Abortion In India: What Does The Law Say?

“No woman can call herself free until she can choose consciously whether she will or will not be a mother.” – Margaret Sanger

With Roe vs Wade overturned, let us see what we know about Indian Abortion Law.

There has not been a “Roe moment” in India; no case at the Indian SC has had the same lasting influence on Indian abortion law as Roe did in the US. However, this does not imply that Indian courts do not address the abortion issue because there has not been a significant constitutional case on the subject. Over time, more Indian women seeking abortions outside the legal parameters have appealed to the courts, particularly the High Courts and the Supreme Court, asking for permission to end undesirable pregnancies.

In India, before 1971, the Indian Penal Code, 1860, made abortion (‘intentional miscarriage’) a criminal offence under Section 312. Anyone who voluntarily induced a pregnant woman to miscarry might face three years in prison and/or a fine, and a woman who used the service could face seven years in prison and/or a fine, with the exception of situations where abortions were performed to save the woman’s life.

The Medical Termination of Pregnancy (MTP) Act, 1971, is the exception to this law. The Act enables women’s accessibility to safe and legal abortion services which indicate that abortion in India has been legal for the past 50 years.

[The Medical Termination of Pregnancy Act, 1971 (https://main.mohfw.gov.in/acts-rules-and-standards-health-sector/acts/mtp-act-1971)]

History Of The MTP Act

The MTP Act was first presented to Parliament in 1970, eventually passed in August 1971, and then went into effect on April 1, 1972, after the Government outlined guidelines for its application. Since then, the Act has undergone one modification in 2002, and new regulations were created in 2003 and 2021.

On February 28, 2017, the Supreme Court of India refused to allow a woman to abort her 26-week fetus that would have been born with Down Syndrome. The court stated that the aborting of a 20-plus week fetus can only be permitted if the mother’s life is in danger. “It is sad that the child may suffer from physical and mental challenges, and it is unfortunate for the mother, but we cannot allow abortion. We have a life in our hands,” the court said, as reported by the Times of India.

Since then, an amendment made on March 25, 2021, increased the number of weeks a woman has to terminate her pregnancy and established several conditions under which a pregnancy may be terminated at any time.

According to India’s Ministry of Health and Family Welfare, The Medical Termination of Pregnancy Act (1971) was passed to “provide for the termination of certain pregnancies by registered Medical Practitioners and for matters connected therewith or incidental thereto.”

Before the MTP Act was passed, India experienced roughly 5 million terminations annually, of which 3 million were unlawful. According to reports, one-seventh of Indian women who become pregnant each year use risky methods of termination at the hands of untrained paramedical workers, such as nurses and midwives, increasing the risk of morbidity and mortality for both pregnant women and their unborn children.

According to the Supreme Court of India, the MTP Act’s intent was to provide a qualified “right to abortion,” which has never been acknowledged as a standard course of action for expectant mothers. The MTP Act was largely modeled after the Abortion Act of 1967, passed in the United Kingdom.

Features Of The MTP Act

While the amendment has somewhat widened access to abortions, it does not address one fundamentally flawed aspect of the MTP Act, which states that a woman does not have the ‘right’ to end a pregnancy but maybe ‘permitted’ to do so under certain specific conditions:

• Pregnancy can be terminated upon the opinion of 1 doctor before 20 weeks are complete. If pregnancy is to be aborted before 24 weeks, it needs the opinion of two doctors.
• A woman can abort the pregnancy if there is a major threat to her life due to childbirth or if the fetus is detected with some abnormalities.

Who Is Eligible To Avail Abortion?

Women who are survivors of rape and incest, widows or divorcees, have physical disabilities, or are mentally ill can undergo an abortion. Furthermore, the conditions mentioned earlier are also applicable to the availability of abortion.

Moreover, a lawyer for women’s rights, Veena Gowda, advises that if the victim is under 18, “a case should be registered under the POCSO (Protection of Children from Sexual Offenses) act.”

An unmarried woman can also avail of abortion in India. The 2020 amendment allowed contraceptive failure, especially for unmarried women, a legal right to get an abortion.

Now, for a married woman, while the consent of the spouse is not required to undergo an abortion, a spouse cannot force a woman to undergo an abortion. In such a situation, a domestic abuse case may be filed, and under IPC 312/313, the spouse may be charged with causing a miscarriage.

