This article is written by Diksha Paliwal. The article begins with a brief introduction of the term ‘abortion’, followed by a detailed study of various provisions relating to abortion and the separate Act, i.e., the Medical Termination of Pregnancy (MTP) Act, 1971, along with important case laws and recent developments. 

It has been published by Rachit Garg.

Table of Contents

Introduction

The term ‘abortion’, also called ‘induced abortion’, refers to the medical procedure to end a pregnancy. The practice of abortion and the laws pursuant to it have always been a topic of debate based on various customs, traditions, moral beliefs, etc. While some people consider the termination of pregnancy an intrinsic right in a woman’s life, others view it as the killing of the fetus, saying that as soon as the fetus develops in the body of a woman, it is capable of feeling pain. 

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According to a survey conducted by the Guttmacher Institute in an ongoing global study of unintended pregnancy and abortion, India noted approximately 48,500,000 pregnancies every year from 2015 to 2019. Out of this statistic, 21,500,000 were unintended pregnancies, resulting in a total of 16,600,000 abortions. More than half of the unintended pregnancies led to abortion. The number of unintended pregnancies leading to abortion has increased significantly in the past few years. Out of the total deaths during pregnancy, 5-13% are caused by unsafe abortion, i.e., 22,800- 59,280 deaths every year. This alarming rate reflects the need for proper laws and regulations to ensure safe abortions, thereby protecting the health of women undergoing abortions. 

The article focuses on the various abortion laws in India, including a brief history that led to the enactment of a separate abortion law in India, i.e., the Medical Termination of Pregnancy (MTP) Act, 1971. The article further includes various landmark cases pertaining to abortion and the judicial interpretation of the abortion laws in India. 

Meaning of abortion and miscarriage

In layman’s language, the term ‘abortion’ connotes the procedure for termination of pregnancy resulting in the death of the embryo or fetus. It is the removal of the fetus from the uterus. The legal definition of the term ‘induced abortion’ or ‘abortion’ is “untimely delivery voluntarily done to destroy the fetus.” P. Ramanatha Aiyer, in his book ‘The Law Lexicon’, defines abortion as the premature delivery or expulsion of the human fetus, i.e., before it is capable of sustaining life. It is the emptying of the pregnant uterus before it is viable. 

The term ‘miscarriage’ means the expulsion of the contents of the womb (embryo or fetus) before the period of gestation is complete. Put simply, it means giving birth to a baby before it is fully developed or viable, thus, resulting in its death. It is the spontaneous loss of pregnancy. In the medical sense, the term means the expulsion of a fetus from the uterus within six weeks after conception. 

Medically, there exist three different terms, namely abortion, miscarriage, and premature labour, that denote the expulsion of a fetus based on the different stages of gestation at which the expulsion or termination of pregnancy is carried out. The term abortion is used when the termination of pregnancy is carried out before the placenta is formed, i.e., within the first three months of pregnancy, whereas miscarriage denotes the expulsion of the fetus within the first fourth-seventh month of gestation before it is viable or developed. The third term, i.e., ‘premature labour’ means delivery of a premature baby possibly capable of sustaining life. 

Both of the above terms are often regarded as synonymous with each other. Taylor, in his Principle and Practice of Medical Jurisprudence (13th edition), states that the terms ‘miscarriage’ and ‘abortion’ is legally synonymous since the fetus is regarded as human life from the moment of fertilization. In the case of Jacob George v. State of Kerala (1994), the Apex Court, while dealing with these two terms, i.e., abortion and miscarriage, held that ‘miscarriage’ connotes ‘spontaneous abortion’ whereas ‘abortion’ is said to be ‘miscarriage produced by unlawful means’. The Court further opined that the destruction of the life of a fetus is abortion or miscarriage. 

Abortion in India: legal or not

The landmark case of Roe v. Wade (1973), relating to women’s rights to abortion, persuaded many countries to enact a law allowing women to terminate pregnancy on the premise that women are entitled to the individual right of bodily autonomy. In the above-mentioned case, the US Supreme Court opined that a woman has the right to make decisions about her pregnancy and that it deserves the highest level of constitutional protection. The Court further stated that the state has the power to make certain restrictions or bans to protect maternal health, thus declaring that this constitutional right is not absolute. The case has been an influential factor with a global impact, and since then, many countries have legalized abortion. 

As far as India is concerned, it enacted a law just a few months before the pronouncement of the judgment in Roe’s case. The Parliament enacted the Medical Termination of Pregnancy (MTP) Act in 1971, which came into force on April 1, 1972. Thus, abortion in India is legal, although it is allowed under certain specific conditions only as prescribed under the MTP Act. 

