While the Medical Termination of Pregnancy (Amendment) Act 2021 garnered praise, abortion in India is still a question of morality concerning many religions. Even though India promulgated the Medical Termination Act in 1971, it was fraught with issues that were left unaddressed. Is the amendment successful in undoing the fallacies of the principal Act? What has been the role of the Indian Judiciary in this respect? Rujuta Joshi writes about the history of legalising abortion in India. She moves from the making of the MTP Act 1971 to the promulgation of MTP (Amendment) ACT 2021.
She also discusses the role of the Indian Judiciary, society and several administrative issues, which kept India from realising a woman’s choice and agency over her own body.
By Rujuta Joshi, a fourth-year student of Bachelor of Ayurvedic Medicine and Surgery (BAMS).
“There is no freedom, no equality, no full human dignity and personhood possible for women until they assert and demand control over their own bodies and reproductive process. The right to have an abortion is a matter of individual conscience and conscious choice for the women concerned.”
Women and their right to sexuality, fertility and reproductive health are seldom considered important enough to be discussed in the mainstream. Such conversations are often silenced due to the looming influence of the patriarchal setup of society in general. The same reflects in the kind of legislations formulated concerning issues related to women.
Abortion, in particular, has always been vexed for its ethical aspect because it implies taking away a human life. People favouring liberal abortion present an argument based on legal rationale, stating that it is a matter of pure choice for women. While those against it often come up with a religious and moral argument to counter the former.
From outright criminalising abortion to allowing it on specific grounds and now finally approaching abortion laws more liberally, we have come a long way. Despite this liberal outlook, there’s a lot that needs altering.
History of Abortion Laws In India
British India dubbed abortion as a ‘criminal act’ in the Indian Penal code 1860 and the Code of Criminal Procedure 1898. The colonial regime made it a punishable offence for both the woman or any other person who intended to do so with or without the women’s consent.
Sections 313 to 316 are specified under the title: ‘Of the causing of miscarriage, of injuries to unborn children, of the exposure Of infants, and of the concealment of births’ in the IPC 1860.
The same elaborately explain the term ‘causing miscarriages’ of an unborn child both in gestation and after. These sections allowed only medically indicated abortions done in ‘good faith’ to save women’s lives.
In fact, at the start of the twentieth century, abortion was illegal in almost every country of the world. But Roe v. Wade,  a landmark judgement by the Supreme Court of the United States concerning the legality of abortion, changed the way other countries perceived abortion laws.
The judgement brought down restrictive abortion laws, upholding the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.
The Fourteenth Amendment to the U.S. Constitution provides ‘Right to Privacy’, which also protects a woman’s rights to choose whether or not she should have an abortion. Soon after this judgement, European countries began to legalise abortion.
However, the relaxation in abortion laws in India began in 1964. Owing to high maternal mortality and morbidity caused due to unsafe abortion, in the 1960s, the Indian Government had appointed the Shah Committee, headed by Shantilal Shah. The Committee was set up to review the situation on maternal deaths due to septic abortions.
The Committee carried out a detailed analysis of the socio-legal and medical aspects of abortion and recommended legalising abortion on both compassionate and medical grounds. Their recommendations led to the Medical Termination of Pregnancy Act, 1971(MTP Act).
Specificities of the Medical Termination Of Pregnancy Act 1971
The MTP Act 1971 consist of just eight sections and deals with various aspects like time, place and circumstances in which a pregnancy can be terminated.
It allows abortion on the grounds of pregnancy due to failure of contraceptives, rape, grave physical or mental harm to the woman. It allows termination in situations where there is a substantial risk to the foetus, for instance, if the foetus suffers from severe physical or mental abnormalities to be seriously handicapped.
It also allowed medical termination up to twenty weeks of gestation. The Act made it obligatory to obtain consent from the mother or consent from the guardian if the woman is a minor or ‘lunatic’.
Though this legislation was noble in its intention and purpose, it left a lot to be desired due to implementation and logistical hindrances.
What’s Wrong with the Medical Termination Of Pregnancy Act 1971?
The Act states that when the length of pregnancy is within twelve weeks, the opinion of one medical practitioner is required to abort the foetus lawfully. And if the length of pregnancy is between twelve to twenty weeks, the woman needs the opinion of two medical practitioners to proceed with the abortion.
However, women in rural areas struggle to find registered medical practitioners who have all the facilities and training to provide abortion services. The All-India Rural Health Statistics (2018-19) indicates there are only 1,351 gynaecologists and obstetricians in community health clinics in rural areas across India. And we fall short of 4,002, which means there is a 75% shortage of qualified doctors.
