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Legalizing Abortion In India: Significance And Challenges

India is a land of culture, religion, beliefs and rituals. Every natural phenomenon taking place is embedded with certain ritual and custom, associated with some belief. So is the case with the birth of a child. A woman becoming pregnant at a reasonable time after marriage becomes an auspicious moment for her, which goes on to become a glorifying one after she gives birth to a child. The arrival of a child becomes a blessing for the entire family.

However, the predominant ambience of the patriarchal society seldom keeps this as an auspicious one for the woman. This is because the birth of a child is not only a new lease of happiness, a sense of pride gets associated with it. This refers to the unreasonable discrimination between a boy and a girl, that imposes a demand on the pregnant woman to deliver a boy child.

This boy child is going to become the successor of the property and assets of his ancestors. In cases when the family members get to know about the gender of the child much before it is born, they decide to kill the foetus and end it even before it can begin its life-giving a preliminary concept of abortion.

With the advent of society, there have been many other reasons that have led a woman to destroy a life in the way of abortion. The deformities in the foetus, often leads the woman to abortion to prevent the child from any sort of suffering if born. A major factor can be the increasing levels of rape. The act itself, ends the life of the woman in an implied manner. The situation gets worsened when she gets pregnant out of forceful consummation.

There are other reasons as well. Studies have been conducted across the world about determining the reasons that lead a woman to undergo abortion. It has been found that some of them have multiple reasons to give. Some of them include: partner related reasons, influences from family and friends, and even when they are not emotionally prepared.

However, the list of these reasons is not exhaustive. There are a lot of reasons owing to circumstances which lead to abortion. The unfortunate thing is that there are no appropriate forums where a woman can share her feelings about her decision to abort or her mental condition post action. As stated earlier, a child in the family is considered to be a gift of God. Therefore, an initiative to destroy the life in the mother's womb is a sin and a social taboo altogether.

This has led the activity of abortion a hidden affair, leading to unsafe abortions. Thanks to modernization in the post-colonial era, the right of a woman to decide the fate of the foetus in her womb is recognized as a right. This has reduced the number of maternity deaths due to unsafe abortions. The recognition of the right of women to take their own decision of keeping a life has created a step towards gender equality in the long run.

However, there is a long way to go. The prevailing patriarchal society has not been able to accept the right being given to women. The legalization of abortion in India has not been able to solve the problem of gender biasness yet. This calls for a look into the legal aspect of abortion (laws related to abortion), the present scenario of it and ways to improve it so that it will be able to cater to the needs of those helpless women, who decide to end a life under societal pressure and social stigmas.

Legalization Of Abortion In India: Its Journey Down The Lane:

The Indian Penal Code of 1860 criminalized abortion under Section 312, as it led it leads to cause miscarriage intentionally. However, exceptions were provided to it as in the case where aborting the baby would lead to the mother's life getting saved. According to this section, any woman or provider voluntarily causing a pregnant woman to miscarry would be penalized with three years in prison or a fine. The woman availing such service would also be sentenced to seven years of imprisonment and/or a fine.

It was only after legalization of abortion in fifteen countries of the world that that India took cognizance of initiating a legal framework for induced abortion. In 1964 a committee headed by Shri Shantilal Shah came up to draft the provisions of the legal aspects of abortion in India. It made a comprehensive review of all the different aspects-legal, sociocultural, etc. It ultimately led the government to pass the Medical Termination of Pregnancy Act, 1971.

The Medical Termination of Pregnancy Act, 1971 was passed by both the houses of the Parliament and given assent by the President on 10 August, 1971 This law serves as a guarantee to the right of women to terminate their unintended pregnancies under the guidance of a registered medical practitioner maintained or established by a government or a place recognized in the Act by the Government.

The Act consists of eight sections in total. Some of the important sections are given below:
Section 3: Section 3 gives the provisions for the termination of pregnancy by a registered medical practitioner if he is of the opinion that:

  • Further continuance of the pregnancy would cause a risk to the life of the mother, and
  • There are chances of the child being acute handicapped or suffering from mental abnormalities if born.

