Abortion is now a practice that is widely accepted in many nations throughout the world. However, for a very long period abortion was regarded as an unlawful practice in India. Several women lost their lives while attempting to end their pregnancies either through unlawful means or inhuman means.
The position of abortion in India is now legally well founded, however, this was not the situation before 1971, as the providers of abortion services and women would face up to three to seven years of imprisonment, respectively, for providing and seeking an abortion. The only exception to this rule was in the case that there was a threat to the life of the pregnant woman.
Before 1971 the Indian Penal Code of 1860 included the following provisions related to abortion:-
1. Section 312 and 313: causing miscarriage
2. Section 314 : causing death of a woman during a miscarriage
3. Section 315 and 316 : injury caused to an unborn child
4. Section 317: abandonment and exposure of an infant
5. Section 318 : concealment of childbirth
Section 312 which is most relevant to the present discussion reads as:
“Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
In the year 1964, Shantilal Shah Committee was established by the Central Family Planning Board of India to ease the rigors of the law on abortion. Hence to lower the incidences of botched abortions and maternal deaths that were linked to illegal and unsafe abortions, the report advocated liberalizing the rules governing abortion. Its purpose was to investigate and examine the moral, social, legal, and medical justification for abortion.
On 4th December 1966, the Shantilal committee sent a report with through observations of the then prevailing circumstances and after an exhaustive deliberation, India’s first law on abortion known as Medical Termination of Pregnancy would be legal, if qualified medical practitioners allowed it. The MTP Act 1971 provided for conditions in which a women (only married) can choose to terminate her pregnancy (not beyond 20 weeks), those conditions include that if the:
Nonetheless, this Act was heavily criticized due to noteworthy shortcomings like:
a. The pregnancy arises from crimes such as sexual assault or rape.
b. It causes a risk or danger to the women’s physical or mental health.
c. The child has a risk of being born with a physical or mental malformation.
d. Girls under 18 who are insane, or lunatic cannot get their pregnancy terminated without the written consent of a parent or guardian.
e. Abortion up to 12 weeks of pregnancy requires the opinion of one registered medical practitioner.
f. Abortion between 12 to 20 weeks requires the opinion of two registered medical practitioners.
Nonetheless, this Act was heavily criticized due to noteworthy shortcomings like:
a) Few tests are performed in the 20th week of pregnancy to ascertain abnormalities that are only confirmed after the 20th week. However, the act did not allow the termination of pregnancy beyond 20 weeks.
b) Even married women had to prove contraceptives’ failure to terminate their pregnancy, violating the fundamental right to privacy.
Taking note of these few of the many shortcomings, the Medical Termination of Pregnancy (Amendment) Act, 2002 was introduced with a view to provide for the facility of termination of pregnancy even in private hospitals and it suggested that the term ‘lunatic’ be substituted with ‘mentally ill person’.
However, as technology advanced so did the cry to amend the erstwhile MTP Act also grew bigger as there were issues related to women’s privacy and her reproductive rights and choices were at stake which needed urgent attention and hence the Medical Termination of Pregnancy (Amendment) Act, 2021 was set in motion and it ushered various novel changes in the Indian history.
The amendment increased the gestation period from 20 to 24 weeks for termination of pregnancy for special categories of women, including rape and incest victims, physically disabled women, minors, widows, and other vulnerable women. It emphasized on protecting the privacy and confidentiality of a woman who opts for termination of her pregnancy and further allowed all women, irrespective of her marital status to access safe abortion of their pregnancies.
On October 12, 2021, the Union Government notified the Medical Termination of Pregnancy (Amendment) Rules 2021, in which the categories of women eligible for abortion of pregnancy up to 24 weeks were specified. They are:
(a) survivors of sexual assault or rape or incest;
(b) minors;
(c) change of marital status during the ongoing pregnancy (widowhood and divorce);
(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act 2016;
(e) mentally ill women including mental retardation;
(f) the fetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and
(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.
Indian courts have often placed the issue of abortion rights within the ambit of constitutional doors, the case of Suchita Srivastava v Chandigarh Administration (2009) is an example of the situation where the court recognized the right of an intellectually disabled woman to continue her pregnancy and in turn made reproductive choices a part of the right to personal liberty under Article 21 of the Constitution of India, 1950.
Another significant Supreme Court decision on abortion in India was the 2017 case of Ms. X v. State of Maharashtra, where the court further clarified that a woman has the right to terminate her pregnancy if continuing it would pose a grave threat to her physical or mental health.