The question that arises is that despite there being a law that allows women to terminate a pregnancy, are these provisions fulfilling the purpose of its enactment? Are the women out there able to use these provisions and get an abortion? The answer to these questions lies in various real-life instances of women who, due to some or other legal procedures, could not get an abortion done. The Centre for Enquiry into Health and Allied Themes (CEHAT), a Mumbai-based research institute, conducted research into this and interviewed women from different regions to find out the prevalent scenarios relating to abortion. One such woman shared her experience. She was stuck in an abusive marriage and found out that she was 8 weeks pregnant with an unwanted pregnancy, so she wanted to go for an abortion. However, the hospital staff insisted that she must get consent from her husband and a no-objection certificate from the police. Surprisingly, the law concerning abortion nowhere requires such permission, and sadly, this is not the story of just one woman but of most of them. 

Such scenarios point out the petty conditions of these women and how, even after the enactment of laws for the termination of pregnancy, the state and the inefficient system stand in the way of the rights of a woman. Despite there being a legal framework and a set of rules and regulations, the present scenarios and the studies conducted by various national and international institutes show that abortion is still a frantic and challenging experience. 

The Supreme Court in the case of Suchita Srivastava & Anr v. Chandigarh Administration (2009) held that a woman has the right to make reproductive choices and that it comes under the ambit of Article 21 of the Indian Constitution. The Court further opined that this right to make reproductive choices includes both procreation and abstaining from procreation. However, while considering the situation of a lady when she is pregnant, the Court opined that such conditions are to be viewed in terms of the MTP Act, 1971, and that the conditions mentioned in the Act are to be treated as reasonable restrictions. 

The Apex Court in the case of Justice K. Puttaswamy v. Union of India and others (2017), opined that a woman has the right to make choices relating to her reproductive health and related matters. Emphasizing this, the Court stated that this is a constitutional right since it relates to the right to privacy, dignity, and bodily integrity, which is covered under Article 21 of the Indian Constitution. However, despite the prevalent laws relating to abortion and the judicial precedents, the present scenarios reflect the inefficiency of the authorities in the proper implementation of these laws and precedents. Effectively implementing these provisions and a right-based approach to the abortion laws is crucial so that they become easy to access, thereby saving the lives of several women. 

Abortion laws in India

The practice of abortion is as old as human civilization, however, despite being a prevalent practice for centuries, it is still considered taboo. Society, the government, and the other authorities in power have always tried to regulate and control it. 

The termination of pregnancy was illegal in India before the 1970s, it was only after the enactment of the MTP Act, 1971, that the medical termination of pregnancy was allowed, although under certain specific conditions expressly mentioned in the Act. Apart from this, the earliest legislation that contains provisions for abortion is the Indian Penal Code, 1860. 

With the advancement of time and the development of judicial precedents, abortion is now also considered a constitutional right guaranteed under Article 21 of the Constitution. Also, various judicial decisions show that the right to deny forceful abortion has also been dealt with under Article 14 of the Indian Constitution. 

Let’s have an overview of the laws prevalent in India that deal with abortion. 

Indian Penal Code, 1860

The provisions enacted under the IPC were in conformity with the English law prevalent at the time. Abortion, as per the provisions of the Code, was declared a crime except when done to save the life of a mother. In pursuance of the act of abortion, both the mother and the abortionist were made guilty of the aforesaid offence, except when done in good faith. Sections 312-316 of the Code declare the practice of abortion an offence, except when done to save the life of the pregnant woman. 

Section 312 of the IPC states that whoever voluntarily causes miscarriage (spontaneous abortion) shall be held guilty of the offence of causing miscarriage. The Section comes with the exception that a person causing a miscarriage will not be held guilty if the act is done to save the life of a woman who is pregnant. The above-said provision deals with two kinds of miscarriage, namely, when miscarriage is caused by a woman bearing a child and when a woman is quick with a child. The second situation is when the movement of the fetus can be felt (mostly after 15-16 weeks of conception). In the case of the first kind of miscarriage, the accused will be punished for a term which may extend up to three years with a fine, and in the second situation, the imprisonment will be for a period which may extend up to seven years with a fine. The provision also includes the woman herself, who is responsible if she is the one who caused the miscarriage. 

Section 313 of the IPC deals with the causing of miscarriage without the consent of the woman. Under this Section, it is immaterial whether the pregnant woman was quick with a child or not, the punishment will be for a period of 10 years, which may extend to imprisonment for life with a fine.  

Section 314 talks about the situation wherein the act of miscarriage causes the death of a woman. It makes the person guilty of an offence who does any act with the intention of causing miscarriage, which in turn results in the death of the woman. The person guilty of the above-said offence is liable for punishment, which may extend up to 10 years along with a fine. The provision further provides that if the act is done without the consent of the woman, then the person behind the act shall be punished with imprisonment for either up to 10 years or imprisonment for life. It also states that the knowledge of the offender that his or her actions may cause the death of the pregnant woman is not an essential ingredient to prove him guilty under this provision. 

