Abortion Laws In India- Explained Pointwise

News and Context

Abortion laws in India are in focus once again, after the Supreme Court declined a married woman’s plea to abort (medically terminate) her 26-week pregnancy. In X vs Union of India, the woman had approached the Supreme Court, seeking abortion, as she was already a mother of two and was suffering from post-partum depression after the birth of her second child. The woman had submitted that she was physically, emotionally, mentally, financially and medically unable to carry, deliver or raise another child. 

What were the observations in the SC Judgment?

A Bench presided over by the Chief Justice of India (CJI), D.Y. Chandrachud, held that the woman’s case fell outside the scope of the Medical Termination of Pregnancy (MTP) Act, 1971.

The Court said the statute permitted the termination of pregnancy beyond 24 weeks only in cases where the foetus exhibited substantial abnormality, or where the woman’s life was under direct threat. Here, since doctors would have to terminate a “viable foetus”, the Court rejected the plea to exercise its extraordinary powers.

The Court’s stand on “viable foetus” implies that when a foetus becomes viable, i.e., capable of surviving outside the mother’s uterus, the woman’s right to choose stands extinguished, barring circumstances where the specific conditions outlined in the MTP Act are met.

What is abortion and what is the debate around it?

Abortion- An abortion is a medical procedure to terminate a pregnancy. It uses medication or a surgical procedure to end the pregnancy. However, this medical procedure has a ‘Pro-Choice’ vs ‘Pro-Life’ surrounding it.

What is the Current status of legislation on abortion in India and around the globe?

India has taken the Pro-Choice approach to abortion and has legalised it. India took the first step to legalise abortion by enacting The Medical Termination of Pregnancy Act, 1971 (MTP Act 1971) on the recommendations of Shantilal Committee. The MTP Act has been improved through subsequent amendments latest being in 2021 (MTP Amendment Act 2021). It has been brought in line with modern progressive ideas regarding women’s reproductive rights and bodily autonomy. 

However while India has progressed in the abortion rights domain, US has regressed in the abortion rights domain. US SC pioneered the abortion rights movement by giving the Roe vs Wade Judgement (1973). This judgement gave women in America the constitutional right to have an abortion before the foetus is viable outside the womb or before the 24-28 week mark. However, the US supreme has recently overturned the judgement and removed abortion from the constitutional right. US supreme court has left it to the individual US states to frame their own abortion laws.

Map depicting the status of abortion in all the countries of the World 

India has tried to address the lacunae in the MTP Act 1971 and brought amendments to the Act in 2021.

What are the differences between the MTP Act 1971 and the MTP Amendment Act 2021?

Listed below in the tabular format is the difference between the MTP Act 1971 and its amended Act of 2021.

Read More- Forum IAS

What is the significance of the amended MTP Act 2021?

‘Bodily Autonomy’ to Vulnerable pregnant Women- The amended Act has enhanced the upper gestation limit from 20 to 24 weeks for special categories of Vulnerable pregnant women including rape survivors. This will help in preventing the socio-economic and psychological impact of unwanted pregnancies. Vulnerable pregnant women have been granted more ‘bodily autonomy’ to decide on their pregnancy.

Ease in process of termination of pregnancy- The Amended Act has eased the process of termination of pregnancy. Now for the termination of pregnancy up to 20 weeks, the opinion of only 1 registered Medical Practitioner is required. 

Lowering the burden on courts- The Act has removed the limit of 24 weeks for termination of pregnancy in case of substantial fetal abnormalities. Now the substantial fetal abnormalities abortion can be allowed by the newly established State level Medical Board even after 24 weeks. Thus, it may ease the burden of writ petition on courts, for seeking abortion beyond the permitted period.

Privacy and confidentiality- According to the Act, names of women whose pregnancy has been terminated will be kept confidential. This will ensure dignity, privacy and confidentiality of women.

De-stigmatisation of relations outside marriage- The Act allows for termination of pregnancy due to contraceptive-failure condition for unmarried woman. Hence, it de-stigmatises pregnancies outside marriage.

Reduction in Maternal Deaths and morbidities- The simplification of process of abortion will reduce the maternal deaths due to unsafe abortions. India, currently registers around 80,000 deaths due to illegal abortions.

What are the challenges associated with MTP Act 2021 to achieve safe abortion in India?

Does not provide right for “at-will abortion”- The MTP Act does not provide for ‘at-will abortion’. SC in the landmark case of X vs Principal Secretary, Health and Family Welfare Department, Government of NCT, has acknowledged that the MTP Act is a provider-centric legislation, where the opinion of the Registered Medical Practitioner (RMP) becomes “decisive and final”. 

No recourse for rape victims and other vulnerable pregnant women after 24 Weeks- According to the act, rape victims and other vulnerable pregnant women (mental illness, minors etc.) cannot approach the Medical Board for the termination of pregnancies beyond 24 weeks. Medical board can be approached in case of ‘substantial foetal abnormalities’ only. Thus writ petitions become the only option for these women.

No provision of time frame for the medical board decision- The act does not provide for the time frame within which the Medical board must make its decision. Delays by the medical board lead to further complications for women.

‘Special categories of women given relaxation’ not fully representative- Special categories of women whose gestation limit has been increased from 20 to 24 weeks is not fully representative. It does not include women suffering from financial crisis or women suffering from lactational amenorrhea or menopause.

Fear of persecution- Fear of criminal persecution still exists among the registered medical practitioners, which drive women either to unsafe abortions or to courts.

Low number of registered medical practitioners- According to the act only Registered medical practitioners having experience or training in gynaecology or obstetrics can perform the abortion. But according to NH&FS (2015-16) data, only 53% of abortions are performed by a registered medical doctor, the rest are conducted by a nurse, midwives, family members. Also there is 75% shortage of such doctors in community health centres in rural areas. This results in more unsafe abortions.

What should be the way forward for abortion laws in India?

Filing of cases for abortion rights in the Indian courts is still a regular feature. India must adopt the following recommendations to achieve safe abortion conditions.

Follow the WHO guidelines for abortion- WHO has recommended that States should fully decriminalise abortion, remove grounds-based regulation and gestational limits to abortion. This will ensure non-discriminatory and equal abortion care to all.

Shift the power of abortion from the doctor to the woman seeking an abortion- SC in Justice K.S. Puttaswamy (Retd.) vs. the Union Of India And Others (2017), recognized the right of women to make reproductive choices, as a fundamental right under Article 21 of the Indian Constitution. Hence the conditionalities in the act must be removed to ensure women are able to exercise their reproductive choices right.

Increasing the ambit of the MTP Act- The ambit of the act must be increased by including transgenders and other vulnerable women like those suffering from financial constraints, lactational amenorrhea or menopause. 

Creation of cadre of certified medical practitioners- India needs to create a cadre of certified medical practitioners including ASHA, ANM workers in its health system who can carry out institutional abortions. This will reduce the problem of unsafe abortions in India.

Women and girls should have access to abortion care that is safe, respectful and non-discriminatory in nature. Access to abortion care is fundamental in meeting the Sustainable Development Goals (SDGs) relating to good health and well-being (SDG3) and gender equality (SDG5).