishable with rigorous imprisonment for a term not less than two years but which
may extend to seven years under the Code, and the Code shall stand modified to this
extent.
3. If pregnancy is terminated by the person at a place other than that mentioned under
Section 4 he shall be punishable with rigorous imprisonment for a term which shall not
be less than two years but which may extend to seven years.
4. The owner of the place not approved under Section 4(b) shall be punishable with
rigorous imprisonment for a term not less than two years but which may extend to
seven years.

MTP Act
• MTP Act had been amended in 2002, by way of which the word 'lunatic' was
replaced by the expression 'mentally ill person' in Section 3(4) (a) of the said
statute. The said amendment also amended Section 2(b) of the MTP Act, where
the erstwhile definition of the word 'lunatic' was replaced by the definition of the
expression 'mentally ill person' which reads as follows 'mentally ill person' means
a person who is in need of treatment by reason of any mental disorder other than
mental retardation.

MTP Act
• It may be noted that the M.T.P. Act does not protect the unborn child. Any indirect
protection it gains under the Act is only a by-product resulting from the protection
of the woman.
• An important feature of the Act is that it does not permit termination of pregnancy
after twenty weeks.
• Under the MTP Act, Abortion is legal up to the second trimester, but it is at the
absolute discretion of medical opinion.

MTP Act
• It is important to note that the MTP Act does not permit induced abortions on
demand.
• She must provide explanations that fit into the conditions listed in the MTP Act,
and it is medical opinion that has the power to decide whether the woman meets
the requirements of the Act.
• That is, expert medical opinion must certify either that the pregnancy involves a
risk to the life of the woman or would cause grave injury to her physical or mental
health, or alternatively, that there is a substantial risk that a seriously handicapped
child would be born.
• The responsibility rests with the medical practitioner to opine in good faith
regarding the presence of a valid legal indication.
• The law stated above reveals that upto 20 weeks of pregnancy, the termination of
pregnancy can be done and not beyond that. It is pertinent to mention here that for
abortion, the consent of women alone is required and not of any other person.

MTP Act
• The amended MTP Rules also recognize medical abortion methods
and allow a registered medical practitioner to provide mifepristone and
misoprostol in a clinic setting to terminate a pregnancy upto 7 weeks,
provided that the doctor has either on site capability or access to a
facility capable of performing surgical abortion in the event of a failed
or incomplete medical abortion.
• However, the drug controller of India has approved mifepristone
provision only by a gynaecologist effectively restricting access to
woman in urban areas.

Rule 5 of the MTP Rules 2003
• Every application for the approval of a place shall be in a form A and
shall be addressed to the Chief Medical Officer of the District.
• On receipt of an application under subrule (2) of Rule 5, the chief
Medical Officer of the District may verify any information contained,
in any such application or inspect any such place with a view to
satisfying himself that the facilities referred to in sub-rule (1) are
provided, and that termination of pregnancies may be made under safe
and hygienic conditions.

Validity of the MTP Act
• The validity of the MTP Act was challenged as late as 2005 in the case of
Nand Kishore Sharma v. Union of India.
• It was argued that the Act, particularly Section 3(2) (a) and (b) and
Explanations I and II to Section 3 of the Act were unethical and violation of
Article 21 of the Constitution of India.
• The Court in the case had to determine when the foetus actually comes to
life and hence if his or her right to life is violated by the said provisions. But
the Court refused to enter upon a debate as to when foetus comes to life
or the larger question touching upon the ethics of abortion, stating that
they were merely concerned with the validity of the relevant provisions of
the Act.

Validity of the MTP Act contd..
• The Court refused to comment on the attribution of status of a "person" to
the foetus and declared the MTP Act to be valid as it was in consonance
with the aims and objectives of Article 21 of the Constitution rather than
against it.
• However, the Court took an ambivalent stance when it came to the
question of whether the MTP Act would be violation of Article 21 with
regard to a foetus, saying that it was difficult to determine exactly when a
foetus comes to life and hence avoided a closure on the matter.

CASE STUDY
Dr. Nikhil Dattar & Ors. v. Union of India
• The key issue herein was whether the statutory time limit for abortion must be
increased from the currently permitted twenty weeks of gestation to twenty four
weeks or above.
• The issue involves complex questions of law, medical technologies and morality.
• In this case, the gestational period had progressed much beyond the prescribed
period and was past twenty five weeks.
• The petitioners (who were a married couple along with their medical practitioner)
pleaded that the congenital heart blockage in the heart of the foetus was detected
at a late stage and also expressed their inability in the heart of the foetus was
detected at a late stage and also expressed their inability to bear the emotional
stress and monetary burden of giving birth to a child may suffer from such severe
health problems.

