Where Does India Stand on Abortion Laws?

Abortion as a procedure to terminate a pregnancy has been practised from ancient times by midwives, nurses etc. However, the discussion about Abortion and Abortion laws came up with the second wave of feminism in the world in around 1960s where feminists aimed for civil rights and reproductive rights including the choice of abortion for women. Whereas, in India, the abortion laws came in existence in 1971 which provided the platform of having a legal abortion in the cases where the gestation period has not exceeded 20 weeks. But in reality, women are still deprived of having reproductive rights and safe and legal abortion due to various social and legal problems in society.

This article will deal with the phenomenon of abortion and abortion laws including the changing needs of society overtime to have abortion laws and the critical analysis with respect to the need of laws in 1971 and in Modern India.

What is Abortion?

Abortion is referred to as the process of taking fetus out of uterus before it becomes “viable”. Here, viability is the potential of the fetus to survive and grow outside the uterus independently(1).  Viability depends upon pregnant women’s gestation age. However, it is mostly until 24 weeks of pregnancy(2). The term abortion or induced abortion is used when the pregnancy is deliberately terminated through external means. It is often confused with miscarriage which involves fetus death by natural means or reasons. These reasons are beyond the control of humans and vary depending on the case. (3).

The major reasons governing abortion can be(4):

  1. an adverse effect of the child on the parents’ life if born.
  2. The financial unpreparedness of family.
  3. The interpersonal relationship problems between parents of the fetus.

However, the root cause of a person falling in such a situation is because of unwanted and unplanned pregnancies. In most of the developing countries like India, it is seen that such pregnancies occur more frequently in middle-class and low-income family groups. (*)

 Such Pregnancies can be the result of(5):

  • Incorrect use of contraceptives.
  • Rape or sexual assault.
  • Contraceptive failures.
  • Non-availability of emergency contraceptive pills.

Statutes governing Abortion Laws in India and their changing scope-

Medical Termination of Pregnancy Act, 1971:

In India, abortions and ‘causing miscarriage’ were illegal under Section 312 of Indian Penal Code, 1860 before any legislation was passed for the same. But, after the Shah Committee report in 1966 (established in 1964) which advised the formation of abortion laws in India by examining legal, medical and socio-cultural aspects, the Medical Termination of Pregnancy Act,1971 (MTP Act,1971) was enacted by the Union Ministry of Health, and family welfare(6). In the Act, there’s a need of opinion of one medical practitioner for abortion when the time period of the pregnancy doesn’t exceed 12 weeks and 2 medical practitioners in the case where the gestation period has exceeded 12 weeks but not 20 weeks (section 3(2) of MTP Act, 1971). With these limits, the reason for the abortions to take place were also mentioned under the act (section 3(2) and section 3(3) of MTP Act, 1971) which were:[1]

  1. The chances of mental or physical injury to pregnant women if the child the born or
  2. The risk of mental or physical abnormalities in the child if born or
  3. The reasonably foreseeable or actual environment of the woman.

It should be noted that the third reason mentioned above again depends on authorities to take in consideration or not. With this, the scope of mental injury to the woman was extended to pregnancy because of rape or assault and failure of contraceptives.

Need for the Act

The fact that abortion was illegal in India from 1869- 1967 because of the colonial influence in the formation of IPC, 1860. MTP Act, 1971 was considered as a progressive law because of its unconventional nature. With the problem of population explosion in the country for a long time, the government set up a family planning committee post-independence in 1952. This committee focused on birth control, improvement of lifestyle of families in terms of finance and health (7). With this move, the Shah Committee was set up in 1964 as well. Abortion is always considered as a key element to control population growth, especially in developing countries. Population control is a neglected benefit that country derives out of abortion[2]. The rate of population growth curve clearly flattened post-1971 after the enactment of MTP Act, 1971. (8)

Abortion has never been an alien concept to society, it was prevalent in ancient times as well. however, the problem was, because of illegal abortions, the risks of life of woman, unborn child, and the liability of doctors became a concern. In the 1950s the maternal mortality ratio (MMR) which is calculated by the maternal deaths divided by 100,000 live births in the same period was estimated to be over 1000 by Mudaliar Committee. This rate reduced do 800 in the 1970s and over 500 in 1980s (9).

However, these estimates lacked the use of statistical tools at large. Therefore from 1997, all such data are taken by Sample Registration System (SRS), a survey conducted by Office of Registrar General, India. It took pooled data of three years to calculate close to correct average. Such mortality ratio can be a reason for illegal means which people used to get aborted. These extended from taking drugs and pills to approaching unskilled practitioners. In this only, the assumed inability or absence of qualified medical practitioners doing illegal pregnancies can also be taken into consideration as abortion was illegal, there could be no qualification as to abort a pregnant woman.

Almost 2% of the total pregnancies suffer from a major birth defect (10), the hardships faced by them are not taken into consideration by the state while banning abortion. This ban alienates them from getting a safe and good life without having a child with disabilities and subsequently facing hardships in its upbringing.

There was a huge influence of the patriarchal society in India in the 1900s and any pregnancy occurred because of any sexual assault or rape or contraceptive failure can lead to great havoc especially in women’s lives in terms of social stigma if the child is born and the scenario will be worse in case of unmarried women.