Section 315 of the IPC deals with the act done by a person to prevent the birth of a child (preventing the child from being born alive/stillbirth) or the act done which leads to the death of the child immediately after being born. Such an act is punishable with imprisonment, which can extend up to 10 years with or without fault. The provision makes an exception for the act done in good faith to save the life of the pregnant woman. 

The next provision, i.e., Section 316, deals with the act amounting to culpable homicide. A person who does any act under such circumstances to cause the death of the quick child and thereby causes the death of the child will be held liable under this offence. The provision provides for imprisonment, which may extend up to 10 years with a fine. 

Constitutional provisions 

Although no provision under the Indian Constitution expressly talks about abortion or miscarriage, the country’s courts have time and again held that the right to abortion is safeguarded under the Constitution of India. Article 21 of the Constitution states that no person shall be deprived of his right to life and personal liberty, as interpreted by the Apex Court and the High Courts in a plethora of judgments, including a woman’s right to reproductive choices, i.e., to procreate and to abstain herself from procreating. As discussed in the earlier paragraphs, two of these judgments that held that Article 21 includes a woman’s right to abortion are Suchita Srivastava & Anr v. Chandigarh Administration (2009) and Justice K. Puttaswamy v. Union of India and others. (2017). 

In pursuance to Article 14 of the Constitution, the Apex Court has held that forcible sterilization or abortion of a mentally retarded person is a violation of the right to equality (Suchita Srivastava case).

Preconception and Prenatal Diagnostic Technique Act, 1994

The primary objective of the enactment of the Act was to restrict prenatal diagnostic techniques to control the rising issue of female foeticide and other issues related to such prenatal diagnostics. However, the Act also ensures the practice of safe abortion, though it does not expressly deal with the provisions relating to the same. 

Medical Termination of Pregnancy (MTP) Act, 1971

Before the enactment of this Act, abortion was illegal in India and was an offence under the Indian Penal Code, 1860 except when done in good faith to save the life of a pregnant woman. The name of this Act was chosen deliberately as what it is rather than giving it a name that reflects abortion in it to avoid hurting any religious sentiments and moral beliefs. The nomenclature was also done in a way to reflect the medical reasoning behind permitting such practices. The Act came into force in 1973.

History of the enactment 

To formulate proper laws relating to abortion, a committee named the Shantilal Shah Committee was established by the Central Family Planning Board of India in 1964. The government appointed the aforesaid committee under the leadership of a medical professional. It was formed to look at the issues and concerns relating to abortion and determine whether the present conditions demand that a law be enacted to make abortion legal or not. The committee prepared its report after a careful overview of all the socio-cultural, medical, and legal aspects. In the report, it was suggested that abortion must be legalized in India, and it also suggested the enactment of a comprehensive law relating to abortion care and other related issues. The recommendations were mainly made after looking into the high maternal mortality rates and rising cases of unsafe abortions. 

A medical termination bill was placed before the Lok Sabha and Rajya Sabha based on the recommendations of the Shantilal committee. The bill was passed in Parliament in August 1971 and received presidential assent on 10 August 1971. 

Objective and applicability 

The Act was primarily enacted to reduce unsafe abortions and establish a proper procedure for the regulation of abortion across the country. The Act was initially not applicable to Jammu and Kashmir. However, after the repealing of Article 370 of the Indian Constitution, it now applies to the whole of India. It was enacted to provide a separate law for the termination of pregnancies under certain specific conditions by registered medical practitioners and all the other matters related to it. It thereby legalized abortion and promoted safe abortion. It also aims to prevent abortion by untrained persons. Apart from this, it also aims to curb the issue of increasing maternal mortality and maternal morbidity rates. 

Definitions 

Section 2 of the MTP Act, 1971 provides for definitions of terms, namely, ‘guardian’, ‘mentally ill person’, ‘minor’, and ‘registered medical practitioner’.

Termination of pregnancy

Section 3 of the Act talks about the specific conditions under which a woman can undergo abortion by a registered medical practitioner. 

Criminal litigation

Clause (1) of the Section starts with a non-obstante clause in relation to the Indian Penal Code, thus having an overriding effect on the provisions pertaining to abortion or marriage in the Code. It states that a registered medical practitioner will not be held guilty under the IPC or any other law prevalent at that time if any pregnancy is terminated by him as per the provisions of the MTP Act, 1971.

Clause (2) specifies the conditions under which the medical termination of pregnancy is allowed by a registered medical practitioner. However, these provisions are subject to sub-section 4 of Section 3. The termination of a pregnancy that does not exceed more than twelve weeks is provided under Section 3(2)(a) of the Act, whereas the termination of a pregnancy up to 20 weeks is dealt with under Clause (2)(b). It is important to note that for termination of pregnancy up to 12 weeks, an opinion by one registered medical practitioner that the same was done in good faith is necessary. In cases of termination up to 20 weeks, the opinion of at least two registered medical practitioners is required. 