Cabinet approves The Medical Termination of
Pregnancy (Amendment) Bill, 2020
• The Union Cabinet, chaired by the Prime Minister Shri Narendra Modi, has approved the Medical Termination
of Pregnancy (Amendment) Bill, 2020 to amend the Medical Termination of Pregnancy Act, 1971
1. The Bill proposes the requirement of the opinion of one registered medical practitioner
(instead of two or more) for termination of pregnancy up to 20 weeks of gestation
(foetal development period from the time of conception until birth).
2. It introduces the requirement of the opinion of two registered medical practitioners for
termination of pregnancy of 20-24 weeks of gestation.
3. It has also enhanced the gestation limit for ‘special categories’ of women which
includes survivors of rape, victims of incest and other vulnerable women like
differently-abled women and minors.
4. It also states that the “name and other particulars of a woman whose pregnancy
has been terminated shall not be revealed”, except to a person authorised in any law
that is currently in force.

Why Need of New Amendments?
• Some women realise the need to terminate pregnancy very late. In such cases, the
woman needs to seek the cumbersome legal recourse, if the pregnancy has gone over 20
weeks to terminate the pregnancy.
• However, in India, the judicial process is so slow that the women seeking termination of
pregnancy after 20 weeks crosses this legally allowed limit and she is unable to get the
abortion done. This denies the reproductive rights of women (as abortion is considered
an important aspect of the reproductive health of women).
• According to Section 3 (2) of the MTP Act, 1971 a pregnancy may be terminated by a
registered medical practitioner:
• Where the length of the pregnancy does not exceed twelve weeks, or
• Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks. In this
case, the abortion will take place, if not less than two registered medical practitioners are of opinion, that
the continuance of the pregnancy would involve a risk to the life of the pregnant woman (her physical
or mental health); or there is a substantial risk that if the child were born, it would suffer from some
physical or mental abnormalities to be seriously handicapped.
• This delays the decision-making process for termination of pregnancy.

Why Need of New Amendments?
• One of the criticisms of the MTP Act, 1971 was that it failed to keep pace with
advances in medical technology that allow for the removal of a foetus at a
relatively advanced state of pregnancy.
• The original law states that, if a minor wants to terminate her pregnancy, written
consent from the guardian is required. The proposed law has excluded this
provision.
• Thereby, the extension of limit would ease the process for these women, allowing
the mainstream system itself to take care of them, delivering quality medical
attention.

Intended Benefits of this Extension
• A number of foetus abnormalities are detected after the 20 week, often turning
a wanted pregnancy into an unwanted one.
• Usually, the foetal anomaly scan is done during the 20 -21 week of pregnancy.
• If there is a delay in doing this scan, and it reveals a lethal anomaly in the foetus, 20 weeks
period is limiting. This extension would allow termination of pregnancy in cases where some
anomaly in the foetus is reported after 20 weeks.
• The law will help the rape victims, ill and under-age women to terminate the
unwanted pregnancy lawfully.
• Significantly, the Bill also applies to unmarried women and therefore, relaxes one
of the regressive clauses of the 1971 Act, i.e., single women couldn’t cite
contraceptive failure as a reason for seeking an abortion.
• Allowing unmarried women to medically terminate pregnancies and a provision
to protect the privacy of the person seeking an abortion will bestow reproductive
rights to the women.

Issues Related to the Extension
• A key aspect of the legality governing abortions has always been the ‘viability’ of the foetus.
• Viability implies the period from which a foetus is capable of living outside the womb.
• As technology improves, with infrastructure up-gradation, and with skillful professionals driving medical
care, this ‘viability’ naturally improves.
• Currently, viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24
weeks.
• Thus, late termination of pregnancy may get in conflict with the viability of the foetus.
• The preference for a male child keeps sex determination centres in business in spite of their illegal
status. There are concerns that a more liberal abortion law can aggravate this state of affairs.
• According to 2017 data, 59 countries allowed elective abortions, of which only seven permitted the
procedure after 20 weeks like Canada, China, the Netherlands, North Korea, Singapore, the United
States, and Vietnam.

S.312 IPC Causing miscarriage.
Explanation Classification Of Offence
Whoever voluntarily causes a woman
with child to miscarry, shall, if such
miscarriage be 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 be 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.
A woman who causes herself
to miscarry, is within the
meaning of this section.
Para I: Punishment—Imprisonment
for 3 years, or fine or both—Non-
cognizable—Non-bailable: Triable
by Magistrate of the first class—
Non-compoundable.
Para II: Punishment—
Imprisonment for 7 years and fine—
Non-cognizable— Bailable—
Triable by Magistrate of the first
class—Non-compoundable.