India lacks a sufficient number of trained medical personnel as compared to our population. The scarcity of medical practitioners and services often force women to resort to unsafe ways to abort and encourages quackery.
One of the ways to resolve this issue would be to train more service providers. The same could be done by increased staffing, simplifying procedures for abortion, making people aware and designing legislations that can keep up with technology.
Technology in medical science is far ahead of when the MTP Act was promulgated in 1971. This Act was also ignorant towards the change in technology, and the same was not recognised until the Medical Termination of Pregnancy (Amendment) Act 2020 was staged ahead of the parliament.
Advancements in technologies in medical science have enabled streamlining procedures for abortion in late pregnancy. Now, doctors can detect defects in the foetus even after the twentieth week. However, this law allowed abortion up to the twentieth week, leading to scratchy implementation and a stuck-up approach.
Several petitions were filed before introducing the MTP (Amendment) Act 2021, highlighting the irregularities in the principal Act 1971. However, even the courts have responded erratically. Therefore, we have a confusing set of judgements and orders, all of which have been different in their approach to implementing the MTP Act 1971.
In Nikhil D. Dattar v. Union of India, Section 3 and 5 of the MTP Act was challenged on the ground of non-inclusion of eventualities vires of the Act. In this case, the foetus was diagnosed with a complete heart block in the twenty-sixth week of pregnancy. And thus, the woman had sought termination of pregnancy.
The petitioner argued that Section 5(1) of the MTP Act should be read down to include the eventualities in Section 3. And consequently, a direction should be issued to the respondents to allow them to terminate the pregnancy. But, the court said that it was not empowered to decide upon a statute and relief under Section 5 can only be granted if it can be proved that non-termination of pregnancy would threaten the life of the mother. Thus, this petition was dismissed.
However, in a similar case, the Calcutta High Court granted permission to abort a foetus in the twenty-fifth week of pregnancy. Additionally, the Supreme Court permitted a twenty-four-week pregnant rape survivor to go for an abortion in Ms X v. Union of India. This obscurity results in deep anguish for mothers.
Further, the provisions in the MTP Act 1971 were unclear about allowing abortion for unmarried women for pregnancy due to contraceptive failure. This ambiguity needed to be corrected as there is a considerable stigma attached to having a non-marital pregnancy.
Barriers of POCSO Act and PCPNDT Act
Prevention of Children from Sexual Offences Act,2012(POCSO Act) and the Pre-Conception Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT) prove to be significant barriers in implementing the MTP Act 1971. Due to these two laws, doctors often hesitate in providing abortion services to women and young girls.
POCSO Act makes it legally obligatory for doctors attending to a termination of a pregnant minor to report such cases to law enforcement authorities. If the doctor does not report and goes ahead with the abortion process, they can be legally prosecuted.
As a result, minors do not prefer going to registered doctors and carry out abortion in an unsafe manner. This defeats the entire purpose of the MTP Act, violating the clause of ‘anonymity’.
The judicial response concerning termination of pregnancy is one of the many concerns that hinder the implementation of the MTP Act. The sluggish nature of administrative and judicial responses have often led to delay beyond reparation. For instance, in Ms Z v. The State of Bihar and Others, a pregnant woman from Patna in Bihar had HIV. She was homeless and came to know about the pregnancy only seventeen weeks later.
First, the hospital denied her request, which itself was illegal since the woman was an adult and less than twenty-week pregnant. Second, the high court denied her termination. And finally, when the Supreme Court recognised that she had been violated, it was already more than twenty-six weeks to her pregnancy. And her plea for abortion was rejected on exceeding the gestation limit under the law.
According to the 2018 report by the Centre for Reproductive Rights titled ‘Ensuring Reproductive Rights’, this case was one of the thirty petitions submitted in the Supreme Court in nine years by women whose gestational limit had exceeded.
Furthermore, between May 2019 to August 2020, 243 appeals were filed before high courts and one appeal before the Supreme Court. These numbers were high, even though the Act explicitly mentioned that woman pregnant before the twenty-week gestation period could abort. This rate could be increasing due to the lack of awareness among women from socially and economically vulnerable sections.
Therefore, there is a dire need to fast-track these petitions, giving a petitioner a fair chance to abort safely.
The Medical Termination of Pregnancy (Amendment) Act, 2021
Addressing some concerns, the Indian Government introduced the MTP (Amendment) Bill in March 2020. The same was passed in both Lok Sabha and Rajya Sabha in March 2021. The Medical Termination of Pregnancy (Amendment) Act 2021 increases the limit of termination of pregnancy to 24 weeks.