However, this opinion needs to be in good faith. In case of length of pregnancy being 12 weeks, the opinion of one registered practitioner is required. In case of length of pregnancy exceeding 20 weeks, opinion of two registered medical practitioners is necessary. Therefore, termination of pregnancy exceeding a period of more than 20 weeks requires the direction of a High Court. The Court, in turn would give the direction based on the recommendations from the medical board.

It is to be noted that the terms "grave injury to physical and mental health" are subject to interpretation.

Section 4:
Section 4 provides for the place where the pregnancy can be terminated. It states that the pregnancy can be terminated in a hospital established or maintained by the Government, or any other place approved by the Government or a District level Committee by the Government for the purposes of the Act. Section 5: Section 5 denotes the cases where Section 3 and 4 will not apply. It refers to cases where a registered medical practitioner gives his opinion in good faith that the termination is necessary to save the life of a woman.

The law at present:
The law is currently the only legislation governing induced abortion in India. The objective was to curb maternity deaths to a great extent. However, ever since it was passed, there has been unrest all over as to giving the right of opinion to the registered medical practitioner. Ever since its enactment, thirty petitions have been submitted to the Supreme Courts and High Courts for seeking termination of pregnancy directions.

It was on September 2019 that the Ministry of health and family Welfare submitted an affidavit before the Supreme Court of India, denying the absoluteness of a woman's right to abort. The affidavit was filed in response to a petition in 2009 by Dr. Nikhil Datar. It sought to liberalize the respective provisions in respect to abortion in India.

Recent studies have shown that even after more than four decades of passing the MTP Act, maternity deaths in India due to unsafe abortions amount to 9 to 20%. The Lancet Global Health, in its study conducted recently, states that almost 22% of 15 million abortions take place in private hospitals or public healthcare facility, rest are still outside healthcare facilities.

Anomalies In The MTP Act, 1971

Although the MTP Act provides a wide scope, it can be inferred that the healthcare providers are the ones to take the final decision when it comes to seeking abortion. This can even make the pregnant woman lie in front of the doctor as she needs to establish the point that the pregnancy was unwillingly caused.

A false statement established only to fit her issue within the legal framework does not solve the problem of securing the woman's right. Besides, there are cases where abnormality gets detected after 20 weeks of pregnancy. This calls for a need to make the time period a flexible one, owing to circumstances.

The condition given for abortion has been restricted to the health hazards the mother may face. There are cases where the mother decided to abort the foetus because of the acute foetal abnormalities which will lead to challenging consequences if given birth. There was a case in 2008 when Nikita Mehta filed a petition before the Bombay High Court seeking direction to abort her 22-week foetus who was diagnosed with heart defect on its 20 th week.

It was turned down which led to miscarriage of the foetus on the 27 th week of her pregnancy. The MTP Act has also led to infringement of right to privacy in an indirect manner. The Supreme Court recognizes the woman's decision on reproductive choices and her decision on abortion in the domain of the right to privacy. Article 21, which protects a person's right to dignity, includes this right as well.

There have been cases relating a woman's right to abortion. The K. S. Puttuswamy's judgement held the woman's right to make her reproductive choices under Article 21 1 . This was reiterated in Suchitra Srivastava v. Chandigarh Administration 2 . However, there is the Protection of Children from Sexual Offences Act (POCSO) Act which is in contrary to the process of confidentiality. This act states that having sexual relations with an adolescent girl amounts to crime even if it is consensual between persons below the age of eighteen.

Going through the above shortcomings, it can be inferred that the right to privacy of a woman gets infringed to a great extent in this legislation. This leads to many adolescent girls undergo the process of contraception. This may call for dire consequences in the future.

Juvenile Rape Victims:

Juvenile rape victims are further victimized under Section 3 of the MTP Act, 1971. The provisions are such that the underaged rape victims are put under Section 3, i.e., they need to approach the courts for seeking direction once they have exceeded 20 weeks of pregnancy. Besides, there is hardly any protection in case of any mental stress or agony caused out of rape.