1st Requirement
• To appreciate fully the implications of section 312 the words "voluntarily,"
"with child" "good-faith" and "quick with child" may understood first.
• Section 39 of the Penal Code defines
• "voluntarily," as "a person is said to cause and effect "voluntarily" when he
causes it by means whereby he intended to cause it, or by means which, at the
time of employing those means, he knew or had reasons to believe to be likely
to cause it."
• It should be noted that word "voluntarily" has been defined in relation to the
causation of effects and not to the doing of acts form which those effects result.

2nd Requirement
• The second requirements of section 312 is that the woman should be "with child"
or "quick with child."
• A woman is "with child" as soon as gestation begins i.e. as soon as she is
pregnant.
• 'Quickening' is perception by the mother that the movement of the foetus has
taken place or the embryo has a foetal form. It is a more advanced stage of
pregnancy.
• However, it should be noted that the 'Quickening' is not a constant, uniform and
well-marked distinction of the pregnant state.

2nd Requirement contd..
• If the abortion is caused in good faith to save the life of the pregnant woman it is
a complete defence against the criminal charge under section 312 of the Penal Code.
• The necessity to save the life of the mother does not require that miscarriage be done
only by a registered medical practitioner.
• Section 52 of the Penal Code defines "good faith".
• It lays down "Nothing is said to be done believed in 'good faith' which is not done or believed
without due care and attention."
• It merely states that an act is not done in good faith, if it is not done with due care and attentions.
• The care and caution expected in that of the person acting in the situation and not of a 'prudent
person'.
• Absence of good faith means simply carelessness or negligence.

Case Study : English case R.V. Bourne
• In an English case R.v. Bourne, a girl below the age of fifteen years became
pregnant as a result of rape committed by several soldiers.
• The accused, who was a surgeon of highest skill performed the abortion after
informing the police.
• He was charged under the Offences against the Person Act, 1861, for unlawfully
procuring the abortion.
• It was held that to procure abortion is unlawful unless it is done in good faith in
order to save the life of the mother.
• It was further held that the surgeon had not to wait till the patient was in peril of
immediate death, but it was his duty to perform the operation, if, on reasonable
grounds, and with adequate knowledge, he was of the opinion that the probable
consequence of the continuance of the pregnancy would be to make patient a
physical and mental wreck.
• It was also ruled that the burden of proof to disprove the good faith of the surgeon
will be on the prosecution. The surgeon was found not guilty.

Case Study
Emperor v. Mulia, 17 A.L.J. 478; (1919) 20
Cr. L. J. 395.
• Where the pregnant woman throws herself into a well because she could not
endure the travails of labour pain, it was held by the Allahabad High Court that
she could not be convicted of the offence under section 312 of the Penal Code
because she intended to put and end to her own life and not to cause miscarriage
which resulted from her act.

S.313 IPC
Causing miscarriage without woman’s
consent
Whoever commits the offence defined in the last
preceding section without the consent of the
woman, whether the woman is quick with 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.
CLASSIFICATION OF OFFENCE
Para I: Punishment—Imprisonment for life, or
imprisonment for 10 years and fine—Cognizable—
Non-bailable—Triable by Court of Session—Non-
compoundable.

Section 313 IPC
• Section 313 of the Indian Penal Code makes it punishable to cause miscarriage
without the consent of the woman.
• The gravity of the offence is enhanced.
• Section 90 of the Penal Code states what cannot be deemed to be consent.
• No consent can be given under fear of injury or misconception of fact, or
under unsoundness of mind or in intoxicated state, or by a child below twelve
years of age unless the circumstances are otherwise.

Section 313 IPC
• Consent may be express or implied. It may not be necessary that it should be
expressly worded with accuracy.
• If the woman knowingly takes an abortifacient, she impliedly consents for
abortion.
• Unlike S.312 IPC, S.313 IPC draws no distinction between "woman with child"
and "woman quick with child", and punishes only the person who causes
miscarriage.
• The prosecution has to prove all the ingredients of the offence of section 312 and
also the absence of the women's consent.
• The offence is cognizable, not bailable, not compoundable and is triable by the
court of sessions.

S.314 IPC
Death caused by act done with intent to
cause miscarriage.
Explanation CLASSIFICATION OF OFFENCE
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
may extend to ten years, and shall also be liable
to fine;
If act done without woman’s consent- And if the
act is done without the consent of the woman,
shall be punished either with imprisonment for
life, or with the punishment above mentioned.
It is not essential to this
offence that the offender
should know that the act
is likely to cause death.
Para I: Punishment—Imprisonment
for 10 years and fine—Cognizable—
Non-bailable—Triable by Court of
Session—Non-compoundable.
Para II: Punishment—Imprisonment
for life, or as above—Cognizable—
Non- bailable—Triable by Court of
Session—Non-compoundable

S.314 IPC
• When an accused intending to cause only miscarriage to a woman with child
causes her death, he is convicted under section 314 of the Penal Code.
• The offence is aggravated if the accused has acted without the consent of the
woman.
• In order to render the accused liable it is sufficient to prove that the act was done
to cause miscarriage.
• It is immaterial whether the act done was or was not intended or known to cause
death. Since the accused did the act which was illegal, he must be liable, to all its
consequences.

