Legal Framework governing reproductive rights and abortion law
08 Feb 2025
Introduction
The fundamental basis of India’s abortion legislation is a cis-hetero-patriarchal society that controls expecting mothers’ bodies through a severe criminal justice system. The criminal framework includes the POCSO Act and the PCPNDT Act, which allow for nearly unrestrained law enforcement harassment of abortion providers and seekers and necessitate significant state surveillance.[i] Due to the stigma surrounding abortions that is reinforced by criminalization, pregnant women have few options when it comes to ending their pregnancy. These options include carrying an undesired pregnancy to term and forgoing prenatal and maternal healthcare, or obtaining an unsafe abortion and running the risk of legal repercussions. Essential components of women’s independence and health are reproductive rights, which include the right to a safe and legal abortion. India’s legal system for abortion and reproductive rights has changed significantly over time, striking a balance between individual liberties, public health concerns, and social factors. This blog examines legal interpretation, important statutes, and current issues with reproductive rights and abortion regulations in India.
Legal Framework
In India, the Medical Termination of Pregnancy (MTP) Act is a government law that permits licensed medical practitioners to perform abortions in specific predefined situations. This legislation was a progressive move that recognized women’s reproductive rights and attempted to lower maternal mortality from unsafe abortions. Medical terminations of pregnancy were governed by Sections 312 to 318 of the Indian Penal Code (IPC) prior to the MTP Act of 1971. The majority of these provisions attempted to criminalize abortions, with the exception of cases where the procedure was performed in good faith to save the woman’s life. It is extremely difficult for women to obtain safe abortions because the IPC laws do not distinguish between unwanted and intended pregnancies.
When women, including rape survivors, mentally ill, and those experiencing unintended pregnancies as a result of contraceptive failures, began going to court to seek permission for ending their pregnancies beyond the recommended gestational period of 20 weeks, the 1971 law was unable to keep up with the demands of the changing times and scientific advances in medicine.[ii] In order to lower maternal mortality and morbidity brought on by unsafe abortions, the 2021 Act modification seeks to guarantee women’s access to safe and legal abortion services. The modifications provide abortions up to 24 weeks for specific categories of women, up to 24 weeks for women whose marital status changed during pregnancy, up to 24 weeks for survivors of rape or incest, and up to 24 weeks for other vulnerable women. The amendments also permit abortions up to 20 weeks after the opinion of one licensed medical professional.
The modification also made pregnancies outside of marital institutions legally binding by substituting “by any married woman or her husband” with “any woman or her partner.”
Existing legislation and policy: what is still lacking?
The MTP Act’s significant medical slant is one of its main criticisms. Practitioners of alternative medical systems and mid-level healthcare providers are not covered by the “physicians only” provision. Access to second trimester abortions is further limited by the need for a second medical opinion, particularly in remote locations.[iii] All public hospitals are required by the MTP Act to provide abortion services. Despite this, public health institutions are exempt from the same regulatory processes as the private sector because they are not required to obtain the necessary approval. It is incorrect to believe that simply because a health institution is part of the public sector, it has effective regulatory processes that don’t need to be supported by laws and regulations and is accountable to the general public. Any restrictions of this kind are frequently out-of-date or opaque.[iv] The absence of a clear policy on excellent clinical practice and research constitutes a significant gap in Indian abortion policy. Published in 2001[v]national technical guidelines do not guarantee acceptable clinical practice even at abortion clinics that have been recognized by the WHO, and they do not comply with their international guidance[vi]
Protecting women’s reproductive rights: the role of the judiciary
The judiciary will inevitably have to handle the problem of reproductive rights as there isn’t a sufficient legislative framework to safeguard women’s reproductive rights. The Indian judiciary has played a pivotal role in safeguarding and augmenting the reproductive rights of women, guaranteeing the preservation of their constitutional entitlements to bodily autonomy, personal liberty, and privacy. In interpreting the Medical Termination of Pregnancy (MTP) Act and related regulations, the courts have adopted a progressive approach, guaranteeing that the rules are in line with the changing requirements of society and improvements in medicine.
In the landmark decision of Suchita Srivastava v. Chandigarh Administration.[vii], the Supreme Court of India upheld the constitutional right of women to reproductive autonomy as a part of their right to personal liberty under Article 21. The court underlined that having the freedom to choose among contraception, abortion, and other reproductive health treatments is part of having reproductive rights.
