Abortion refers to the termination of pregnancy by the expulsion of the embryo or foetus from the uterus of the mother-to-be before the period of gestation is complete. It can be classified into two types – induced and spontaneous. Induced abortion refers to voluntarily causing abortion with the help of a service provider. Spontaneous abortion, on the other hand, refers to an abortion without any intervention, commonly termed as miscarriage.
In India, abortion laws are governed by the Medical Termination of Pregnancy Act, 1971(hereinafter referred to as the MTP Act). Before 1971, abortion was illegal except in cases where it was carried out to save the life of the mother. Sections 312-316 of the Indian Penal Code mention instances in which abortion is illegal and hence punishable. The MTP Act is an exception to these sections and can be considered as an authority that dictates in which cases abortions are illegal, in which cases abortions are legal, where can abortions be performed and who can carry out abortions.
An amendment bill was passed by the Lok Sabha in March 2020 to introduce several changes in the MTP Act with an objective to ensure dignity, autonomy, confidentiality and justice for women who wish to terminate their pregnancy. Through this article, the author has attempted to analyse this amended MTP Act and whether it does justice to the reproductive rights of women.
Time-limit to terminate a pregnancy
The amended Section 3 of the Act has increased the upper ceiling of terminating pregnancy from 20 weeks to 24 weeks. Earlier, a woman could terminate her pregnancy on the advice of one registered medical practitioner up to 12 weeks into pregnancy and on the advice of two registered medical practitioners from 12 to 20 weeks into pregnancy. Now, a woman can terminate her pregnancy on the advice of one registered medical practitioner up to 20 weeks into pregnancy and the advice of two registered medical practitioners from 20 to 24 weeks into pregnancy.
The increase from the 12 weeks to the 20-week limit is progressive as according to the Indian Medical Association, a lot of women come to know of their pregnancy after 4-5 months and therefore, the increased time limit provides such women flexibility to abort.
The time limit of 20-24 weeks, however, is not so flexible and is available only in cases of vulnerability which includes victims of incest, survivors of rape, differently-abled women, minors, etc.
Conditions on the time-limit
It is not to be misunderstood that up to 20 weeks into the pregnancy, a woman has a right to undergo abortion only because she wishes to do so. Abortion is not available to women as a matter of right and it is disheartening that women do not enjoy bodily autonomy when it comes to aborting their child.
Firstly, abortion can be carried out if, in the opinion of the medical practitioner(s), there is a risk to the life of the pregnant woman or risk of grave injury to her physical or mental health. Secondly, a child can be aborted if, in the opinion of the medical practitioner(s), there is a substantial risk that if the child were born, it would suffer from a serious physical or mental abnormality.
In these cases, if abortion is sought due to a failure of the contraceptive device or method used by the woman or her partner, it is regarded as legal because the anguish caused by such unwanted pregnancy may cause a grave injury to the mental health of a woman. Earlier, the provision to seek abortion as a result of the failure of the contraceptive device was only limited to married couples but has now been extended to unmarried couples as well. In cases where the pregnancy is alleged to have been caused by rape or incest, abortion is legal as the anguish of such pregnancies is detrimental to the mental health of a woman.
In the case of minors and mentally-ill women, consent of the guardian is of foremost importance to carry out an abortion.
Who can perform abortions?
According to Section 2(d) of this Act, a registered medical practitioner for this Act is someone who possesses a recognized medical qualification as per the Indian Medical Council Act, 1956, has his name entered in a State Medical Register and has such experience or training in gynaecology and obstetrics as may be prescribed by rules made under this Act. And according to Section 3(1), if a registered medical practitioner carries out abortion in accordance with the rules made under this Act, he shall not be liable under the Indian Penal Code. Therefore, it is only a registered medical practitioner who can perform abortions legally.
An analysis of the amendment
The fact that women still do not enjoy abortion as an absolute right show that there is yet a long way to go and that this amendment is not enough. This amendment could have brought about a historical change regarding abortion as a matter of choice to women rather than only bringing about a few changes in the existing act.
Increase in the upper limit to 24 weeks can be considered a commendable change providing women with more flexibility as there are certain physical disabilities which can only be seen in the foetus after the first trimester. This limit of 24 weeks, however, applies only for those foetuses which belong to women who are victims of rape, incest or are differently-abled. Hence, the Act classifies the foetuses of these set of women as socially undesirable which should be done away with. This shows that the amendment still does not place any importance on the reproductive rights of women consequently not allowing them to take an autonomous decision regarding their body. Ironically, in Suchita Srivastava vs. Chandigarh Administration, a 2009 case, the Supreme Court gave a more liberal ruling than the scope of this amendment.