In an instance where an underaged girl was raped several times by her maternal uncle, she had to undergo the same process as provided under Section 5 of the said Act.

In light of the above stated problems the MTP Act has been amended over the years.

One has been done in the year 2014, another in the year 2020.

Draft Medical Termination of Pregnancy Bill, 2014.

It amends Section 3 of the Act, to remove the length of pregnancy period. It increases the

legal limits of abortion from 20 weeks to 24 weeks.

It also allows a woman to take an independent decision with a healthcare provider.

Medical termination of Pregnancy Bill, 2020
It was introduced on March 2, 2020 by the Ministry of Health and family Welfare. It goes for a revision of the old and backdated one and tends to bring the new one with effective measures and amended provisions.

The original Act contended on the view that in cases of unwanted pregnancy as a result of contraceptive failure by a married woman or husband, the mental health gets deteriorated. The new Amendment replaces the word "married woman or her husband" with "woman or her partner" thereby giving a liberalist approach.

It also speaks of a medical Board consisting of a (a) gynaecologist, (b) paediatrician, (c) radiologist, and (d) any other number of members as specified by the respective state government. They will provide with recommendations in special cases of abortion. Lastly, it also takes into account the infringement of privacy, making it sure that no registered practitioner shall know the name of the woman concerned unless specified by the law in force.

Other Legal Frameworks Related To Abortion:

Several rules and regulations have been associated with the MTP Act over the years. For example, in August 2003, MTP Regulations were brought forth, which is to be followed in all Union Territories. According to these regulations, all the registered medical practitioners need to maintain the abortion records and submit them to the Chief medical Officer (CMO).

Union Government also came up with the Comprehensive Abortion Care (CAC) Training and Service Delivery Guidelines, 2010. It was amended in the year 2014. The aim of this is to train the medical practitioner and staff to curtail the deaths of mothers from unprescribed practices of abortions.

The Pre-Conception and Pre-natal Diagnostic Technique (Prohibition of Sex Selection (PCPNDT) Act, 1994 has also been used in supplementation to the abortion laws and regulations applicable in India. It looks into and avoiding girl deaths through induced miscarriage practices of illegal nature.

Abortion Laws And Article 21: Connecting The Dots

There is a huge dilemma from the part of the courts to decide on matters which require them to bring justice to both mother and the child. They have to apply a humanitarian approach, which demands a striking balance between the lives of the mother and the child. Article 21 of the Constitution of India recognizes the right to life and personal liberty irrespective of gender. The Right to abortion is also a fundamental right in the sense that it falls under a woman's right to privacy.

The point to be noted is that to force a woman to continue her pregnancy violates the rights of the woman to live with dignity, as specified in Article 21 of the Constitution. Thus, deciding matters on abortion require a brain taxing approach because it requires the right of the mother and the child to be protected at the same time.

Notable Cases Related To Abortion Laws In India:

  1. Samar Ghosh v. Jaya Ghosh 3 , where the Supreme Court held that if the wife undergoes abortion without any medical knowledge or her husband's consent, such an act would lead to cruelty.
  2. Dr. Mangla Dogra & Ors. v. Anil Kumar Malhotra:
    The High Court of Punjab and Haryana held that the MTP Act requires the consent of only one person-the pregnant woman. She cannot be forced by her husband to continue pregnancy.
  3. Mr. X v. Union of India 4:
    The Court held that a woman's right to reproductive choices falls within the ambit of personal liberty under Article 21 of the Constitution of India.
  4. Sheetal Shankar Salvi v. Union of India 5:
    It was regarding the termination of a 27-week- old foetus, who was suffering from Arnold Chiari Type II syndrome. The medical Board constituted recommended that there are chances for the baby to be born alive. The Apex Court denied the permission in this ground, while it admitted that it was "very sad for a mother to bring up a mentally retarded child."

