Explained: Abortion laws in India

India has a central law called The Medical Termination of Pregnancy (MTP) Act, which permits licensed medical professionals to perform abortions in specific predetermined situations

The sharp divergence of opinion by two women Supreme Court judges on a married woman’s plea to abort her 26-week foetus has sparked off a serious debate on women’s reproductive rights and decisional autonomy.

The 2021 amendments reflected a progressive legislative outlook, seeking to remove a raft of anomalies of the old law. (Representative file image)

The split verdict came on Wednesday, virtually putting on hold the court’s October 9 order, allowing the termination of the advanced pregnancy citing vulnerable physical and psychological health of the 27-year-old mother of two.

Following an extensive hearing on Wednesday, justices Hima Kohli and BV Nagarathna could not come to an agreed decision whether the foetal heart should be stopped in supreme acknowledgment of the woman’s reproductive right and the woman’s peculiar position.

The Union of India too stepped in to emphasise that reproductive rights are subject to a legal regime and that a mother’s right cannot be allowed an absolute march over an unborn child’s right to life when the State was obligated and willing to provide all possible medical, psychological and social assistance, including adoption.

As manifestation of these rights are intrinsically linked to a legal regime in India, which also caveats the exercise of the right to terminate pregnancy and puts an embargo on the core principle of self-determination and autonomy, an understanding of the balance that the law seeks to create in the sphere of abortion rights, dependent on a spectrum of situations, becomes imperative.

While the Supreme Court appears divided and the wait for a final word by a larger bench puts the request for termination in limbo, it’s pertinent to put a lens on what’s at stake and the impact the ruling may have on the country’s jurisprudence on the right to abort.

The legal regime:

India has a central law called The Medical Termination of Pregnancy (MTP) Act, which permits licensed medical professionals to perform abortions in specific predetermined situations as provided under the legislation.

Before the enactment of the MTP Act in 1971, the medical termination of pregnancy was governed by the Indian Penal Code (IPC), with Sections 312 to 318 forming a part of this segment. Most of these provisions aimed at criminalising abortions, except where the procedure was done in good faith in order to save the woman’s life. The IPC provisions failed to make a distinction between wanted and unwanted pregnancies, making it extremely onerous for women to access safe abortions.

In 1971, the MTP Act was enacted by Parliament as a “health” measure, “humanitarian” measure and “eugenic” measure, to decriminalise abortion in certain defined circumstances and under due supervision of registered medical practitioners.

Under the 1971 law, a pregnancy could only be terminated under Section 3(2) if it did not exceed 20 weeks. It laid down that the pregnancy can be terminated on the opinion of one doctor if it is done within 12 weeks of conception and two doctors if it is done between 12 and 20 weeks.

Abortion was permitted only when the continuance of the pregnancy would involve a risk to the life of the pregnant woman, the discovery of foetal abnormalities, immediate necessity to save the woman’s life and cause grave injury to the woman mental or physical health (including rape and failure of birth control measures). The Act added that a married woman can terminate an unwanted pregnancy too, but no such procedure shall be carried out on any woman without her consent. Thus, if the mother had not crossed 20 weeks of gestation, she would have been eligible for an abortion under the MTP Act.

While Section 312 in the IPC makes intentionally causing a miscarriage a crime punishable with an imprisonment up to seven years, medical professionals carrying out abortions in accordance with the MTP Act are exempt from prosecution.

In 1994, the Indian government brought in the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act with the objective of avoiding abuse of the MTP Act for sex selection and to prohibit pre-natal diagnostic techniques for sex determination leading to ‘female foeticide’. The law is also aimed at regulating pre-natal diagnostic techniques for detecting genetic abnormalities and other disorders. The violators can get up to five years in jail apart from monetary penalties under the PCPNDT Act.

The 2021 amendment to the MTP Act:

The 1971 law failed to meet the needs of the changing times and advancements in medical science as several women, including rape survivors, mentally incapacitated and women undergoing unwanted pregnancies due to contraceptive failures, started approaching courts to seek approval for terminating their pregnancy beyond the prescribed gestational period of 20 weeks.

The Act was finally amended in 2021. The Statement of Objects and Reasons of the Bill stated that women’s access to legal and safe abortion should be ensured to reduce maternal mortality and morbidity caused by unsafe abortions.

The amendments permitted abortion up to 20 weeks following an opinion of one registered medical practitioner (RMP).

