The story so far: In a significant step backwards for women’s rights in the U.S., the Supreme Court overturned the landmark Roe v. Wade judgement of 1973, which gave women in America the right to have an abortion before the foetus is viable outside the womb or before the 24-28 week mark. With the setting aside of the historic judgement on abortion in the U.S, here’s a look at the laws that govern abortion in India.
How did abortion laws come about in India?
In the 1960s, in the wake of a high number of induced abortions taking place, the Union government ordered the constitution of the Shantilal Shah Committee to deliberate on the legalisation of abortion in the country. In order to reduce maternal mortality owing to unsafe abortions, the Medical Termination of Pregnancy (MTP) Act was brought into force in 1971. This law is an exception to the Indian Penal Code (IPC) provisions of 312 and 313 and sets out the rules of how and when a medical abortion can be carried out.
Under Section 312 of the IPC, a person who “voluntarily causes a woman with child to miscarry” is liable for punishment, attracting a jail term of up to three years or fine or both, unless it was done in good faith where the purpose was to save the life of the pregnant woman. This section effectively makes unconditional abortion illegal in India. Section 313 of the IPC states that a person who causes the miscarriage without the consent of the pregnant woman, whether or not she is in the advanced stages of her pregnancy, shall be punished with life imprisonment or a jail term that could extend to 10 years, as well as a fine.
How has the MTP Act evolved from 1971 to 2021?
The latest amendment to the MTP Act was made in 2021. Before that new rules were introduced in 2003 to allow the use of then newly discovered abortion medicine misoprostol, to medically terminate a pregnancy up to seven weeks into it. Broader amendments to the original Act were introduced in 2020 and the amended Act came into force in September 2021.
Under the Medical Termination of Pregnancy (Amendment) Act, 2021, abortion is permitted after medical opinion under stipulated circumstances. The 2021 Act increased the upper limit of the gestation period to which a woman can seek a medical abortion to 24 weeks from 20 weeks permitted in the 1971 Act. But this renewed upper limit can only be exercised in specific cases. Gestational age, calculated in weeks, is the medical term to describe how far along the pregnancy is and is measured from the first day of the woman’s last menstruation or period.
Another major amendment was that MTP could now be accessed on the opinion of a single registered medical practitioner up to 20 weeks of the gestational age. From 20 weeks up to 24 weeks, the opinion of two registered medical practitioners is required. In the previous version of the Act, the opinion of one registered doctor was required to access a medical abortion up to 12 weeks of pregnancy, while two doctors were required to endorse the abortion up to 20 weeks.
What is the MTP (Amendment) Act, 2021?
Under the 2021 Act, medical termination of pregnancy is permitted if it is backed by medical opinion and is being sought for at least one of the following reasons —
- If the continuation of pregnancy would involve a risk to the life of the pregnant woman
- If its continuation would result in grave injury to the woman’s physical or mental health (if the pregnancy is a result of rape or failure of contraceptive used by the pregnant woman or her partner to limit the number of children or to prevent pregnancy, the anguish caused by its continuation would be considered to be a grave injury to the mental health of the pregnant woman)
- In the case of a substantial risk that if the child was born, it would suffer from serious physical or mental abnormality
The pregnancy can be terminated upto 24 weeks of gestational age after the opinion of two registered medical practitioners under these conditions —
- If the woman is either a survivor of sexual assault or rape or incest
- If she is a minor
- If her marital status has changed during the ongoing pregnancy (i.e. either widowhood or divorce)
- If she has major physical disabilities or is mentally ill
- On the grounds of foetal malformation incompatible with life or if the child is born, it would be seriously handicapped
- If the woman is in humanitarian settings or disaster, or emergency situations as declared by the government
Besides, if the pregnancy has to be terminated beyond the 24-week gestational age, it can only be done on the grounds of foetal abnormalities if a four-member Medical Board, as set up in each State under the Act, gives permission to do so.
The law, notwithstanding any of the above conditions, also provides that where it is immediately necessary to save the life of the pregnant woman, abortion can be carried out at any time by a single registered medical practitioner.
Under the 2021 Act, Unmarried women can also access abortion under the above-mentioned conditions, because it does not mention the requirement of spousal consent. If the woman is a minor, however, the consent of a guardian is required.
Section 5A of the Act contains provisions for the protection of the privacy of a woman undergoing an abortion. The registered medical practitioner cannot “reveal the name and other particulars of a woman whose pregnancy has been terminated”, except to a person authorised by the law. If the doctor reveals such information in breach of the woman’s privacy, they could attract a jail term of upto one year or a fine, or both.
Have there been judicial interventions in cases of abortions?
Despite the fact that existing laws do not permit unconditional abortion in the country, in the landmark 2017 Right to Privacy judgement in the Justice K.S. Puttaswamy v. Union of India and others, the Supreme Court had held that the decision by a pregnant person on whether to continue a pregnancy or not is part of such a person’s right to privacy as well and, therefore, the right to life and personal liberty under Article 21 of the Constitution.
Several women annually approach the apex court and High Courts, when medical boards reject their application to access MTP beyond the gestational upper limit (now 24 weeks), seeking permission to abort a pregnancy, mostly in cases where it is a result of sexual assault or when there is a foetal abnormality.
A report authored by advocate Anubha Rastogi for the Pratigya Campaign said that in the 15 months leading up to August 2020, High Courts across the country were hearing 243 petitions of women seeking permission to abort. In February this year, the Calcutta High Court allowed a 37-year-old woman, who was 34 weeks into her pregnancy, to get a medical abortion as the foetus was diagnosed with an incurable spinal condition. The Court permitted this after the State Medical Board rejected the woman’s application to get MTP. This judgment allowed abortion for the furthest gestational age in the country so far.
What are the criticisms against the abortion law?
According to a 2018 study in the Lancet, 15.6 million abortions were accessed every year in India as of 2015. The MTP Act requires abortion to be performed only by doctors with specialisation in gynaecology or obstetrics. However, the Ministry of Health and Family Welfare’s 2019-20 report on Rural Health Statistics indicates that there is a 70% shortage of obstetrician-gynaecologists in rural India.
As the law does not permit abortion at will, critics say that it pushes women to access illicit abortions under unsafe conditions. Statistics put the annual number of unsafe and illegal abortions performed in India at 8,00,000, many of them resulting in maternal mortality.