In a recent Supreme Court judgement, the apex court refused to grant a widowed women who was 32-weeks pregnant her right to abortion as the foetus was healthy. The court held that they had to think of both the child and the mother who would be at risk according to the medical board. Even though she claimed that the child would cause her mental trauma and depression.
Abortion is a very sensitive topic in our country and all around the world. Abortion laws and the social stigmas attached to it differ in each country.
In 2022, The United States of America overturned Roe v. Wade, ruling which now took away the country’s women to have a right to abortion. Considered to be one of the most progressive countries in the world, the American Supreme Court overruling Roe v. Wade, is one of their most conservative decisions.
Comparing to most countries, India at least has progressive abortion laws available to its citizens. This brings up the question what are the specific abortion laws in India.
Let us Start with understanding what exactly abortion is,
Abortion is a process that is done to end the pregnancy of a women intentionally, in this process, the embryo or the foetus is medically removed from the uterus.
It is defined by the World Health Organization (WHO) as “the expulsion or extraction from its mother of a foetus or embryo weighing less than 500 grams.”
Broadly abortions can be divided into 2 parts- induced abortions which is done willingly by the women and spontaneous abortion also known as a miscarriage, it is an unintentional expulsion of embryo or foetus from the uterus.
According to the World Health Organisation, 73 million induced abortions happen all around the world, most of them being unsafe resulting in serious complications.
Abortion can also be divided in groups of unsafe abortions and safe abortions.
Unsafe abortion is an abortion which is done unsafely performed by individuals who do not posses the required medical skills or it is performed in an environment which is medically unsafe or both. Unsafe Abortions can lead to infections to internal organs and sometimes which can even result in death of the women.
Safe Abortions on the other hand, are safely performed by a medical practitioner who possess the required medical skills to perform the abortion. It is also done within an environment which is medically and hygienically safe.
History of abortion laws in India
Before 1971, any female who got an abortion would have been punishable with imprisonment up to 7 years and or fine and any person helping with up to 3 years imprisonment and/or with a fine. This was the continuation of the laws brought by the British during their rule.
Abortion was criminalised under Section 312 of the Indian Penal Code, 1860. It was described as “intentionally causing miscarriage, even if miscarriage is with the consent of women”, except where it was needed to save the women’s life.
In 1964, the government set up the Shantilal Shah Committee which was headed by a medical professional, Dr Shantilal Shah as the cases of unsafe abortions and maternal mortality rate rose all over the country.
The committee gave many important suggestions and a new bill was introduced called the ‘The Medical Termination of Pregnancy Bill’ it was introduced in the parliament based on suggestions of the committee. In August 1971, the bill was passed by both houses of parliament and ‘The Medical Termination of Pregnancy Act, 1971’ was enacted in the country.
It did provide protection to the medical practitioners and the women availing abortion services from criminal prosecution under Section 312 of The Indian Penal Code, 1860.
But it still had many drawbacks which was keeping the act underdeveloped.
The act did not allow for abortions beyond 20 weeks of pregnancy.
The gestational limit was 12 weeks, if the period is less than 12 weeks then only one Registered Medical Practitioner opinion is required.
If the period is between 12-20 weeks, then the opinion of 2 Registered Medical Practitioners is necessary and abortion after 12 weeks was only accessible if there was any abnormality with the foetus or danger to the woman’s life.
This period of 12 weeks is considered very low, as many women find out they are pregnant much later, and in cases of any medical condition discovery of pregnancy is much more later than 12 weeks. The women did not have sufficient time to decide what they really wanted to do and had to make a fast decision.
Another condition for getting an abortion under the MTP Act was that the women had be married. The act did not extend to unmarried women exception being cases of rape pregnancy. This was highly discriminatory in nature against unmarried women, who then had to resort to unsafe medical procedures to get rid of the foetus and put themselves in high danger of infections.
Medical Termination of Pregnancy (Amendment) Act, 2021
The court even after the enactment of the Medical Termination of Pregnancy Act, heard the cases of abortion that came to them but as the time changed, the mentality of the society changed, more liberal laws were needed. Many amendments were made over the years, but none brought any major change.
The Medical Termination of Pregnancy (Amendment) Act, 2021 brought landmark changes to this act.
The government set up 7 categories of women who would be able to get an abortion, under section 3B of the Act[1]
1. if the woman is a Survivor of rape, sexual assault, or incest
2. if she is below the age of 18 years
3.Woman is going through change of marital status i.e. divorce or widowhood during the pregnancy
4. if she has any physical disability which would make it difficult to have a child
5. is she is a mentally ill (including mental retardation)
6.if a woman is pregnant in humanitarian settings, disasters or is in an emergency (as declared by the government)
7. the foetal malformation that has substantial risk of being incompatible with life or even if the child is born, it may suffer from mental or physical abnormalities to be seriously handicapped.
