There are certain human and fundamental rights which have been granted to
every citizen under the Indian Constitution and Article 21 is one the most
important rights among all. Right to personal liberty is the most precious,
sacrosanct, inalienable and fundamental of all the fundamental rights of
Article 211 of Indian Constitution enshrined one of the most precious fights in
the form of life and personal liberty guaranteed under chapter III of Indian
Right to abortion is a species of right to privacy, which is again proclaimed a
continuance of the right to life under Article 21. Women living in any country
regardless of whether they are established or underdeveloped, are vulnerable to
unexpected pregnancy complications. Due to various unforeseen causes, the
unwanted pregnancy could occur in that a woman should be entitled to terminate
the pregnancy. however, women faces gender inequality with empowerment and lacks
autonomy to choose to abort the unborn.
Apart from abortion being a fundamental right enriched under Article 21 of the
Constitution, International Human Rights Law also provides abortion as a human
right's guaranteed to women without any discrimination. The CEDAW Committee has
explained that "Violations of women's sexual and reproductive health and rights,
such as criminalisation of abortion, denial or delay of safe abortion and/or
post-abortion care, and forced continuation of pregnancy, are forms of
gender-based violence that, depending on the circumstances, may amount to
torture or cruel, inhuman or degrading treatment.2
In India the law of abortion was first introduced under Section 3123of Indian
Penal Code,1860 by which induced abortion was criminalised however after 1971 by
passing of Medical termination of pregnancy Act, abortion rights were granted to
certain women under certain circumstances which could be done by qualified and
registered medical practitioners within a specific time frame.
Indian Laws On Abortion: A Critical Analysis
The Right to life and personal liberty guaranteed under Article 21 of Indian
Constitution provides for protection of life and personal liberty of every
individual which can not be curtailed except by the provision established by
Abortion refers to an end of pregnancy either by taking medication or by
surgical procedures. It is a common health intervention which is safe when done
by using procedures appropriate during pregnancy duration and by someone who
possesses the required skills and expertise for the same. An abortion can be
spontaneous which is termed as miscarriage or voluntary which is referred as
In India, Abortion is not illegal as the Indian law permits a women to prefer
abortion in certain circumstances and for a certain timeframe on recommendation
of medical practitioners under the Medical Termination of Pregnancy Act, 1971
however, the Indian Penal Code,1860 provides induced abortion as a criminal
The right to abortion provided under the Medical Treatment of pregnancy Act is
only for the categories of women mentioned under the MTP Rules which can be done
by a registered medical practitioner The gestation period upper limit for
terminating a pregnancy with 1 doctor's opinion has been extended from 12 weeks
to 20 weeks, As the medical termination of pregnancy is accessible by certain
categories of women mentioned in Rule 3B of MTP Rules4 and not to all women,
hence the rate of unsafe abortion has increased in India and According to united
nations population fund report, 67% of abortion in India are unsafe and around 8
women die because of unsafe abortion every day. 5
Unfortunately, the approach towards the enactment of a legal framework for
abortion had less to do with women's rights and more to do with issues such as
family planning and potential criminal cases against medical professionals and
hence, there is a need to change the approach of the abortion law towards women
being the primary stakeholders and not just the incidental beneficiaries.
As the law permits abortion for certain categories of women and hence the rest
of female population who become pregnant in normal circumstances either married
or not with consensual intercourse and not willing to continue with their
pregnancy are left with no choice rather to go for unsafe abortion by taking
medication and hence, the law shall have a liberal with broader application.
The decision of abortion is on the doctor that whether he thinks if abortion is
for the women or not whereas the women shall have the right to choose if she is
willing to continue with abortion or pregnancy or not, Hence the existing laws
with respect to abortion in India is doctor centric and not adequately
addressing the issues of the society and there is a lack of reproductive
autonomy which needs to be addressed.
Conclusion And Suggestions
It is evident that there are certain limitations and restrictions that can pose
a challenge to women's reproductive rights. In conclusion, it is essential to
establish a more comprehensive and inclusive approach to abortion that considers
women's autonomy and health and Indian laws on abortion must prioritize women's
bodily autonomy, overall health, and well-being.
The government must ensure the availability, accessibility, and affordability of
safe and legal abortion services, which will help prevent maternal morbidity and
mortality, promote gender equality, and empower women.
Following are some suggestions in order to improve the existing law:
- Simplify the approval process:
The current law requires women to get approval from multiple authorities
before getting an abortion, which can be time-consuming and stressful.
Therefore, it is necessary to simplify the approval process, making it more
accessible and efficient.
- Increase accessibility:
Women in rural areas face several challenges when trying to access safe and
legal abortion services. The government should focus on improving the
availability of abortion services, particularly in remote and underserved
- Raise awareness:
Many women are unaware of their legal right to an abortion, and this lack of
knowledge can lead to unsafe abortions. The government should intensify its
efforts to raise awareness about the importance of safe and legal abortion
- Address social stigma:
Abortion is still stigmatized in India, which can deter women from seeking
medical assistance. It is necessary to address the social stigma associated
with abortion and promote a positive attitude towards women's reproductive
- Right to life and personal liberty: No person shall be deprived of his
life and personal liberty except according to procedure established by law.
rights last visited on 18th November,2022 at 6:13 p.m.
- Whoever causes a women carrying child a miscarriage shall be punished
with imprisonment extending to 3 years or fine or both.
- The Medical Termination of Pregnancy Rules,2003
- https://gh.bmj.com/content/4/3/e001491 last visited on October 30th at
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