Evolution of Abortion Laws in India: A Journey Towards Reproductive Rights
Until the 1960s, abortion in India was illegal, with severe penalties for those involved in the procedure, except when it was necessary to save the life of the mother.
Under Section 312 of the Indian Penal Code, 1860, women attempting abortion could face imprisonment and fines. However, the landscape changed in the mid-1960s when the Shantilal Shah Committee was formed to evaluate the need for regulating abortions in India.
This committee’s recommendations led to the enactment of the Medical Termination of Pregnancy (MTP) Act in 1971, which aimed to legalize and regulate abortion procedures.
Legalizing and Regulating Abortion
The MTP Act, 1971, was introduced to legalize abortion, provide safe access to the procedure, prevent unsafe practices by untrained individuals, protect women’s lives and health, and reduce maternal mortality and morbidity. It also offered legal protection to medical practitioners who performed abortions. Initially, the law allowed abortions up to 20 weeks of gestation.
Amendments to the MTP Act
Over the years, the MTP Act has undergone crucial amendments to align with medical advancements and social needs. In 2002, the Act was modified to allow the use of medical abortion pills, such as mifepristone and misoprostol.
In 2021, another significant amendment extended the permissible gestation period to 24 weeks for specific categories of pregnant women, such as survivors of rape or incest, with the prior approval of two registered doctors. Importantly, there is no upper gestational limit for abortions in cases of fetal disability, provided it is approved by a medical board of specialist doctors established by state and union territory governments.
The Role of Medical Boards
Under the MTP Act, each state government or union territory must establish a Medical Board to oversee its implementation. This board typically comprises a gynecologist, a pediatrician, a radiologist or sonologist, and other members as specified by the government. The board’s primary role is to evaluate abortion requests and either approve or reject them within three days of receiving the request. If approved, the abortion must be performed within five days, ensuring safety measures and appropriate counseling.
Reproductive Rights and Constitutional Recognition
While the MTP Act was a significant step towards legalizing abortion in India, it initially vested the decision-making power primarily in the hands of medical practitioners.
However, in the case of Justice K.S. Puttaswamy (Retd.) v. the Union Of India And Others (2017), the Supreme Court recognized a woman’s constitutional right to make reproductive choices, as part of her personal liberty under Article 21 of the Indian Constitution. This marked a pivotal moment in the evolution of abortion rights in India, emphasizing the importance of a woman’s autonomy in her reproductive decisions.
The 2021 Amendment: Expanding Access to Safe Abortion
The 2021 amendment to the MTP Act further expanded access to safe and legal abortion services.
It allowed any woman, whether married or unmarried, to terminate a pregnancy up to 20 weeks in cases of contraceptive failure, with her prior consent. If the pregnant person is a minor or mentally ill, the guardian must provide written consent. Moreover, abortions can only be performed by registered medical practitioners in government-established hospitals or approved facilities.
Privacy and Confidentiality
The MTP Act prioritizes the confidentiality of women who undergo abortions. Doctors and hospitals are prohibited from disclosing any information about such procedures to anyone except those authorized by law. Violating these privacy provisions can lead to imprisonment or fines.
Recent Judicial Rulings: Strengthening Reproductive Rights
Recent judicial rulings in India have further solidified a woman’s right to reproductive choice and bodily autonomy. In February 2022, the Uttarakhand High Court recognized the right to terminate a pregnancy on the grounds of rape, acknowledging the severe emotional and mental toll forced continuation of an unwanted pregnancy can have on a victim.
In July 2022, the Supreme Court reiterated that a woman’s right to reproductive choice is an integral part of her personal liberty under Article 21 of the Constitution. The Court criticized restrictive interpretations of the MTP Act, especially regarding pregnancies arising from consensual relationships outside of wedlock. It emphasized that the law should not infringe upon personal autonomy and bodily integrity, recognizing the evolving dynamics of relationships and society.
Conclusion: Advancing Reproductive Rights
The evolving jurisprudence surrounding abortion in India underscores a woman’s sacrosanct right to bodily integrity and her freedom to make reproductive choices. The MTP Act has evolved over the years to accommodate medical advancements and social realities, ensuring that women have access to safer abortions without compromising their dignity or confidentiality.
India’s approach to abortion stands in contrast to some other countries, such as the United States, where access to abortion has faced significant legal challenges and restrictions. India’s progressive stance on reproductive rights reflects a commitment to ensuring that women have the agency to make decisions about their own bodies and lives, reaffirming the importance of personal liberty and human dignity.