In Chandrakant Jayantilal Suthar & Another v. State of Gujarat (2015 SCC Online SC 668), A minor who had been sexually assaulted by her doctor became pregnant. The Gujarat High Court denied her family’s request for a termination. The rape victim was “psychologically devastated,” according to one of the medical team’s doctors, and “physically too weak to deliver a child.” The medical team concluded that the pregnancy presented a “serious threat to her life” for this reason. The medical experts also mentioned that the girl’s health wouldn’t be harmed by the surgery and that terminating a pregnancy at 24 weeks is still safe. Upon reviewing the medical opinion, the Supreme Court permitted termination with the girl’s agreement. But the Court acknowledged that this was an especially tough decision because,
“Whatever be the circumstances in which the child was conceived, whatever the trauma of the young mother, the fact remains that the child is also not to blame for being conceived.”
However, it was also contended that,
“A rape victim shall not be further traumatized by putting through a needless process of approaching courts for taking permission.”
The landmark case of X v Health and Family Welfare Department (2022) is another laudable piece of judgment as it has come at a time when sexual and reproductive rights are being considered a rather contentious issue across the globe, particularly after the United States overturned the landmark Roe v Wade Judgment, which granted constitutional validity to the right to abortion. It has set both India and the issue of women’s rights in the country on the path of progressiveness.
The ruling stated that a woman’s right to her bodily autonomy and her freedom to select her own course in life are fundamental factors in her decision to either carry a pregnancy to term or end it. It also acknowledged that an unintended pregnancy could have detrimental impacts on a woman’s life, interfering with her profession, education, and mental health, among other things.
However, it appears that anti-reproductive rights views have eclipsed the good progress of 2021 and 2022 in 2023. This pro-rights programme suffered a significant setback a year following the ruling in X v. Principal Secretary1, which demonstrated how much more work needs to be done before India can become a fully liberal and right-based jurisdiction for medical abortion.
In the case of X v Union of India2, a married 27-year-old mother of two petitioned the Supreme Court to obtain an abortion in accordance with the Medical Termination of Pregnancy Act, 1971. Because she was breastfeeding, the petitioner didn’t know she was pregnant until about 24 weeks because of a disorder called lactational amenorrhoea. The petitioner immediately went to the highest court to get access to necessary treatment after initially being denied at the medical facility. The arguments for fetal viability and worries for the rights of the unborn child were heard and given precedence over the petitioner’s right to reproductive autonomy in a somewhat dramatic turn of events at the Supreme Court.
Even though her mental health issues satisfied the legal standards, her reproductive rights were evaluated in comparison to a checklist to determine if she qualified for a termination at 24 weeks and were deemed insufficient. The Court observed that she was not entitled to the protections provided by Section 3(2B), which included pregnancy during humanitarian situations, disabled people, mentally ill people, widowed or divorced people, and survivors of sexual assault. Additionally, she was not eligible for Section 5 protections, which permit pregnancy termination in situations where the woman’s life is in danger.
First off, it was unclear how the Court interpreted mental illness as a ground for termination. The Court rejected X’s repeated requests for termination on the grounds of her mental health, postpartum depression and psychosis, suicidal thoughts, and propensity to hurt herself and her children.4 Second, the decision raises the question of what really qualifies as a threat to a woman’s life, given that the petitioner’s concerns about suicide were considered and rejected.
According to the ruling, a woman must demonstrate both her absolute necessity for an abortion and the risks associated with her situation to fully enjoy her right to reproductive autonomy. By doing this, the Court essentially reversed the ruling it made in X v. Principal Secretary,5 wherein it acknowledged that a woman was the “ultimate decision-maker” when it came to her reproductive choices.
The Supreme Court of India permitted the termination of a 22-week pregnancy in the case of Mrs. X v. Union of India.6 This was carried out upon the opinion of a seven-member Medical Board that the woman’s physical and mental well-being could be seriously jeopardized if the pregnancy were to continue. The Court ruled that a woman’s right to terminate her pregnancy is protected by her right to bodily integrity and that her right to make reproductive choices is a component of her “personal liberty” under Article 21 of the Constitution.7 The Supreme Court rendered similar rulings in other cases involving pregnancies that lasted longer than 20 weeks and fetuses with a variety of abnormalities and medical disorders that put both the mother and the fetus at significant danger. (Tapasya Umesha Pisal vs. Union of India [24 weeks]; Meera Santosh Pal vs. Union of India [23 weeks]; Mamta Verma vs. Union of India [25 weeks]). The Supreme Court relied on the opinion of medical board in all these cases for its decision.