The act done in good faith involves when there is a risk to the life of a pregnant woman, as provided under Section 3(2)(b)(i). The second instance of good faith is enunciated under Section 3(2)(b)(ii) of the MTP Act. It states that there is a substantial risk of any physical or mental abnormality to the child if he is born (if such a pregnancy is not terminated). The explanation I provided under this clause says that if a child is born out of rape, then such a situation will be considered a grave injury to the mental health of the pregnant woman. The II explanation provided under the Clause is that if there arises a situation in which a married woman becomes pregnant due to failure of the contraceptive method, then the anguish caused by such unwanted pregnancy will amount to grave injury to the mental health of the woman. 

Section 3(3) of the Act provides that to determine whether the continuation of the pregnancy would involve a risk of injury to the woman or not, an account of her actual or reasonably foreseeable future should be considered. 

Clause (4)(a) of Section 3 provides for the provision of termination of pregnancy of a mentally ill person or a woman who has not attained the age of majority (18 years), which should not be done without the consent of her guardian. Section 3(4)(b) of the Act provides that the above-mentioned should not be done without the consent of the pregnant woman. 

Authorized place where abortion can be done

Section 4 of the Act provides for the places where a medical termination of pregnancy as provided under this Act can be done. Clause (a) provides that it can be conducted in a hospital established or maintained by the government. Clause (b) provides that for the MTP Act, termination of pregnancy can also be conducted at a place specifically approved for this purpose by the government or a district-level committee constituted by that government with the Chief Medical Officer or District Health Officer as the Chairperson of the said committee. 

Non-applicability of Sections 3 & 4

Section 5 of the Act specifies that certain conditions under Sections 3 & 4 of the MTP Act will not apply. 

Section 5(1) provides for the condition that when the termination is immediately necessary, then under such circumstances, provisions of Sections 4 and 3(2) will not apply. Section 5(2) prescribes the punishment for conducting a termination of pregnancy by anyone other than a registered medical practitioner. It prescribes rigorous imprisonment, which shall not be less than 2 years but can extend up to 7 years. A punishment for a period which shall not be less than years of rigorous imprisonment but which may extend up to 7 years is provided under Section 5(3) for terminating a pregnancy in a place other than the place prescribed under Section 4. The owner of a place wherein such termination of pregnancy is carried out, which violates the provision under Section 4, shall be punished with rigorous imprisonment for a term which shall not be less than 2 years but which may extend to 7 years as per Section 5(4).

Power to make rules

Section 6 of the Act gives the government the power to make rules for the implementation of this Act. The state governments have been empowered to make regulations to carry out the provisions of this Act under Section 7 of the Act. Section 7(3) of the Act provides for punishment in the event of non-compliance with the regulations made by the state government. 

Protection provided under the MTP Act

Section 8 of the Act provides that no person shall be held liable or that no proceedings shall lie against any registered medical practitioner whose act has caused any damage in pursuance of anything done as per the provisions of this Act, provided the act is done in good faith.

Constitutionality of Sections 3(2), Explanation 2 of Section 3(2), Section 3(4) & Section 5

The constitutional validity of the above-said section has been challenged by filing a Writ before the Apex Court under Article 32 of the Indian Constitution. The petitioners contend that the aforesaid Sections are violative of the fundamental rights enshrined under Articles 14 and 21. The constitutional validity was challenged in the case of Swati Agarwal & Ors. v. Union of India (2019). However, it has yet to be decided and is thus pending adjudication before the court. 

The constitutionality of Clause (2)(a) of Section 3 is challenged as it puts restrictions on the reproductive choice of the woman since it mandates the opinion of a registered medical practitioner. This mandate of compulsory opinion puts an undue burden on the woman who wishes to terminate her pregnancy. Clause (2)(b) of Section 3 is challenged based on the permissible time it provides for the termination of pregnancy. The petitioner side contended that abortion, even at the later stages, has become possible due to the advancement of technology and science. The petitioners contended that the restriction of 20 weeks is very unfair and harsh. 

The validity of Explanation 2 of Section 3(2) of the Act is challenged on the premise that it violates the provision of equality enshrined under Article 14 of the Constitution. The aforesaid explanation clarifies its applicability only to married women and thus amounts to hostile discrimination against single women out there. It fails to take into account the object of terminating an unwanted pregnancy. In fact, the consequences of an unwanted pregnancy in the case of unmarried women are even more grave than those of married women. 

The validity of Section 3(4) of the Act is challenged on the premise that it is violative of Article 21 as it mandates the consent of a guardian in the cases of termination of pregnancy of mentally ill persons and minors. 