If a woman wants to get a pill to end her pregnancy, whether she is a minor or not, she must have a prescription from a qualified medical professional.

Now, the MTP Act specifically states pregnant “women,” hence making abortion services inaccessible to transgender persons, genderqueer and gender non-conforming, as well as others of gender diverse identity who do not identify as women.

As mentioned in a report by the Public Health Foundation of India ( https://rb.gy/mvtl9r ), to prevent abuse of the MTP Act and to ensure that abortions are not carried out at the whims and fancies of a woman or a couple, the PCPNDT (Pre-Conception and Pre-Natal Diagnostic Techniques) Act was passed in 1994.

The person having their pregnancy terminated is likewise granted privacy under the MTP Act. Any violation of this would be punishable by law.

Legalizing Miscarriage Leaves

India was one of the first countries in the world to legalize miscarriage leave.

The Maternity Benefit Act 1961 states that in case of miscarriage, a woman will be entitled to be paid leave for six weeks immediately following the day of her miscarriage.

Women are required to submit proof of miscarriage, and willful termination of pregnancy is excluded.

Women with illness arising out of a miscarriage are also entitled to a leave of up to one month on submission of relevant medical proofs.

Rate And Requirements For Abortion?

The package pricing for surgical abortion is set at Rs. 15,500 and covers consultation, therapy, hospitalization, medicine, USG, or follow-ups. Abortion is covered by the government’s public national health insurance funds, Ayushman Bharat, and Employees’ State Insurance.

For medical abortion, the package rate is set at ₹1,500, which includes consultation and USG.

( http://www.vmmc-sjh.nic.in/writereaddata/AYUSHMAN%20PACKAGES-PROCEDURES.pdf )

As per the MTP Act, pregnancy can be terminated only by a registered medical practitioner (RMP) who meets the following requirements:

• has a recognized medical qualification under the Indian Medical Council Act.
• whose name is entered in the State Medical Register.
• has such experience or training in gynecology and obstetrics as per the MTP Rules.

By default, CAC services may be offered at any government hospital. Facilities in the private sector, however, require the approval of the government.

MTP Act, 2021 also states that:

• The Medical Board has to approve or deny the request for termination within three days of receiving it.
• To ensure that the termination procedure, when advised by the Medical Board, is carried out with all safety precautions along with appropriate counseling within five days of the receipt of the request for medical termination of pregnancy.

What Are Future Implications For Abortion In India?

The Guttmacher Institute and the World Health Organization reported in a 2016 study that was published in The Lancet that between 2010 and 2014, there were an estimated 56 million abortions performed worldwide annually. These figures provide compelling evidence that abortion is an essential component of medical care and should be readily available when necessary.

It seems doubtful that India would soon witness a landmark decision securing the right to abortion, given that the majority of abortion litigation at the Supreme Court consists of individual women seeking relief in unique circumstances. The thousands of women who confront physical, legal, and societal barriers that prevent them from accessing reproductive healthcare services may suffer dramatically as a result of India’s unwillingness to recognize abortion as a “right.”

Legal, moral, and ethical conundrums arise from the term. Numerous problems arise in the areas of genetics, medicine, sexuality, law, reproductive rights, and the right to life of the fetus. There are those who oppose abortions and view the murder of an unborn child as a social tragedy and are at odds with those who believe that women should have complete freedom over their reproductive lives and that no one, not even the government, has the right to tell them what to do.

However, keep in mind that the MTP Act was created to offer some exemptions from the IPC rules that make “causing a miscarriage” a crime.

Therefore, even if the Supreme Court has recognized women’s right to make their own reproductive decisions, this right can only be fully realized if the IPC’s provisions making abortions illegal are overturned, and a woman’s decision to end her pregnancy is left up to her and her doctor.

The advantages of the MTP Act still stand; it is safe, efficient, and non-invasive.

We need to educate ourselves and especially downtrodden women who do not know their rights. Women’s Rights Are Human Rights. If any medical body does otherwise – denies abortion because you are unmarried, asks for a price higher than set by the government, or such – try to convey your rights and information to someone other than the government of law for the violation, and you have the ability to file an FIR against them as well. Know your rights.