In Murugan Nayakkar vs. Union of India & Ors.,11 the Apex Court allowed the termination of 32-week old pregnancy of a 13-year-old rape victim holding, “Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and above all the report of the Medical Board constituted by this Court, we think it appropriate that termination of pregnancy should be allowed.”
This case highlighted that any rule or regulation (Rule 3B of MTP, 1971) which discriminates between a married and unmarried woman is unconstitutional and is nothing but a manifestation of patriarchal mindsets and values.
But in Savita Sachin Patil v. Union of India,12 the court decided against ending a pregnancy that was 27 weeks along. The Medical Board concluded that although the foetus had serious physical defects, the mother was not at physical risk. Based on the Medical Board Report, the Court subsequently refused to allow termination on the grounds.
In Alakh Alok Srivastava v. Union of India,13 the court denied a termination in the case of the petitioner, a 10-year-old victim of rape who was also 32 weeks pregnant. The Medical Board believed that the petitioner would be less at risk from the pregnancy’s continuance than from its termination at that point. Throughout the case, the Centre was instructed by the Court to oversee the establishment of permanent medical boards in states to promptly review requests for terminations made after 20 weeks of pregnancy.
It is evident from this that the Medical Board’s recommendations influence the Court’s rulings. The woman’s reproductive rights are not taken into consideration by the Court; instead, it is the Medical Board’s conclusions about the continuation and termination of pregnancy that matter. Therefore, we must consider whether the courts ought to rely only on Medical Board Recommendations.15 While the Medical Boards have the authority to assess a woman’s physical health, may they also assess her mental health and any issues that might necessitate ending her pregnancy? If the woman’s reproductive autonomy is to be safeguarded, shouldn’t she ultimately decide whether to end the pregnancy?
The Supreme Court of India intervened in a recent decision to handle a dire case involving a 14-year-old rape survivor who wanted to end her pregnancy at around 30 weeks. The Supreme Court underlined the significance of the child rape survivor’s health and well-being by rejecting the Bombay High Court’s decision. It was thought to be critical to allow abortion at this advanced time.
The MTP Act needs to be reformed to provide parameters for abortion beyond 20 weeks. There is a need for proper guidelines that the Board must take into consideration while planning on termination. As the Board has different opinions about when termination is advised, it is currently crucial that guidelines be followed when Medical Boards are established.
Our discussion of human rights, reproductive rights, and fairness in the legal system centers on the choice between life and death, with little regard for the consequences of abortion, particularly when a late termination could result in a child who is born alive. Although we rarely have this debate, it is one that needs to happen immediately.
Not only is the lack of standards for these situations a legal oversight, but it is also a conspicuous lack that raises numerous unanswered issues, such as: What resources are available to care for a kid born in such circumstances? Do any government initiatives exist to help these kids? Above all, and most importantly, who will take care of and raise them? Is it morally right for us to uphold their rights under the Equal Protection Clause of the Constitution?
At the end one should not lose sight of the fact that despite these changes, still a lot remains to be addressed as it is apparent that even though abortion is an inalienable right of a woman, still she is at a mercy of doctors to exercise this indispensable autonomy. Also given the fabric of our society, it is often a difficult choice for a woman to think and opt for termination of her pregnancy so not only legal but also moral values also needs to be introduced as then only in true sense the intrinsic right of bodily autonomy can be understood and bestowed to all women in its legal spirits.
In the light of the above discussions, it is suggested that the role of Supreme court should be reduced to minimum as the minor’s viewpoint in agreeing to terminate or continue with the pregnancy should be given paramount importance as the social stigma and ostracization leads to adverse steps. Further, it is recommended that a Central level committee be constituted comprising of a panel of members from the respective State, Centre, NGO, National Commission Women , retired Chief Justice of India and senior doctors of medical board of India, whose decision and orders should be given final weightage and preference as they are well-versed with each case on merits and would be taking into consideration each aspect and consequence of the decision they hold. It is to be kept in mind that forcing a pregnant mother to not to terminate her pregnancy amounts to violation of her right to bodily autonomy, right to privacy, and right to reproductive choices, therefore intervention of courts to decide the case in a staggered manner is unwarranted especially in a scenario where robust mechanism can be established to decide the welfare of the victim in consonance with providing her a life with dignity and respect which is of utmost importance to any democratic State.