Section 5 of the Act provides for permission to terminate the pregnancy beyond the period of 20 weeks, but only on the ground of an immediate risk to the life of the woman. Thus, its validity was challenged, stating that it is violative of Articles 14 and 21 of the Constitution. It was contended by the petitioners that the provision is arbitrary and restricts a woman’s right to reproductive choices. It also states that it fails to consider various health-related aspects that may be developed at later stages and that it also fails to meet the tests of reasonableness and proportionality. 

Important amendments and rules in the MTP Act, 1971

Theoretically, the laws of our country relating to abortion are said to have a liberalized approach, but reality reflects several instances that contradict the same. Women who opt for such medical procedures have to go through so many difficulties. Also, it is important that the laws of a country relating to such issues be dynamic to cooperate with changing scenarios. Static laws tend to erode the objectives for which these laws were initially enacted. Hence, the Parliament, when the need arises, amends the laws, and the important amendments pertaining to this Act are discussed below.

The Medical Termination Of Pregnancy (Amendment) Act, 2002

The Amendment Act, 2002, replaced the word ‘lunatic’ with ‘mentally ill person’ in Clauses (a) and (b) of Section 2 of the MTP Act. The word ‘mentally ill person’ was also substituted in Section 3(4)(a) of the Act. 

The Amendment of 2002 also inserted a new provision, i.e., Section 4, which lays down the places wherein termination of pregnancy for the purposes of this Act may be carried out. 

It also inserted sub-sections 5(2)-(4) and two explanations, which laid down punishments for non-compliance with certain provisions of the Act and the meaning of the term ‘owner’ (explanation 1), along with an exception (explanation 2), respectively. 

Medical Termination of Pregnancy Rules, 2003

The 2003 Rules were published to further ensure the effective implementation of the Act and to cope with some lacunas that could not be filled in the previous amendments. The rules provided for the composition and tenure of the District level committees (Rule 3). As per it, the committee shall include a Gynaecologist/ Surgeon/Anaesthetist and other members from the local medical profession, NGO, and Panchayati- Raj institution. It also mandated the presence of a woman on the committee. Also, the rules provided for the provision of experience, training, and practice for medical practitioners under Section 2(d). 

Rule 3B mentions the categories of women that are permitted to terminate their pregnancies exceeding 24 weeks. The following categories of women are permitted; 

  • sexual assault or rape or incest survivors; 
  • minors; 
  • physically disabled women; 
  • substantial risk to the fetus;
  •  mentally retarded women; a child who may have the risk of physical or mental abnormalities if the pregnancy is allowed; 
  • a woman who is pregnant in a period of disasters, emergencies, or humanitarian settings as declared by the government for the time being.  

It further provided for a mandatory inquiry and investigation in the places where such operations were carried out. This inquiry/ investigation was to be conducted by the Chief Medical Officer (Rule 4). Apart from these provisions pertaining to approval of a place (Rule 5), cancellation or suspension of the approval certificate of the place (Rule 7), and the provision of review by the owner of the suspension or cancellation order by the government (Rule 8).

Medical Termination of Pregnancy (Amendment) Act, 2021 

Due to the insufficiency of the prevalent provision pertaining to abortion due to the advancement of science and technology, this new Amendment Act of 2021 was enacted by the Parliament. The new amendment has brought some important changes in the abortion laws, like exceeding 20 weeks in certain cases, the opinion of the registered medical practitioner, the formation of a medical board for these matters, etc. The aforesaid amendment is discussed in detail in the paragraph below. 

New abortion law in India

The Amendment of 2021 was done to carry out certain important changes in the then MTP Act of 1971. From the issue of the intrinsic right of a woman to reproductive choice to deal with the illegal use of these procedures and many more, the new Act aims to cover a wide range of issues. The Act has expanded its scope, thereby providing easy access up to a certain level on therapeutic, eugenic, humanitarian, or social grounds. The amendment is a ray of hope and an attempt to secure the safety and well-being of women. 

Historical background of the Act of 2021

The Medical Termination of Pregnancy Bill was presented by Dr Harshwardhan Goyal, the then Union Minister for Health and Family Welfare, in the Lok Sabha on March 2, 2020. The Bill received presidential assent on March 25, 2021, and thus, the Medical Termination of Pregnancy (Amendment) Act of 2021 was enacted.

 Highlights of the amendment

  • The Act of 2021 inserted two new definitions under Section 2, namely, ‘medical board’ in Section 2(aa) and ‘termination of pregnancy’ in Clause (e). The term ‘medical board’ connotes the committee or board constituted under Section 3(2C), and ‘termination of pregnancy’ means the surgical procedure or medical procedure used to terminate the pregnancy.
  • The norms or qualifications required by a registered medical practitioner as per Clause (2A) of Section 3 will be as per the rules made under this Act. 
  • It further provides for the establishment and composition of a medical board under Section 3(2C) of the Act. The board is to be constituted by the State or Central Government, as the case may be. The board shall exercise the functions and powers bestowed upon by the MTP Act or the rules formed under the Act. 
  • Section 3(2B) was inserted, which states that the provision of the limit on termination of pregnancy will not apply if the fetus is suffering from some substantial fetal abnormalities, as advised by the medical board.
  • The composition of the medical board as per Section 3(2D) will be such that it consists of a gynaecologist, paediatrician, radiologist, or sonologist; and such other members as the government may by notification prescribe. 
  • A new provision, i.e., Section 5A, was inserted, which makes it mandatory that the registered medical practitioner not disclose the information of the woman who is undergoing the abortion. The exception is also provided under the Section, which states that the information can be provided to a person authorized under any law for the time being in force, if necessary. 