The question was whether the High Court make a woman abort her child merely because she is suffering from mental retardation and the child has been conceived as a result of rape? The Supreme Court overruled the judgement of the High Court stating, “There is no doubt 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 abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected”. The ratio of this judgement clearly states that the reproductive right of a woman is a dimension of her liberty and only because her foetus is considered socially undesirable, she can not be made to forcefully abort it.
The amendment is very progressive where it includes unmarried couples to seek abortion legally at the incidence of failure of contraception. This can also be considered in line with the domestic violence laws that provide the same remedies to women in a live-in relationship and women in a marriage bond. By making the act more inclusive, the stigma attached to the pregnancy of unmarried women has been removed and now they can easily visit approved clinics for an abortion rather than going to quacks who provide illegal, unsafe and unhygienic facilities.
Section 2C of the amendment provides for the setting up of a Medical Board in every state and union territory constituting of a gynaecologist, a paediatrician and a radiologist or a sonologist. As the upper ceiling in cases of severe foetal abnormalities has been removed, the purpose of this Board is to diagnose these problems and make a decision on whether the foetus is to be aborted or not. Again, the fact that it shall ultimately be the decision of the Board and not the woman, shows that no importance on the consent of the woman has been placed.
The amendment seeks to protect the privacy of the woman by making the revelation of her name and particulars by the registered medical practitioner punishable under Section 5A. This provision of the amendment is applaudable as it protects the victims of rape and incest.
Abortion laws have always been formed based on when life begins. Some believe that life begins at conception, some who believe that life begins when the mother can feel the movement of the foetus and some who believe that life begins at birth. Proponents of anti-abortion laws believe that life begins at conception and are of the opinion that abortion should not be allowed under any circumstances like in Indonesia, Ireland and Philippines.
Countries like Sri Lanka, Bangladesh and Malaysia follow a slightly liberal yet very conservative approach allowing abortion only when its necessary to save the life of the mother. Then there are countries like India, United Kingdom and the United State of America which believe that life begins when movements are felt by the mother and allow for abortion under prescribed conditions and have a liberal approach towards abortion. A completely liberal approach providing a woman with the choice to abort when she wishes is available only in a few countries like Singapore. The author believes that abortion laws in India should be completely liberal as well because even though the amendment seeks to ensure dignity, autonomy and justice to women who wish to abort, they are not given a right to bodily autonomy which so clearly forms a part of one’s liberty under Article 21 as laid down by the Apex Court in Suchita’s case.
Right to abortion is a matter of privacy as well as stated by the Supreme Court in the Puttaswamy judgement. It laid down that, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation… Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life.” There is no doubt that procreation is a vital aspect of anyone’s life and hence should be solely based on one’s own decisions but the amendment has failed to consider this aspect of the privacy judgement.
The debate surrounding abortion laws is that of the human rights of the unborn vis-a-vis the privacy rights of a woman. The state assumes a responsibility to protect the life of the unborn as it considers the foetus as a living being and therefore has the right to life under Article 21 of the Constitution. On the other hand, a woman also has a right to privacy under Article 21 and what she decides to do with her body should not be a concern of the state. This debate has long been going on and continues.
The introduction of the Medical Termination of Pregnancy Act in 1971 was considered a law ahead of its time. When women in several countries were still fighting for abortion laws, India passed the MTP Act legalising abortion in several circumstances. But after almost 50 years, in a country where out of 15.6 million abortions in a year, 11.5 million were carried out at places outside prescribed health facilities, it is evident that rules, as laid down in the Act, were not being followed.
Therefore, instead of legalising abortions only for certain circumstances, emphasis should be on how to promote safe abortions so that the mental and physical health of women is not put at risk. Bodily autonomy is a fundamental right under Article 21 and it should not be put at stake when the question of abortion arises. Rather, reproductive rights should be made absolute and steps should be taken to ensure that abortions are carried out in safe and hygienic places by registered medical practitioners only.
 Suchita Srivastava v Chandigarh Administration, (2009) 9 SCC 1.
 Penal Code of Indonesia, articles 346-349.
 Abortion Act, sec.7(2).
 Penal Code of Philippines, article 256-259.
 Penal Code of Ceylon, sec.303.
 Bangladesh Penal Code, sec.312.
 Malaysia Penal Code, an exception to sec.312.
 Medical Termination of Pregnancy Act, 1971, sec.3.
 Abortion Act, 1976, sec.(1).
 Roe. v. Wade, 41 USLW 4213 (1973): 410 US 113 (139).
 Termination of Pregnancy Act (Ch.324), sec.3(1).
 K.S. Puttaswamy v. Union of India, 10 SCC 1 (2017).
 Lancet Global Health Report, 2018.