History of Abortion Laws in India
Abortion was not legalized in India before 1971. And it was seen as intentionally “causing miscarriage”. Abortion was criminalized in India and it was punishable under section 312[1] and 313[2] of the Indian Penal Code, 1860. And the woman was subjected to three years of imprisonment and fine. However, there was exception to this rule that abortion would be granted if the woman’s life was in danger.
The government in 1964 appointed the Shah Committee which was headed by Dr. Shantilal Shah. The appointment of the committee was the first step towards legalizing abortion laws in India. The committee performed a study on the socio- economic background and legal and medical scenarios governing abortion in India and suggested liberalization of abortion laws in India. And subsequently the result of the committee bore into the Medical Termination Act. It was introduced in Lok Sabha and Rajya Sabha and the Act was passed in August, 1971.
The reason behind the enactment of the Act was because of the increase in the abortion rates majorly due to female feticide and an increase in the maternal mortality rates due to unsafe abortions. The MTP Act allowed registered medical practitioner to carry out abortion and also granted them immunity from prosecution under section 312 of Indian Penal Code, 1860.
Amendment in MTP Act
MTP Act has been amended two times, once in 2003 and in 2021. In this Act the meaning of abortion is to terminate the pregnancy via medical or surgical method. The progressive aspect of this Act is that it does not discriminate between married and unmarried women and if you are above 18 years of age you can get abortion subjected to the conditions specified in this Act.
The MTP (Amendment) Act 2021, targets two phases of pregnancy. The first one is if the pregnancy is up to 20 weeks and the legal frameworks regarding that and if the pregnancy is up to 24 weeks and the legal framework regarding that.
If the pregnancy is up to 20 weeks, then the woman requires the permission of at least 1 registered medical practitioner. And if the pregnancy is up to 24 weeks, then permission of at least 2 registered medical practitioner is required. In case if the reason of pregnancy is:
- Failure of birth control measures
- Pregnancy is the outcome of Rape
- Pregnant lady is below the age of 18 years
- Pregnant lady is unstable
- She’s married but now the marital condition is changed
- Pregnancy in Humanitarian settings, disaster or emergency
The above reasons are dangerous for the mental health of the woman and therefore, the Act allows legal termination of pregnancy in these cases. In both these scenarios the termination of pregnancy is subjected to the fact that if the medical practitioner believes in good faith that the continuation of pregnancy will pose risk of death to the woman or it will cause damage to the physical and mental health of the woman or else if the child born will be physically or mentally abnormal, then the medical practitioner will permit for the same.
In case if a woman needs to terminate a pregnancy of a term more than 24 weeks, then a written permission of State Medical Board is required and if they approve in the diagnosis then the termination of pregnancy after 24 weeks is allowed. The only case applicable for such permission is if there is an abnormality in the fetus, otherwise a pregnancy exceeding 24 weeks is not allowed and permitted. The reason behind this is that the survival abilities of the fetus after 24 weeks increase by more than 50%, therefore the law considers it as a separate individual, separate from the mother.
The MTP Act also emphasize on the Right regarding consent. A woman will not be subjected to termination of pregnancy without her consent and she does not need the permission of her husband or for the matter anyone. Abortion rights are a part of woman’s bodily autonomy and reproductive rights, which she can exercise as an individual. However, subjected to the restrictions laid down under the act such as, if the pregnant woman is a minor or mentally unstable. In such cases a written permission of their guardian needs to be taken before abortion.
This Act also provides for the Right to Protection of Privacy. Section 5A of MTP (Amendment) Act governs this right and states,
“5A. (1) No registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force.
(2) Whoever contravenes the provisions of sub-section (1) shall be punishable with imprisonment which may extend to one year, or with fine, or with both.”.[3]
Termination of pregnancy after the determination of the sex of the baby is not allowed. Pre-natal sex determination of foetus is banned in India. It is a punishable offence under Section 6 of Pre conception and Pre-natal Diagnostic Techniques Act, 1994.[4] The accused can face three years of imprisonment and a fine of 50, 000 rupees.