Drawbacks of the new abortion law in India

The medical boards were primarily established to check whether the pre-conditions established under the Act were satisfied or not. However, several recent incidents show that these boards are often seen interfering in issues of the viability of the fetus, the possibility of corrective surgery, judging on social stigmas and taboos, moral policing, etc. Thus, in certain cases, these boards have proven to be a hindrance to women wanting to terminate their pregnancies. 

The Act further provides the right to abortion only to certain women falling into the categories mentioned under the Act. Thus, discriminating against other women who do not fall under this category. It fails to have a right-based approach but rather has a restrictive approach. The right to abortion is an intrinsic right of a woman, and thus, this Act infringes the same and fails to provide complete autonomy to the women who choose to terminate their pregnancy. 

Case laws involving abortion

The High Courts and the Supreme Court have time and again adjudicated various matters pertaining to a woman’s right to abortion in pursuance of the prevalent laws at that time. Below are some important judgments by the Indian courts in cases involving abortion. 

Nand Kishore Sharma and Ors. v. Union of India (2005)

Facts of the case

The petitioners in the above-said case filed a PIL before the High Court of Rajasthan challenging Sections 3(2)(a) and (b) of the MTP Act, along with Explanations I and II provided in Section 3. The petitioners contended that these provisions infringe on the fundamental right of a woman protected under Article 21 of the Indian Constitution. 

Issue before the Court

The Rajasthan High Court had to decide whether these provisions under challenge were inconsistent with Article 21 of the Indian Constitution. 

Judgment of the Court

The Court, while dismissing the petition, held the sections under challenge to be valid. It emphasized the object of the MTP Act and opined that this law was enacted to make provisions relating to abortion as stringent and effective as possible. In no way were these provisions enacted to allow the blatant termination of pregnancy. 

Suchita Srivastava and anr. v. Chandigarh Administration (2009)

Facts of the case

In the present case, a Special Leave Petition was filed challenging the order passed by the Division Bench of the Punjab and Haryana High Court, wherein it was ordered that it is in the interest of a mentally ill or retarded person to undergo an abortion. In the present case, the pregnant woman was a victim of rape and an inmate of a government-run orphanage. The respondent herein approached the Punjab and Haryana High Court for approval of the termination of the victim’s pregnancy, contending that she is mentally retarded and that it would be better for her to undergo an abortion. Usually, in such cases, the courts appoint an expert body that inquires into the matter, considering all the relevant medical and other factors. Also, due weightage is given to the reports suggested by these bodies when dealing with cases of abortion. In the present case, the expert committee’s report reflected that the woman was willing to continue with the pregnancy. Despite the woman’s consent, the Court ordered the termination of the pregnancy. Being aggrieved by this, the present petition was filed before the Hon’ble Apex Court. 

Issue before the Court

Whether the High Court rightly ordered the termination of the pregnancy of the mentally retarded woman despite her willingness to continue the pregnancy?

Judgment of the Court

The Supreme Court reversed the decision of the High Court and ordered that since Section 3 of the MTP Act mandates the consent of the pregnant woman, it would be wrong to forcibly order the termination of pregnancy. The Court further opined that such forcible termination of pregnancy would be violative of Article 21, especially when the woman has clearly shown her willingness to continue with her pregnancy. The Court, while considering various previous judicial decisions, stated that a woman has a right to make reproductive choices and that this includes both procreation and abstaining from procreation, though the state has a reasonable say in the matter, and these work as reasonable restrictions. 

Devika Biswas v. Union of India (2016)

Facts of the case

In the present case, a PIL was filed by the social activist against various practices adopted by the state governments pertaining to the mass sterilization of both males and females. It was found that in various cases, even the consent of the patient undergoing sterilization was absent. It was also found that these procedures were being conducted in dangerous and unsanitary sterilization camps. 

Issue before the Court

The issue before the court was to decide the validity and rightfulness of this practice of the government in pursuance of the fundamental rights enshrined in the Constitution. 

Judgment of the Court

The Apex Court, while adjudicating and considering all the facts, held that such a practice of sterilization is violative of Article 21, thereby stating that a person has a right to reproductive choice and that it falls within the ambit of Article 21. 