The historic 2021 amendment was now also inclusive to unmarried women, by using the words ‘any woman and her partner’[2] under Section 3 Explanation I of the Act.
Article 14 of the Indian Constitution deals with the right to equality and states that “—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”[3]
It would have been discriminatory in nature and would have violated the rights of unmarried women if they were not included under this act alongside married women. Unmarried women should have a right to abortion. Forcing an unmarried woman to go through abortion would put their mental and physical well-being under harm. They should have the same amount of abortion rights as married women do.[4]
The amendment also increased the gestation period from 20 weeks to 24 weeks, making it more flexible for women to take time and make an informed decision and a right choice for herself.
If the pregnancy is up to 20 weeks, then the women would now only require opinion of 1 registered medical practitioner and if pregnancy is up to 24 weeks, then opinion of at least 2 registered practioners.
If any woman is seeking abortion beyond 24 weeks of gestation, a four-member medical board must be consulted. This is done to make sure that the late term abortions are performed only in cases of serious dangers to either the woman’s life or if the child will be born with serious physical or mental disabilities that would making its life difficult. They also ensure that whether the procedure of abortion would be safe for the woman at that stage of pregnancy, if it is done. The medical board considers the well-being of both the woman and the foetus.
In the amendment of section 3 of the act, the members of the medical board were added.
The medical board should consist of a gynecologist, a pediatrician, a radiologist or sonologist and any member notified in the official gazette by the state government or the union territory.
Another amendment that was introduced was increase in the fine of any person who would disclose the details of any women who has gone through an abortion, without their consent, taking away their right to privacy. This is a crucial provision, as many women would not consider the option of getting an abortion in the fear of societal rejection and judgement if their details were available to the public. This provision was added so that the women could feel safe and supported when accessing abortion.
According to Section 5 of the MTP (Amendment) Act, 2021, any person who violated the provision of section would be punishable with imprisonment which may extend to 1 year or fine or both.
Before the 2021 amendment, any person who would the breach of women’s confidentiality would only be punished with a fine of Rs.1000.
Abortion laws all around the world
Availability of abortion laws all around the world depends on the socio-economic, cultural, and religious state of that country. As of 2024, abortion is still strictly prohibited in 22 countries.According to the Centre for Reproductive Rights, 40 percent of women worldwide still live in countries which have restrictive abortion laws. This outright ban on abortion is extremely harmful, as women who do not get an option for a safe abortion have no other way but to find a way to do it unsafely, which can result in death.
All around the world, thousand of women die from unsafe abortions because adequate abortion facilities are not provided to them.
According to the data of Population Reference Bureau, a non-profit organization. In countries that prohibit abortion only 25 percent of abortions are safe abortions
For modern abortion law countries can be divided into 4 types- countries which outright prohibit abortion with countries like Iraq, Philippines and Madagascar, Countries which give power to their states like the United States of America and Mexico where abortion law varies in different states. Countries that allow to save women’s life and countries that allow abortion on various other health grounds like India.
Conclusion- Abortion right is a fundamental right
Article 21 of the constitution provides for protection of life and personal liberty “No person shall be deprived of his life or personal liberty except according to procedure established by law.” [5]
This protection of life and personal liberty is available to all citizens, foreigners, and people in the country.
The Supreme Court in the landmark case of Suchita Srivastava v. Chandigarh Administration[6] held that Article 21 of the Indian constitution has a broader meaning and it extends to the liberty of women to make their own their reproduction choices, whether they want to have a child or want to get an abortion. It is a fundamental right which cannot be taken away from any person.
These rights are the components of the woman’s right to privacy, personal liberty, dignity, and bodily integrity as enshrined by Article 21.[7]
Compared to many countries such as United States of America, who overturned the ruling of Roe v. Wade, taking away the universal right of women to get an abortion, allowing individual states to make their own laws regarding abortion. India still has a very liberal and progressive law.
Despite the availability of a liberal law such as the MTP Act, India still has a long way to go in regards to abortion availability. Many women still do not get an option to have access to a safe abortion by registered medical practitioners due to which they get multiple infections sometimes even resulting in death.
Social Stigma, fear of being judged by the society even family members might discourage women to get an abortion, unawareness about abortions and inadequate healthcare facilities are all barriers for women to get safe abortions especially in marginalised communities and in villages.
[1] The Medical Termination of Pregnancy (Amendment) Act, 2021.
[2] Section 3, The Medical Termination of Pregnancy (Amendment) Act, 2021.
[3]Article 14, Constitution of India.
[4] Suchita Srivastava v. Chandigarh Administration, (2009) 14 SCR 989.
[5] Article 21, The Constitution of India.
[6] (2009) 14 SCR 989.
[7] https://legalitysimplified.com/blogs/history-and-future-of-abortion-laws-in-india/.
Author: Muskaan Pandey
Juris Centre 