Abortion was allowed up to 24 weeks for certain classes of women, defined under the MTP Rules.

Rule 3B permitted abortion up to 24 weeks for women due to change of marital status during the ongoing pregnancy (widowhood and divorce), besides in cases of survivors of rape, victims of incest, and other vulnerable women (like differently-abled women and minors).

Significantly, the 2021 amendment replaced the word “by any married woman or her husband” with the words “any woman or her partner”, bringing within the fold of the law pregnancies outside marriage institutions.

The Amendment Act also included unwanted pregnancies due to the failure of contraceptives as ground for abortion up to 20 weeks.

Recent Supreme Court judgments breaking new grounds:

The 2021 amendments reflected a progressive legislative outlook, seeking to remove a raft of anomalies and maladies of the old law. The amendments unequivocally increased the time-period within which an abortion can be legally conducted and also brought to its fold women outside marital relationship, extending the right to reproductive care.

Even as the new law sought to remedy various situations, the intervention of constitutional courts became indispensable because abortion cannot only be a medico-technical issue to be determined within the conspectus of law, but it is more about a decisional and ideological struggle, triggering a contest among various actors - the family, the State, motherhood and women’s autonomy.

A spate of recent cases before the Supreme Court has underscored the complex labyrinth of laws and the barriers faced by women in accessing safe and legal abortions.

The Supreme Court, in Suchita Srivastava and Anr Vs Chandigarh administration (2009), asserted that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’, as understood under Article 21 of the Constitution of India.

“It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected,” it held.

In Z Vs State of Bihar (2018), the top court recognised the disastrous effects of unnecessary delays and lack of promptitude in the attitude of authorities when dealing with termination of pregnancies, as it rebuked the “negligence and carelessness” of the authorities in failing to terminate the pregnancy as permitted by law.

In X Vs Union of India and Meera Santosh Pal Vs Union of India (both in 2017), Mamta Verma Vs Union of India and Sarmishtha Chakrabortty Vs Union of India (both in 2018), the Supreme Court permitted the termination of post 20-week pregnancies after acknowledging the risk of grave injury to the mental health of a pregnant woman by carrying the pregnancy to term.

Expanding the scope of the MTP Act, the top court in Shaikh Ayesha Khatoon Vs Union of India (2017) and Vaishali Pramod Sonawane & Another Vs Union of India (2019), ruled that a pregnancy can be terminated after 20 weeks also in situations when there is a substantial risk, if the child is born, it would suffer from such physical and mental abnormalities as to be seriously handicapped.

In XYZ v. State of Maharashtra (2021), a minor was allowed to terminate her pregnancy in the 26th week after considering her socio-economic condition, and the impact of the continuation of pregnancy on her mental health.

The predominant understanding of the concept of a ‘family’, both in the law and in society, was questioned by the Supreme Court in Deepika Singh Vs Central Administrative Tribunal (2022), noting that familial relationships may take the form of domestic, unmarried partnerships or queer relationships. The judgment highlighted the necessity of legal recognition to enable individuals in non-traditional family structures to access safe abortions under the MTP Act.

The legal regime around the abortion law in India further witnessed a watershed moment in September 2022 when the Supreme Court stamped out “artificial distinction” between married and single women and granted a judicial recognition to “marital rape” for the purposes of abortion, marshalling women’s right to reproductive and decisional autonomy.

The question before the court was the distinction the rules framed under the MTP Act made between married and unmarried women.

The MTP Rules allowed married women to abort up to 24 weeks on account of mental anguish, rape and health complications, among others, but unmarried women could not do so.

The issue arose after a 25-year-old single woman, hailing from Manipur, sought termination of her 22-week pregnancy out of a consensual relationship.

Rendering a purposive interpretation to the law, the apex court ruled that rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman.

The landmark verdict, authored by justice Dhananjaya Y Chandrachud, said that interpretation of the MTP Act must consider the social realities of today and not be restricted by societal norms of an age which has passed into the archives of history.

While the September 2022 judgment constructed a marker for judiciary that seemed ready to adapt and evolve to keep step with changing social norms and unfolding of new sets of rights to ascertain dignity, privacy and bodily autonomy for women, the latest stand-off in the highest court of the land tests the judicial and jurisprudential boundaries while putting the reproductive rights of women at the centre of a public disputation all over again.