In the case of Meera Santosh Pal v. Union of India[viii], the Supreme Court upheld an abortion due to significant fetal abnormalities that took place beyond the 20-week limit set down in the MTP Act. This ruling emphasized the need for the law to be flexible in order to accommodate extraordinary situations and emphasized how crucial it is to take the woman’s health and well-being into account.
In X v. Union of India[ix], the Supreme Court extended the rights of reproductive individuals by permitting an unmarried woman to end a pregnancy that resulted from a consenting relationship. This decision was significant because it recognized that a woman’s autonomy to make choices regarding her reproductive health is not contingent on her marital status and that rights pertaining to procreation are not gender-specific.
Challenges and Contemporary issues:
- Access to secure abortion services: The inability to obtain safe abortion services is one of the major problems. Geographical disparities, particularly those between urban and rural areas, make it more difficult for women from rural areas to access licensed medical facilities and qualified health care providers. In addition, financial barriers often prevent many women from affording the cost of safe disposal during pregnancy, forcing them into unsafe and illegal relationships.
- Legal Awareness: Women’s ignorance of the law is a major obstacle to obtaining reproductive rights. Many women are not aware of the MTP Act’s contents or their legal right to an abortion. Their ignorance keeps them from seeking out safe and authorized abortions, which frequently forces them to turn to risky methods. In-depth education and awareness efforts are essential to providing women with the knowledge they need to make decisions about their reproductive health.
- Stigma and Socio-Cultural Barriers: Many regions of India still stigmatize abortion due to deeply ingrained patriarchal traditions and sociocultural views. Because of this stigma, women are deterred from accessing safe and authorized abortion procedures for fear of being judged, shunned, or even attacked. The difficulties are made worse by the lack of awareness and support from society, which makes it harder for women to make independent decisions regarding their reproductive health.
Conclusion
Since the Medical Termination of Pregnancy (MTP) Act was passed in 1971, India’s legislative framework about abortion rights has advanced significantly. The breadth of reproductive rights has expanded due to progressive legislation and judicial interventions, guaranteeing women’s autonomy, health, and dignity.[x] But there are still significant obstacles to overcome, especially about stigma in society, awareness, and accessibility. In order to genuinely protect women’s reproductive rights, these obstacles must be removed by extensive legislative changes, better healthcare systems, and intensive educational programs. This would allow India to move closer to a culture where all women are free to make decisions about their reproductive health without fear of repercussions or undue influence.
[i] Jain, D. (2024) “Beyond bars, coercion and death: Rethinking abortion rights and justice in India”, Oñati Socio-Legal Series, 14(1), pp. 99–118
[ii] Explained: Abortion laws in India, Hindustan Times https://www.hindustantimes.com/india-news/explained-abortion-laws-in-india-101697097757306.html
[iii] Full article: Abortion Law, Policy and Services in India: A Critical Review,https://www.tandfonline.com/doi/full/10.1016/S0968-8080%2804%2924017-4?scroll=top&needAccess=true
[iv] S Barge. Situation analysis of medical termination of pregnancy in Gujarat, Maharashtra, Tamil Nadu and Uttar Pradesh. Paper presented at MTP workshop, Ford Foundation, 20 May 1997. S Bandewar, R Ramani, A Asharaf. Health Panorama No.2. 2001; CEHAT: Mumbai,
[v] Government of India. Guidelines for medical officers for medical termination of pregnancy up to eight weeks using manual vacuum aspiration technique. 2001; Maternal Health Division, Department of Family Welfare, Ministry of Health and Family Welfare: New Delhi.
[vi] World Health Organization. Safe Abortion: Technical and Policy Guidance for Health Systems. 2003; WHO: Geneva.
[vii] Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1
[viii] Meera Santosh Pal v. Union of India (2018) 13 SCC 339
[ix] X v. Union of India W.P (CRL) 1505/ 2021
[x] Adsa Fatima and Sarojini Nadimpally, “Abortion Law in India: A step backward after going forward”, SUPREME COURT OBSERVER (November 17th, 2023), https://www.scobserver.in/journal/abortion-law-in-indiaa-step-backward-after-going-forward/
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