Conclusion: Way Towards A Better Future
It is not easy for a woman to take the decision of abortion. The good news of arrival of a new member in the family is not only a joyous occasion for the entire family, it causes a blend of emotions in the would-be mother as well. However, these emotions are seldom taken under consideration, with the woman being left all alone. It is, in a general sense, the mother who is the best one to take decisions for her child and no one knows better than her about the child's future.

Therefore, getting known of the fact that her child will not be able to live a normal life after born, it becomes difficult for the mother to digest it. After all, the physical pain suffered for nine months, it is not possible for the mother to bear the suffering of the person who will be there in this world with any sort of disability, thereby getting deprived of those which a "healthy" child gets. This causes a feeling of anguish and guilt on the part of the mother at times, when she starts to feel as if she is responsible for all such sufferings.

She gets worried as to who will look after her child after her, because a "differentially abled" person is generally given a lip service of sympathy throughout the world. This is from the part of the mother. In cases where there is a family pressure to give birth to a child, the family members seldom think of the mother's condition and sway themselves in the joy of inviting their new family member. This often leads to the death of the mother, if she had a complication from the time of her pregnancy.

Mention should also be made of unintended pregnancies, which fall under an urgent need of termination to avoid social isolation. These circumstances often lead to termination of pregnancy in a hidden manner, leading to unsafe abortions. It is needless to say that unsafe abortions are becoming a prime cause of maternity deaths nationwide.

It was with the Roe v. Wade case that the idea of legalizing induced abortions was established 6 . Our country, battling with the social stigmas, took an initiative to legalize induced abortion, with the MTP Act still the primary one to be looked at when it comes to giving orders for carrying out the process of abortion. It has also been subject to several amendments and other supplementary regulations throughout the years.

Thus, it is evident that the Government has taken an initiative to save the woman population by reducing maternity deaths through unsafe abortions. Unfortunately, the current situation mentioned above imply that there is still a long way to go. Women must be given appropriate forum to share their feelings and their emotions that worked while they took the decision to abort their foetus.

Their views should be taken care of and given as much respect as possible, so that they get an opportunity to live with dignity and provide scope for the next generation as well to enjoy their lives in the true sense of the word. It is true that a mother's feelings and emotions associated with her child can not be interpreted with a legal framework, howsoever effective it becomes.

Therefore, cases relating to life and death of the present as well as the future should be dealt with a humanitarian approach as the first priority. Above all, it should be the mindset of the people that needs to be liberal to an extent of giving the right to live with dignity to a woman. A lion's share of the responsibility of perpetuating the human race

Roe v. Wade; 410 U.S. 113 (1973)
Falls on the woman. Therefore, it is the society who should be responsible enough to pay due respect to her, so that she lives and paves way for the next generation to live their lives in the true sense of the word.


  1. Anubhav Pandey; "Abortion Law � Policy and Legal framework in India"; published on accessed on 20 March 2021 Diganth Nath Sehgal; "Abortion law in India- Right or restriction"; published on accessed on 20 March 2021
  2. Diganth Nath Sehgal; "Abortion law in India- Right or restriction"; published on accessed on 20 March 2021 Diva Rai; "Abortion in India: still a long way to go", published on accessed on 20 March 2021
  3. Diva Rai; "Abortion in India: still a long way to go", published on accessed on 20 March 2021
  4. Gazala Parveen; "Let abortion laws be woman-centric"; Abortion Law  Policy and Legal framework in India"; published on accessed on 20 March 2021
  5. Justice K. S. Puttuswamy & Anr. v. Union of India; (2017) 10 SCC 1
  6. Ms. X v. Union of India; W.P (C)No. 593 of 2016 (Supreme Court,25/07/2016
  7. Roe v. Wade; 410 U.S. 113 (1973) "Samar Ghosh v. Jaya Ghosh"; (2007) 4 SCC 511
  8. "Samar Ghosh v. Jaya Ghosh; (2007) 4 SCC 511
  9. Savita Sachin Patil vs. Union of India; W.P. (Civil) No. 121 of 2017 (Supreme Court)
  10. Suchitra Srivastava & Anr. v. Chandigarh Administration; (2014) 9 SCR 989

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