CHAPTER 4

LEGAL PROVISIONS IN MIDWIFERY PRACTICE IN INDIA

INC/MOH AND FW REGULATIONS

The ‘Midwifery Services Initiative’ aims to create a cadre of Nurse Practitioners in midwifery who are skilled in accordance with ICM competencies, knowledgeable and capable of providing compassionate women-center, reproductive, maternal and newborn healthcare services and also develop an enabling environment for integration of this cadre into the public health system, in order to achieve the SDGs for maternal and newborn health.

Definition

Objectives of Midwifery Service Initiative

• To provide access to quality maternal and newborn health services and promote natural birthing by promoting a positive child birthing experience.
• To promote respectful maternity care throughout pregnancy and childbirth.
• To identify, manage, stabilize and/or refer as needed, women and their newborns experiencing complications.
• To decongest higher levels of healthcare facilities.

Development of New Guidelines

• To propose an alternative model of service provision for strengthening reproductive, maternal and neonatal health services in India.
• Introduction of the midwifery model of care for normal births in midwifery-led units of public health facilities.
• Serve as a cost-effective and efficient model to provide quality care and reduce over-medicalization.

• To support various states in the roll out of midwifery services. These guidelines will cover all areas related to the midwifery programme such as education, regulation, human resources and career progression, support structures, operational models in aspirational districts and urban areas, and monitoring and research priorities.

ICM CODE OF ETHICS

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Definition

A midwife is a person who has successfully completed a midwifery education programme that is based on the ICM Essential Competencies for Basic Midwifery Practice and the framework of the ICM Global Standards for Midwifery Education is recognized in the country where it is located; who has acquired the requisite qualifications to be registered and/or legally licensed to practice midwifery and use the title ‘midwife’; and who demonstrates competency in the practice of midwifery.

—International Confederation of Midwives

International Confederation of Midwives: Code of ethics

Midwifery Relationships

• Midwives support the right of women/families to participate actively in decisions about their care.
• Midwives empower women/families to speak for themselves on issues affecting the health of women and families within their culture/society.
• Midwives support and sustain each other in their professional roles, and actively nurture their own and others’ sense of self-worth.

• Midwives recognize the human interdependence within their field of practice and actively seek to resolve inherent conflicts.
• Midwives have responsibilities to themselves as persons of moral worth, including duties of moral self-respect and the preservation of integrity.

Practice of Midwifery

• Midwives encourage the minimum expectation that no woman or girl should be harmed by conception or childbearing.
• Midwives use up-to-date, evidence-based professional knowledge to maintain competence in safe midwifery practices in all environments and cultures.
• Midwives respond to the psychological, physical, emotional and spiritual needs of women seeking healthcare, whatever their circumstances (non-discrimination).

Professional Responsibilities of Midwives

• Midwives hold in confidence client information in order to protect the right to privacy, and use judgment in sharing this information except when mandated by law.
• Midwives are responsible for their decisions and actions, and are accountable for the related outcomes in their care of women.
• Midwives participate in the development and implementation of health policies that promote the health of all women and childbearing families.

Advancement of Midwifery Knowledge and Practice

• Midwives ensure that the advancement of midwifery knowledge is based on activities that protect the rights of women as persons.
• Midwives develop and share midwifery knowledge through a variety of processes, such as peer review and research.
• Midwives contribute to the formal education of midwifery students and ongoing education of midwives.

Ethical Concepts and Ethical Issues in Maternal Care

• Patient’s Autonomy

Issues

The right to life, the right to quality services, the right to get information, respect for patient’s right.

• Advocacy

Issues

Provide beneficence, informed consent, advocate patient’s rights, exploiting women.

• Justice

Issues

Priority service, equal health services, mental health women.

• Confidentiality

Issues

Maintain patient confidentiality and avoid disclosing illness, infectious diseases, or foetal abnormalities.

• Beneficence

Issues

Quality of care, promote a good care, Beneficence of intervention.