S.314 IPC
• An accused administered a poisonous drug to a woman to procure miscarriage
which resulted in her death.
• But it was not proved that he knew that the drug was likely to cause death.
• The accused was, therefore, not convicted for murder but under S.314 IPC.
• In another case, when it remained uncertain whether the deceased was murdered
or had died from the effects of an attempt to cause the miscarriage against her will
it was held that the accused could be convicted either under section 302 for the
offence of Murder or under section 314.

S.315 IPC
Act done with intent to prevent child being
born alive or to cause it to die after birth.
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, 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.
Punishment: Imprisonment for 10 years,
or fine, or both
Cognizable
Non- bailable
Triable by Court of Session
Non-compoundable.

S.315 IPC
• The provisions of section 315 and 316 though deal with the acts akin to
miscarriage, in main, penalise causing death to born or unborn child at the time of
birth.
• The act resulting in death of the child after its birth, is not, strictly speaking, an act
of causing miscarriage.
• In some situations it may be only a technical offence, in other cases it may be a
case of deliberate infanticide to prevent an inheritance, or other civil rights
accruing to the born child.
• The offence committed under this section is of foeticide of the fully developed
foetus in case the child is killed before its birth, or infanticide when death is
caused immediately after birth.

S.316.
Causing death of quick unborn child by act
amounting to culpable homicide.
Illustration Classification of offence
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.
A, knowing that he is likely to cause
the death of a pregnant woman, does
an act which, if it caused the death of
the woman, would amount to
culpable homicide.
The woman is injured, but does not
die; but the death of an unborn quick
child with which she is pregnant is
thereby caused.
A is guilty of the offence defined in
this section.
Punishment—Imprisonment
for 10 years and fine—
Cognizable—Non-bailable—
Triable by Court of Session—
Non-compoundable.

S.316 IPC
• The accused under this section need not necessarily cause miscarriage or intend to
kill the child in womb.
• However, if the accused does an act likely to cause its death, though neither
intended nor desired, he would be guilty under this section.
• In other words where an act or omission is of such a nature and done under such
circumstances as would constitute the culpable homicide, if the sufferer were a
living person, if done to a quick unborn child, whose death is caused by it, will be
punishable under this section.
• The offence under section 316 is committed where the pregnancy has advanced
beyond the stage of quickening and where the death is caused after the
quickening and before the birth of the child.

Section 316 IPC
• The ingredients of the offence are
1. that the woman was quick with the child;
2. that the accused did an act to cause the death
3. that the circumstances under which such act was done were such as to make
the accused guilty of culpable homicide, if death had been caused;
4. and that such act did cause the death of the quick unborn child.

S.317.
Exposure and abandonment of child under
twelve years, by parent or person having care
of it.
Explanation Classification of offence
Whoever being the father or mother of a
child under the age of twelve years, or
having the care of such child, shall
expose or leave such child in any place
with the intention of wholly abandoning
such child, shall be punished with
imprisonment of either description for a
term which may extend to seven years, or
with fine, or with both.
This section is not intended to
prevent the trial of the offender
for murder or culpable homicide,
as the case may be, if the child die
in consequence of the exposure.
Punishment—Imprisonment
for 7 years, or fine, or both
Cognizable
Bailable
Triable by Magistrate of the
first class
Non-compoundable.

318. Concealment of birth by secret
disposal of dead body.
Whoever, by secretly burying or otherwise disposing of
the death body of a child whether such child die before or
after or during its birth, intentionally conceals or endeavours
to conceal the birth of such child, shall be punished with
imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
Punishment—Imprisonment for 2 years, or
fine, or both
Cognizable
Bailable
Triable by Magistrate of the first class
Non-compoundable.

References
• Textbook of Forensic Medicine and Toxicology By Dr. Anil Agrawal
• Forensic Medicine and Toxicology by Dr. JB Mukerjee
• DC Dutta Textbook of Obstetrics
• Medical Termination of Pregnancy act, 1971
• Medical Termination of Pregnancy Amendment Bill, 2020

Legal aspects of abortion

Recommended

Recommended

More Related Content

What's hot

What's hot (20)

Similar to Legal aspects of abortion

Similar to Legal aspects of abortion (20)

Recently uploaded

Recently uploaded (20)

Legal aspects of abortion