Meera Santosh Pal v. Union of India (2017)

Facts of the case

In this case, the petitioner approached the Apex Court under Article 32 of the Constitution, thereby seeking permission from the Court to allow her to terminate her pregnancy. It was discovered in the tests that her fetus was diagnosed with anencephaly (a severe medical congenital condition in which a large part of the brain is absent). A direction was issued by the court to the respondents for the examination of the petitioner’s condition by the medical board. At this time, the petitioner was 24 weeks pregnant. 

Issue before the Court

The issue before the Court was to determine whether the pregnant woman should be allowed to terminate her pregnancy or not after the inspection by the board.

Judgment of the Court

The Supreme Court ruled in favour of the petitioner while placing reliance on the Suchita Shrivasta case (discussed in the above paragraphs) that this choice of a woman falls under the protection guaranteed by Article 21 of the Constitution. The Court also emphasized the point of the consent of a woman in both termination and continuation of pregnancy. 

Mrs X and Ors. v. Union of India  (2017)

Facts of the case

In the present case, the petitioner was a 22-year-old woman who was around 22 weeks pregnant. The petition was filed under Article 32, thereby asking for allowing her to terminate her pregnancy. The petitioner contended that she was diagnosed with a condition known as bilateral renal agenesis and anhydramnios. It was also placed on record by her that the continuation of this pregnancy may endanger her life and that the fetus has no chance of survival. 

Issue before the court

The issue before the court was to decide whether the petitioner should be allowed to terminate her pregnancy or not. 

Judgment of the Court

The Supreme Court, after receiving the report from the medical board, allowed her petition, thereby permitting her to terminate the pregnancy. Reliance was placed on the Suchita Shrivastava case, wherein it was held that the right to terminate pregnancy comes under the ambit of Article 21. 

Minor R Thr Mother H v. State Of Nct Of Delhi & Anr. (2023)

Facts of the case

In the present case, the petitioner, a minor, has filed a writ petition before the Delhi High Court under Article 226, seeking issuance of a writ of mandamus, thereby directing the medical board to carry out the termination of her pregnancy under the new amendment to the MTP Act of 2021. The minor was about 14 and was raped by the accused, against whom an FIR was also lodged. Initially, the minor, in fear, did not tell her mother about the fact that she had missed her periods for the past four months. However, when the mother noticed certain changes, she took her to the hospital, where the pregnancy test was found positive, and after undergoing the pre-natal diagnostic tests, it was found that she was 24 weeks and 5 days pregnant. When they approached the medical board via the procedure prescribed, the board denied carrying out the abortion since it exceeded the maximum limit of 24 weeks. The board then asked the mother to approach the Hon’ble High Court, and so this petition was filed. 

Issue before the Court

Whether the victim should be permitted to carry out the abortion exceeding the time of 24 weeks of pregnancy?

Judgment of the Court

The Delhi High Court allowed the minor’s plea for termination of pregnancy. It also issued certain guidelines that are to be followed in rape and sexual assault cases where the victim’s pregnancy exceeds 24 weeks. The following guidelines were issued by the Court:

  • Mandatory ‘urine pregnancy test’ of the victim of sexual assault or rape at the time of medical examination.
  • In case of a major victim, if found pregnant due to sexual assault or rape, expresses her will to abort the pregnancy, she has to be produced before the medical board on the same day by the investigating officer.
  • The Court further directed the government to ensure that the provisions of the MTP Act are implemented effectively and that medical boards must be constituted in all government hospitals to ensure the proper functioning of MTP centres. 
  • In the case of a minor victim who is pregnant, must be produced before the medical board, upon the consent given by her legal guardian for the same and for the abortion as well. 

Abc v. State Of Maharashtra (2023)

Facts of the case

In the present case, the petitioner approached the court to direct the medical board to carry out the termination of her pregnancy, which is around 33 weeks. The case of the petitioner is that initially when she went for sonography at 14 weeks of pregnancy and a fetal anomaly test, the results were normal. Later on, when she went again for the tests in the 29th week of pregnancy, certain fetal anomalies were discovered. The fetus was diagnosed with microcephaly and lissencephaly. Following this, the petitioner was admitted to a hospital, and after a few days, a medical board was constituted. The board, in its report, confirmed the fetal abnormalities. However, it stated that there was no such substantial risk to her life and hence denied the petitioner’s request for termination of her pregnancy. The petitioner stated that since they are not financially sound and various difficulties may arise in taking care of the child if he is born, she may be allowed to undergo an abortion. The board advised not to, and so the petitioner sought the judicial intervention of the Hon’ble High Court of Bombay. 

Issues before the Court

The issue before the court was whether to allow such abortion or not after asking the board to look into the factors like whether an infant born with such abnormalities will require extensive care, continued medical care, expenses for the same, etc.  