Therefore, the termination of pregnancy in the gestational period of less than 20 weeks would require an opinion from one medical practitioner instead of the earlier limit of twelve weeks. And termination in twenty to twenty-four weeks would require an opinion of two registered medical practitioners, as opposed to twelve to twenty weeks earlier.
Suppose a foetal anomaly is detected later than twenty-four weeks into the pregnancy. In such cases, a medical board consisting of a gynaecologist, paediatrician, radiologist or any other members will diagnose and address the same.
Additionally, if any doctor reveals the details of women undergoing an abortion, they shall be punishable with imprisonment, which may extend to one year, or with a fine or with both.
Conclusion: More Than One Way to Look
Almost all countries disapproved of this practice until the women rights movement came to light. It ultimately took some landmark judgments to wake up the rest of the world of its slumber.
Another issue is that some religions raise moral objections to terminating a pregnancy by abortion. A woman undergoing a personal ethical dilemma needs to bear added pressure from religious institutions and their families.
However, these legislations could not change the societal composition of countries and erase the stigma attached to a woman openly talking about her rights regarding her body. In India, the baggage of societal evils is seen to be more compared to the impact of a law looking after woman’s rights.
For a conservative society, the term ‘abortion’ is viewed in a negative connotation. Abortion in the case of an unmarried woman is deemed to be totally unacceptable. Several times such rudimental notions subject young single/unmarried women to physical and mental tormenting, to the extent that many women lose their lives.
Though the awareness of family planning is gradually increasing, there is a need to speed up the same and process it on a broader scale. There is also a need to speak aloud on sex, abortion, reproduction and reproductive health within family institutions, especially in tier-three and four cities and villages.
Some oppose abortion as a means of taking human life, advocating that no human should be allowed to take the life of another even if the latter is an unborn child. Although this is righteous, it is also argued that abortion should be a women’s own prerogative as it is her body.
Those advocating for women’s right often argue that the foetus is not an independent entity of life during the first trimester of pregnancy, as he cannot survive independent of the mother. Therefore, abortion does not amount to murder or taking away human life. Another argument often advanced is that early motherhood could have adverse effects, including financial, mental and social for the mother and child.
But there’s no reason why abortion shouldn’t be considered a woman’s fundamental right to practice her choice. Therefore, the state should empower women by granting them the choice to look after their reproductive health by not snatching their agency. Even the Amendment Act 2021 gives more value to a medical board after twenty-four weeks over a women’s will, body and economic and mentally capacity to bear the child.
 Gupta B, and Gupta M, ‘THE SOCIO-CULTURAL ASPECT OF ABORTION IN INDIA: LAW, ETHICS AND PRACTISE’ (Ili.ac.in, 2016) <https://ili.ac.in/pdf/p10_bhavish.pdf> accessed 18 April 2021.
 Hirve S, ‘Abortion Law, Policy And Services In India: A Critical Review’ (Taylor & Francis, 2005) https://www.tandfonline.com/doi/full/10.1016/S0968-8080%2804%2924017-4
 410 U.S. 113 (1973).
 ‘MTP ACT, 1971 | Ministry Of Health And Family Welfare | GOI’ (Main.mohfw.gov.in) https://main.mohfw.gov.in/acts-rules-and-standards-health-sector/acts/mtp-act-1971
 ‘Medical Termination Of Pregnancy Regulations, 1975’ (Bareactslive.com) http://www.bareactslive.com/RAJ/rj607.htm
 ‘MTP ACT (Amendment), 2002 | Ministry Of Health And Family Welfare | GOI’ (Main.mohfw.gov.in) https://main.mohfw.gov.in/acts-rules-and-standards-health-sector/acts/mtp-act-amendment-2002
 supra n(6)
 ‘The Medical Termination Of Pregnancy (Amendment) Bill, 2020’ (PRS Legislative Research) https://prsindia.org/billtrack/the-medical-termination-of-pregnancy-amendment-bill-2020
 supra n(1)
 ‘A Critical Analysis On The Abortion Laws In India’ (iPleaders, 2018) https://blog.ipleaders.in/critiquing-indias-abortion-laws/#_ftn181
 Ms Z v. The State of Bihar and Others(2017), SCC C.A. 10463 of 2017
 “REFORM TO ADDRESS WOMEN’S AND GIRLS’ NEED FOR ABORTION AFTER 20 WEEKS IN INDIA.” ENSURING REPRODUCTIVE RIGHTS, Center for Reproductive Rights, 2018, reproductiverights.org/sites/default/files/documents/Post-20-Week-Access-to-Abortion-India-0218.pdf.
THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT)
ACT, 2021. http://egazette.nic.in/WriteReadData/2021/226130.pdf