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• Nonmaleficence

Issues

Protect the women and fetus, not to do harm, neglected

care that impaired fetus development.

Neonatal Ethical Issues

• Implications of Advance Directives for Nursing Clinical Practice
• Implications of Decision-Making at the Time of Birth for Nursing Clinical Practice
• Implications of Using Developmental and Family Centered Care in the NICU for Nursing Clinical Practice

• Critical Care Decisions in Fetal and Neonatal Medicine: Ethical Issues
• Deliberately Ending Life
• Decision Making
• Decisions About Whether to Start Intensive Care in
• Extremely Premature Babies
• Withdrawing Treatment and Palliative Care

ADOPTION LAWS

Definition

Adoption is the legal and permanent transfer of parental rights from a person or couple to another person or couple. Adoptive parents have the same responsibilities and legal rights as biological parents.

Persons who can adopt the child

Adoption Eligibility Criteria

• A child in India can be adopted by an Indian citizen, NRI or a foreign citizen. The procedure of adoption is different for all three.
• Any person is eligible to adopt irrespective of their gender or marital status.
• In case a couple is adopting a child, they should have completed at least two years of stable marriage and should have a joint consensus for the adoption of the child.
• The age difference between the child and the adoptive parents should not be less than 25 years old.

Conditions to be Fulfilled by Parents

• The prospective adoptive parents need to be physically, emotionally and mentally stable.
• They should be financially stable.
• The prospective parents should not be suffering from any life-threatening diseases.
• Couples with three or more kids are not considered for adoption except in case of special-needs children.
• A single female can adopt a child of any gender.
• However, a single male is not eligible to adopt a girl child.
• A single parent cannot be more than 55 years of age.
• A couple cannot have a cumulative age of more than 110 years.

Laws governing adoption

Hindu Adoption and Maintenance Act of 1956

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• An adoptive parent is allowed to ask for a child, as per her preferences (age, gender, skin colour, religion, specific features and health conditions).
• Single parent or married couples are not permitted to adopt more than one child of the same sex.

Procedure for Adoption of a Child in India

Step 1- Registration

Step 2- Home Study and Counselling

Step 3- Referral of the Child

Step 4- Acceptance of the Child

Step 5- Filling of Petition

Step 6- Pre-Adoption Foster Care

Step 7- Court Hearing

Step 8- Court Order

Step 9- Follow Up

Guardian and Wards Act of 1890

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• A foreign national adopts an Indian child under the provisions of the Guardian and Wards Act, 1890.
• The adoptive parent is only the guardian of the child until she reaches 18 years of age.
• An adoptive parent is allowed to ask for a child, as per her preferences (age, gender, skin colour, religion, specific features and health condition).
• Foreign citizens and NRIs are supposed to adopt according to the adoption laws and procedures in the country of their residence.

Juvenile Justice Act of 2000

Children who have been abandoned or abused and not those children who have been voluntarily put up for adoption.

Adoption Regulations 2022

The following fundamental principles as shown below shall govern adoptions of children from India, namely:

• The child’s best interests shall be of paramount consideration, while processing any adoption placement.
• Preference shall be given to place the child in adoption with Indian citizens with due regard to the principle of placement of the child in their own socio-cultural environment, as far as possible.
• All applications for adoptions shall be registered on the Designated Portal and confidentiality of the same shall be maintained by the Authority

MTP ACT

• Medical Termination of Pregnancy Act, 1971
• Medical Termination of Pregnancy (Amendment) Act, 2002
• Medical Termination of Pregnancy (Amendment) Act, 2021

Medical Termination of Pregnancy Act, 1971

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• The Act was launched by the Government of India to provide guidelines for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.
• The MTP Act. 1971 is divided into 8 sections, each section dealing with a particular area of information regarding the medical termination of pregnancy.

Medical Termination of Pregnancy

(Amendment) Act, 2002

The MTP Act, 1971 was first amended in 2002, and was called as the Medical Termination of Pregnancy (Amendment) Act, 2002. It came into action on 1st April, 2003.