Judgment of the Court 

The Bombay High Court allowed the request of the petitioner to undergo an abortion while she was 33 weeks pregnant. It also quashed the recommendations of the medical board, wherein the board advised not to terminate her pregnancy because of the length of the pregnancy. 

Conclusion

Abortion in India was made legal after the enactment of the MTP Act, 1971. Before this, it was a punishable offence under Sections 312-316 of the IPC. The 1971 Act allowed termination of pregnancy under certain specific conditions specified under the Act. Recognizing a woman’s right to reproductive choices is an essential part of a free country, and thus, providing laws and regulations in favour of the same is very important. A woman’s right to safe abortion is desirable, and it is of utmost importance that the state must not interfere in the same, except in exceptional cases. The progressive approach taken by India in issues relating to abortion is commendable since we have much more liberal laws than most countries, yet we have miles to go. It is seen that in several incidents, easy access to abortion has just been a privilege that women in urban areas enjoy. Women in rural areas still do not have access to better facilities for the termination of unwanted pregnancies. Even the new amendment fails to consider certain important aspects of the laws that must be inserted or amended, as discussed in the article. Making safe abortion easily accessible to every woman, irrespective of any factor like her marital status, background, etc., is of paramount necessity. 

FAQs

What are some difficulties that arise in the effective implementation of various policies pertaining to the availability, accessibility, and safety of induced abortion services?

The uneven expansion of abortion services in the lower level or the rural areas, the unavailability of qualified doctors in the small districts and villages, the taboo of abortion, and the clashes of the provisions of the POSCO and PCPNDT Act with the MTP Act, i.e., the barrier of age in different Acts and the conditions attached with it are some apparent difficulties that have dampened the proper and effective implementation of various government abortion policies. 

Which department of the government ensures access to safe abortion in India?

The National Health Mission ensures access to safe abortion, thereby attempting to reduce the maternal mortality rate in the country. 

What are the provisions that talk about forced abortions?

The Indian Penal Code, 1860, as discussed in detail in the above paragraphs, deals with provisions pertaining to forced abortions in Section 313, i.e., miscarriage without a woman’s consent, and in Section 314, i.e., death of a woman caused due to intent to cause miscarriage.      

What is the legal age for women for abortion in India? 

According to the laws prevalent in India pertaining to abortion, the legal age for abortion is 18 years and for this purpose marital status of the woman is immaterial. In the case of a minor, the permission or written consent of her legal guardian is necessary       

Whether father’s consent is important for abortion? 

The prevalent laws in India, concerning abortion nowhere expressly mention the weight given to a father’s consent while her spouse undergoes an abortion. Section 3(4)(b) of the MTP Act, lays down that the only person’s consent required is the woman who is undergoing termination of pregnancy. It is noteworthy that it is for the woman who has attained the majority. The Apex Court recently in the case of Anil Kumar Malhotra v. Ajay Pasricha (2017) has categorically held that a woman does not need her husband’s consent while undergoing abortion. The Apex Court in the aforesaid case upheld the judgment given by the Punjab and Haryana High Court. It is clear that a husband cannot force his wife to continue with the pregnancy.

In a few recent verdicts, how has the Apex Court expanded the scope of abortion rights in India?

The Supreme Court recently in the case of X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr. (2022) has held that women irrespective of their marital status, i.e., both single and unmarried women can opt for safe and legal abortion same as a married woman is entitled to. In the present case, while interpreting certain rules framed under the MTP Act, 1971 the court opined that reproductive autonomy, dignity, and privacy come under the purview of the right to choose, even for an unmarried woman. In the present case, the unmarried woman aged about 25 years knocked on the doors of the Supreme Court after her plea for allowing her to terminate her pregnancy of 24 weeks approximately was rejected by the Delhi High Court.  

What are certain unintended barriers to safe abortion for adolescent girls in India due to the prevalent conflicting laws on the same subject matter?

The present law requires the consent of a legal guardian for adolescent girls along with a mandatory reporting requirement to the police which hampers the fundamental rights of that individual. This reporting requirement often results in the unwillingness of adolescent girls to approach health providers. This blanket requirement, i.e., the mandatory guardian’s consent is unrealistic and thus, becomes a problematic one. Also, such barriers are a sheer example of the violation of the reproductive autonomy of the girl. The POSCO as well as the MTP Act makes the guardian’s consent compulsory, and hence medical providers due to the fear of prosecution often decline the adolescent girl for abortion in cases of absence of such consent, however urgent the situation may be. Apart from this, other legal ambiguities that are discussed in the article often hamper medical practitioners from performing abortions for fear that they might violate any law.   

Does the woman’s decision to undergo an abortion amount to cruelty toward her husband?

Recently, the Supreme Court in the case of Samar Ghosh v. Jaya Ghosh (2011) held that a wife’s unilateral decision of undergoing vasectomy or abortion, especially without any medical reason, may amount to mental cruelty.  

References 

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