India is a developing country and has faced poverty continuously. The fact that unwanted pregnancies mostly occurs in middle and low-income family groups(57% of the total women who received abortion were poor, 21% were moderate)[3], it becomes very important for a country like India to have abortion laws which could help people in terms of affordable access to abortion and save the parents from financial distress as well.

Criticism and the Need for Reform

Despite the reasons and advisory given by the Shah committee, the act, opposite to what the committee suggested, didn’t give women any rights of abortion instead, protected the risks of any mishappening in abortion by medical practitioners performing it under the act (most of the sections started with “notwithstanding anything contained in Indian Penal Code” in the act) and also, rested the final decision of abortion with medical practitioners only (section 3 of the act)(11).

The upper limit of 20 weeks to get an abortion and the simultaneous relaxation of the time period if there is an imminent danger to the life of a pregnant woman are contradicting in nature. The fact that there’s a scope of abortion after 20 weeks and if the fetus has not become viable, the woman should be allowed to go through abortion so as to avoid exploiting the viable fetus’s human rights.

The act aimed at abortion laws in India but failed to acknowledge the social aspect or patriarchal society and the need for privacy in such issues to avoid social stigma. The bill did not come up with any privacy clause for women facing abortion which worked as a hindrance for them to approach public clinics.

Another flaw in the act was its failure to acknowledge the sex discrimination problem in India. It is a known fact that girl child is still not acceptable in many parts of the country where they are killed as soon as people get to know about the gender of the child, be it a fetus or as an infant. Though sex determination was banned in India in 1994, it is the poor monitoring of medical practitioners and their dominance in suggestions and opinion to people and authorities that have lacked monitoring and framing regulations for them. People misuse the advantage of the power they have in the gestation age and take up illegal acts.

Amendments in the act

With such problems and loopholes, this Act created a need of reforms and consequently small amendments and regulation could be seen in the year 2003 but the  MTP (Amendment) Bill, 2014 draft set the benchmark for the need of changes in the 1971 Act including privacy protection, increasing scope of women having an abortion and increase in doctors conducting abortion while teaching midwives etc. however the bill could not become the act and stuck in limbo. But a leap of changes is seen in the MTP (Amendment) Bill, 2020 which has been passed in Lok Sabha and comes with significant changes like-[4]:

  1. The need of opinion of one medical practitioner in case of pregnancy not exceeding 20 weeks of pregnancy and 2 in cases of pregnancy exceeds 20 weeks but does not exceed 24 weeks.
  2. Practitioners are required to maintain the privacy of women having an abortion.
  3. The time period could be lapse if their substantial fetal abnormalities diagnosed by Medical Board.
  4. Acknowledging contraceptive failure as a valid ground for abortion.

Conclusion: Still a Long Way to Go!

The 2020 bill does come up with various changes as mentioned above but the reason why abortion laws were framed in India was not restricted to and should not be restricted to prevent illegal and unsafe abortions instead, it should be made in respect to give women rights and autonomy in terms of decisions that they can take for their reproductive system. the bill may have exceeded the abortion time period limit but it led to two questions which left unanswered. Why should 24 weeks be the limit a woman can have an abortion or if it all about the viability of fetus and fetus human rights then why the act has talked about mental injury? Secondly, if women have the right to their reproductive system as mentioned in Justice K S Puttaswamy V Union of India[5], why does the act still leave the last discretion on medical practitioners and not women?

The abortion laws in India do not take in consideration the actual problem in consideration i.e. the dynamics of the country. The time period has been extended because of technological advancement but the act do not deal with the high pricing of contraceptives, the social stigma that comes from having unwanted pregnancy especially from sexual assault, awareness of people about abortion laws (12). Today, approximately 1 out of 4 abortions take place in health facilities (13) and as established already, abortions are largely seen in the middle- and low-income family groups and the public sector is the primary access of health for people. This shows how the stringent act is not fulfilling its purpose.

Therefore, it will be safe to say that the abortion laws in India are not appropriate in terms of societal aspects like women rights, affordable access to the poor, preventing social stigma and a lot other issues as mentioned above.

[1] Medical termination of pregnancy act, 1971, http://tcw.nic.in/Acts/MTP-Act-1971.pdf.

[2] Mumford, S. D., & Kessel, E. (1986). Role of abortion in control of global population growth. Clinics in obstetrics and gynaecology13(1), 19–31.

[3] Banerjee, S.K., Kumar, R., Warvadekar, J. et al. An exploration of the socio-economic profile of women and costs of receiving abortion services at public health facilities of Madhya Pradesh, India. BMC Health Serv Res 17, 223 (2017). https://doi.org/10.1186/s12913-017-2159-6

[4] Medical Termination of Pregnancy act, 1971

[5] Wikipedia contributors. (2020, May 10). Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. In Wikipedia, The Free Encyclopedia. Retrieved 22:07, May 24, 2020, from https://en.wikipedia.org/w/index.php?title=Justice_K._S._Puttaswamy_(Retd.)_and_Anr._vs_Union_Of_India_And_Ors.&oldid=955867727

Shivam Goel from Institute of Law, Nirma University, Ahmedabad

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