by Mili Gupta  6 July 2021

The Indian Penal Code (1860) and the provisions of the Medical Termination of Pregnancy (MTP) Act, (1971) are the primary sources of abortion legislation in India. The IPC, 1860 laws make abortion illegal and both the individual who undertakes the abortion and the medical practitioner who facilitates the abortion can be punished. Therefore, the MTP Act, 1971 was created as an exception to the Code, exempting health professionals from criminal culpability only if they end a pregnancy as per Section 3 & 5 of the Act.  The criminalization of abortion runs counter to Indian Supreme Court precedent, which recognizes the ‘right to have an abortion’ as a basic right, alongside the rights to equity and non-differentiation, physical integrity, wellness, respect, and reproductive freedom. For more than a century, Indian reproductive rights advocates have advocated for abortion legislation reform, claiming that the MTP Act is indeed a ‘doctor-centric Regulation’ that gives medical practitioners autonomy in authorizing or rejecting abortions without respect for the wishes of pregnant women.

India’s new abortion legislation was enacted 50 years after the country’s primary abortion legislation. The MTP Act, (1971) was adopted. The Lower House of Parliament passed the MTP Bill, (2020) in March 2020, shortly well before COVID-19 pandemic-driven shutdown was revealed. The MPT (Amendment) Act, (2021), was approved by the upper house on 16-March 2021 and received the President’s approval. While abortion remains illegal under the Code (1860), the revised law permits any woman, irrespective of matrimonial status, to terminate their pregnancy. It raises the gestation term for abortion for specified ‘groups of females’ from 20 to 24 weeks as well as eliminates the upper gestation restriction for abortions owing to “foetal abnormalities”.

Deficiency of rights-based framework by rendering it obligatory for women to explain abortions, availability difficulties, and reproductive freedom are some of the shortcomings of the MTP (Amendment) Bill. Many of the issues with the MTP Act, (1971) are also unaddressed by the bill. Firstly, it prohibits abortion on demand at any time throughout the pregnancy. It will only be permitted in specific circumstances, such as rapes, foetal disorders, and a threat to the woman’s mental well-being or physical health, and not because she has chosen not to have the baby. Secondly, it’s unclear how the MTP Bill would ban abortion depending on a woman’s sex. Thirdly, while women above the age of 18 have privacy rights, someone under the age of eighteen does not have that rights, and their parents must be notified. This may encourage young people to choose risky abortion procedures.  Fourth, it raises the authorized abortion gestational limitation from 20 to 24 weeks among specified females, like rape victims, adultery sufferers, and juveniles. Because of the foregoing rules, third-party permission for abortion treatment may become more widespread. Finally, the Bill makes no mention of educating the medical industry and the public at large concerning safe intercourse and abortion rights, which might help to reduce the stigma attached to MTP.

It is also critical that the Act be supported by proper Health Board guidelines that protect against needless delays that simply raise the dangers of a delayed abortion. The Bill’s modification maintains the history of hetero-patriarchal population management, denying women autonomy over their respective bodies. Whereas Bill’s proposal to increase the gestation period from 20 to 24 weeks is admirable, it can be restrictive. There have been several examples of women delaying pregnancy termination for a variety of causes, involving sexual harassment on a juvenile, failure to recognize the pregnancy, domestic violence, and tough familial conditions. Due to the present law’s prohibition on abortions by demand, these women are forced to have dangerous abortions, exposing their health and wellbeing to danger.

The MTP Bill has undoubtedly resulted in some good changes in the realm of abortion legislation. Nevertheless, it still entirely disregards women’s choices. It does not recognize abortion as the freedom to reproductive choice, rather than as an exemption to the offense of inducing miscarriages, for which pregnant mothers can be made accountable under Section 312 of the Code, 1860. Several judgments issued by the Indian judiciary as well as international courts are simply ignored by this law. The United States Supreme Court accorded reproduction decisions ‘constitutional standing’ in Roe vs Wade. The Apex Court, both in Puttaswamy and Navtej Johar’s verdict held that the ‘right to reproductive freedom’ is a fundamental human right under the right to personal liberty (Article 21). As a result, this amendment legislation violates Article 21 of the Constitution.

Any advocacy initiatives for legislative reform, of course, can only be truly realized if they are accompanied by significant social forces. Although the amended legislation significantly improves the initial Act, abortion remains contingent on freedom in India. The pregnant women will continue to be overruled by the healthcare professional’s viewpoint. India must include ‘choice’ as a component of abortion. To guarantee secure abortion, female reproductive decisions should be respected, and the involvement of healthcare professionals should be restricted. Notably, these legislative amendments were enacted during the epidemic without any prior engagement with stakeholders. According to research, caste and socio-economic position influence abortion availability in India. As a result, extensive consultation, educating decision-makers regarding the lived realities of people most influenced by this legislative change, is necessary for efficient legislative reform.

However, when it comes to abortion reforms, India stands out as one of the most progressive countries, with a statue that allows for legitimate abortions for a variety of medicinal, humanitarian, and societal reasons. It is a watershed moment, particularly for the disadvantaged and rape survivors. This law will undoubtedly expand the number of service providers to increase services, but will not transfer decision-making authority from healthcare professionals to pregnant women. Although the bill is a move, in a positive way further measures need to be taken so that women can effectively express their reproductive decisions and have much more self-reliance in regards to their physical well-being.