• Salient features of the MTP (Amendment) Act, 2002:
• MTP (Amendment) Act, 2002 allows termination of pregnancy up to 20 weeks of pregnancy, with the consent of the pregnant woman.
• The word “Lunatic” in the act of 1971 is replaced by “Mentally ill patient”.
• The MTP (Amendment) Act, 2002 decentralizes site registration to a district-level committee consisting of 3-5 members.
• Approval of sites for MTP procedure can be done at district level as well.
• Penalties were made stricter in case of MTP done by unapproved person at an unapproved site.

The MTP Act, 1971 was amended and came into action on 25th March, 2021.

The amendment provides provisions for safe and legal abortion services based on therapeutic, eugenic, social and humanitarian ground.

Saliner features of the MTP (Amendment) Act, 2021:

• The upper gestational limit was increased from 20 to 24 weeks.
• Opinion of 2 medical practitioners is required if pregnancy exceeds 20 weeks.
• The medical board can make decisions regarding MTP even after 24 weeks of gestation in case of fetal anomalies.

Medical Termination of Pregnancy

(Amendment) Act, 2021

PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TEST (PROHIBITION OF SEX SELECTION) ACT, 1994; PNDT ACT

• The PNDT Act, 1994 was enacted for the prohibition of sex selection before or after conception, and for regulation of pre-natal diagnostic techniques for the prevention of their misuse for sex determination that may lead to female feticide.
• This Act came into action on 1st January 1996.

Objectives of PCPNDT Act, 1994

• To improve sex ratio.
• To reduce female feticide.
• To enhance the valuation of girl child.
• To decrease the male gender preference in the community.

• To advise the government on policy matters related to the use of prenatal diagnostic techniques.
• To review and monitor the implementation of the rules made.
• To create public awareness against the practice of preconception sex selection and female feticide.
• To formulate a code of conduct to be observed by persons working at genetic counseling centers and laboratories.
• To perform board meetings at least once in six months.

Functions of the Board Under PNDT Act

SURROGATE MOTHERS

Surrogacy is defined as “the practice by which a woman (called a surrogate mother) becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children.”It is one of the types of Assisted Reproductive Technologies, commonly referred to as ART.

Types of Surrogacy

Surrogacy

Traditional Surrogacy

Gestational Surrogacy

Surrogacy

Legally, there are two types of surrogacies

Altruistic Surrogacy

Commercial Surrogacy

The Surrogacy (regulation) Bill 2019 was introduced by the Minister of Health and Family Welfare, Dr. Harsh Vardhan in Lok Sabha on July 15, 2019 and passed on August 2019 but referred to Rajya Sabha.

• On 8th December 2021 Surrogacy Regulation Act was passed by the Rajya Sabha.
• 25th December 2021 SRA was notified in the Gazette of India.

Surrogacy Regulation Act (SRA) 2021

• Single/Widow/Divorced Men
• Single unmarried women
• Couples in “Live In” Relationships
• GBTQ intending parents
• Intending couple who have a child already either biologically or through adoption or surrogacy except if the child is mentally/physically challenged/ suffers from a life threatening disorder or fatal illness with no permanent cure

Not Eligible for Surrogacy Under Surrogacy

Regulation Act 2021

• Ever married woman.
• Age 25 to 35 years on the day of implantation.
• Has a child of her own.
• Willing woman” (not necessarily relative).
• Only for altruistic purposes not for commercial purposes
• Certificate of medical and psychological fitness.
• Must possess an Eligibility certificate issued by the appropriate authority (AA).
• Only once in lifetime (number of attempts maybe as prescribed).
• Not to provide own gametes.

Conditions for a Surrogate Mother

• Written consent of the surrogate mother.
• Authorization of the same by AA subject to and in compliance with the MTP Act 1971.
• No person/person/organisation/clinic/Lab/Clinical Establishment of any kind shall force the surrogate mother to abort at any stage of pregnancy except in such conditions as may be prescribed.

Termination of Pregnancy during Surrogacy