Accessibility of Abortion Right
Although the discussion of abortion rights has been a hot topic among intellectuals, activists and medical and legal community in India but its abortion related controversies has never played an important role in the mainstream political debate of India. It might be because of the fact that abortion controversies do not come under the realm of moral or religious perception of the Indian masses or for the matter of fact, is not a relevant agenda for the mainstream political parties.
The amendment extended the rights to unmarried women and allows for safe termination of pregnancy but it failed to recognize abortion on demand as a pregnant person’s right. Apart from the legal Impediments to safe abortion, women also face many procedural and practical difficulties in accessing the same.
In September 2022, in the X v. Principal Secretary[5], the Supreme Court granted termination of pregnancy of the petitioner at 22 weeks. This judgement highlighted that the decision to carry the pregnancy or to terminate is solely based on the women’s right to her bodily autonomy and her ability to chose her path in her life. It also emphasized that an unwanted pregnancy can have serious effects on a woman’s life.
However, in X v. Union of India[6], the petitioner discovered her pregnancy at around 24 weeks due to a condition known as lactational amenorrhea, which leads to breastfeeding women not menstruating. The petitioner, a married 27-year-old and mother of two approached the Supreme Court for termination of pregnancy according to the Medical Termination Act.
The petitioner was initially denied access to essential healthcare at the facility centre and went to the apex court. In the turnaround of the events, the Supreme Court heard about the foetal viability and the rights of the unborn child and gave precedence over the reproductive autonomy of the petitioner.
The petitioner fulfilled the legal requirements of mental health concerns and despite that she needs to prove the dangers of her circumstances and her absolute need for termination of pregnancy and was denied her right to abortion and its subsequent access.
The judgements in the above-mentioned cases are deemed to be contradictory as one recognizes the woman as the ultimate decision maker on matters of her reproductive choices whereas the other denies her the access to exercise her reproductive choices.
India has not progressed with the gestational limit’s approaches. The MTP Act remains provider-centric and grants decision-making powers to service providers instead of recognising that abortion should be made available at the request of pregnant persons when they need it.
The system pits the pregnant person against the pregnancy itself, and we have seen what the outcome of that is in the October 2023 judgement. The legislation and the Court’s interpretation ultimately created a framework where a woman’s autonomy came to a hard stop at 24 weeks, and was replaced instead by a subjective determination of the circumstances by doctors and judges.
Such fragmentation of women’s bodies must be challenged, and we need to centre the pregnant person when talking about reproductive rights. Guaranteed rights must translate into guaranteed access, which is only possible if lawyers, judges and doctors have less to decide than the woman whose bodily autonomy is in question.
According to a CEHAT study, 142 women disclosed abuse in their marriage and 31 women reported that their currency pregnancy was a result of marital rape. All 31 women sought for abortion. 24 women among them had less than 20 weeks gestations but only 5 of them were able to have abortion. Rest of the women were forced to continue with their pregnancy.[7]
Conclusion
Even though a progressive step towards termination of pregnancy was seen with the 2021 Amendment but these rights did not guaranteed access to women. The role of judiciary should be reduced in the legal framework. And there is a need for the shift from doctor centric approach to an individual centric approach. Granting legal abortion rights to women will only become a women’s right to bodily autonomy when they are guaranteed access to their legal rights by making reproductive choices on their own. Lack of legal aid services to women lead to lack of awareness among them about their rights. And which also results in an increase in maternal mortality and illegal and unsafe abortions among women. Therefore, Guaranteed Rights must also translate in Guaranteed Access.
[1] 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.
[2] 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 1 [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.
[3] Medical Termination Act, 1971
[4] Section 6(b) no person shall conduct or cause to be conducted any pre-natal diagnostic techniques including ultrasonography for the purpose of determining the sex of a foetus.
[5] Civil Appeal No. 502 of 2022 (Arising out of SLP (C) No. 12612 of 2022)
[6] Miscellaneous Application No. 2157 of 2023 In Writ Petition (Civil) No. 117 of 2023
[7] Alby Stephan. K and Ester Princy. P, History and future of abortion laws in India, Legally Simplified Centre for Enquiry into Health and Allied Themes.
Author: Prachi Agrawal
Juris Centre 