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Strategies for Introduction of EC in India : Expert Viewpoints

Legal and ethical aspects of Emergency Contraception
– Ms Shalini Kumar, Advocate, Supreme Court

Before I embark upon the legal aspects of Emergency Contraception, it is necessary to examine as to what EC is. According to general medical usage, pregnancy begins with the implantation of the fertilized egg in the uterine wall. The process of implantation commences at the end of the first week after fertilization. Methods that delay or inhibit ovulation, block fertilization or prevent implantation of the fertilized egg are means of preventing pregnancy. The purpose of Emergency Contraception is to prevent unwanted pregnancy. We have, therefore, to keep in mind one basic factor that Emergency Contraception is a contraceptive measure used to prevent pregnancy and not a measure used after pregnancy.

The WHO describes EC as contraceptive methods that can be used by women in the few days following unprotected intercourse to prevent an unwanted pregnancy. Abortion laws around the world recognise a clear distinction between abortion and contraception. They may do so either explicitly i.e. by narrowly defining the term pregnancy or they may do so implicitly.

Explicit abortion law includes nations like -

New Zealand, which states that "Abortion means the medical or surgical procedure carried out for the purpose of procuring the destruction or death of an embryo/foetus after implantation",

Germany, which states that "Procedure whose effect occurs before the fertilised egg settles in the uterine wall do not constitute abortion in the sense of this law",

Netherlands, which states that "Termination of pregnancy shall not mean the application of a method to prevent the nidation (implantation) of a fertilized ovum in the uterus”,

Liberia, which states that it is not applicable to "Drugs or other substances for avoiding pregnancy, whether by preventing implantation of a fertilized ovum or by any other method that operates before, at or immediately after fertilization".

The United States Government also defines pregnancy as beginning with the confirmation of implantation. At least one United States Federal Court has held that "abortion, as it is commonly understood, does not include the IUD, the morning-after pill, or for example, birth control pills".

There are a number of countries like India where the abortion laws refer to terms like ‘termination of pregnancy’ or ‘procurement of miscarriage’. Both these phrases implicitly exclude procedures carried out prior to implantation of the fertilized egg in the uterine wall. Other countries include China, France, UK, Israel and Zambia along with India.

In India, the Medical Termination of Pregnancy Act, 1971 (Act No.34 of 1971) was promulgated by Parliament to provide for the termination of certain pregnancies by registered medical practitioners.

The Medical Termination of Pregnancy Act creates no legal bar whatsoever to the use of Emergency Contraceptive.

So far as ethical aspects of EC are concerned, I would like to state that under the personal law of a number of communities, abortion has been legally prohibited. But since emergency contraceptives are to be taken prior to the implantation of the fertilized egg in the uterine wall, i.e., prior to the commencement of pregnancy, women belonging to these communities can also use EC without the fear of having contravened their respective personal laws, and they will not be guilty of doing any act contrary to their personal law.

But what I feel is that the general public is still unaware of the availability of emergency contraceptive. In fact, I had conducted an informal survey amongst my lawyer colleagues, and it was surprising to find that more than 90% had no knowledge about the existence of Emergency Contraception.

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