Legally speaking | The right to abort, in light of different judgements
There is a contradiction in abortion law: On one hand, it recognises a pregnant woman's rights, on the other, it devolves agency to medical practitioners
Every few months, the constitutional courts deliver judgements pertaining to abortion and the legal framework surrounding it. Just earlier this week, the Delhi high court recalled its order allowing a woman to terminate her pregnancy of 29 weeks as she was suffering from trauma and depression after her husband’s death. The court relied on the opinion of the Medical Board that “since the foetus does not show any abnormality, feticide in this case is neither justified nor ethical.”
Similarly, in October 2023, Justice Kohli and Justice Nagarathna delivered a split verdict in the case of X Vs. Union of India, confronting reproductive rights and the autonomy of a woman to make decisions against the ethical question of the possibility of survival of the foetus. Later, a larger three-judge bench of the Supreme Court headed by the Chief Justice of India, did not permit the termination of pregnancy beyond 24 weeks since there was no substantial foetus abnormality diagnosed by the medical board that examined the woman.
So, what is the existing law, and why do various courts' decisions differ widely?
Law, currently
In 2021, the Medical Termination of Pregnancy Amendment Act (MTPA) was passed to broaden the scope of the Medical Termination of Pregnancy (MTP) Act and liberalise abortion rights in India. The MTPA also established state-level medical boards authorised to make decisions with respect to the termination of pregnancies in certain cases.
The MTPA raised the time limit for abortions from 12 weeks — as prescribed in the previous version of the law — to 20 weeks of pregnancy, with the approval of one registered medical practitioner (RMP). The upper limit was also revised to 24 weeks of pregnancy with the approval of two RMPs which was only allowed for specific categories of women including survivors of rape and incest; minors; women experiencing a change of marital status (widowhood or divorce); women with disabilities; women with foetal anomaly; and those living through an emergency, disaster, or humanitarian crisis.
In case of significant foetal anomalies, MTPA removed the time limit and established a procedure to seek permission from the state medical board.
This means that the termination of pregnancy beyond 20 weeks — or five months permitted to all women as long as a medical practitioner gives them the go-ahead — depends on whether the pregnancy would pose a risk to the life of the pregnant woman or cause grave injury to her physical and mental health; or whether there is foetus abnormality.
Yet, despite the MTPA’s attempt to broaden the scope of the legal framework for abortion, it still doesn’t provide liberal conditions for persons seeking abortion.
Reading women’s rights into the law
In September 2022, the Supreme Court of India clarified many positions with respect to MTPA in its landmark judgement in X v. The Principal Secretary, Health & Family Welfare Department, Govt. of NCT of Delhi. The apex court held that unmarried women’s right to abortion was the same as that of married women and said, “Rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman”
It also stated that the decision to abort the pregnancy lies solely with the pregnant person.
The Court deliberated on the issue of marital rape — not an offence in India— and clarified that rape as grounds for abortion, included marital rape. The Court noted that rape should include marital rape for the purpose of MTPA. If not interpreted as such, it would force a woman “to give birth to and raise a child with a partner who inflicts mental and physical harm upon her.” The court further held that every pregnant woman in India has a right to reproductive decisional autonomy.
Lacunas in the framework
First, by permitting abortions after 24 weeks only in cases of significant foetal anomalies, the MTPA furthers the prejudice that persons with disabilities are unwanted or undesirable. If the woman indeed has a right to reproductive decisional autonomy as stated by the Supreme Court, then a woman should have agency over her own body and have the right to safe access to abortion irrespective of gestational period and the condition of the foetus. In fact, such a provision is an attempt to adjudicate for the rights of an unborn foetus, which itself is a contentious issue not just in India, but around the world.
Second, the Supreme Court referred to KS Puttaswamy v. Union of India (2017) to state the importance of the dignity of an individual. However, by using the word ‘woman’, the judgement did not consider the rights of everyone across the gender diversity and sexual orientation spectrum, who are also entitled to reproductive health, including the right to access methods of family planning, reproductive healthcare and sex education — all integral to individual dignity.
Third, the Protection of Children from Sexual Offences (POCSO) Act mandates reporting sexual encounters, including consensual sex, involving adolescents. Even if an adolescent approaches an RMP to terminate a pregnancy which is the result of consensual sex, the RMP is required by Section 19 of the POCSO Act to report such activity, thereby introducing a chilling effect on the ability of an adolescent to seek safe and legal abortion services.
Fourth, by granting the right to access abortion conditional to the approval by an RMP, the law does not centre the bodily autonomy of pregnant persons.
What’s more, although the Supreme Court in its 2022 judgement emphasised on the reproductive rights and decisional autonomy of women, whereas recent judgements by the Supreme Court and the Delhi HC — such as those mentioned at the start of the piece — have diverged from these principles.
A long way
No doubt, society and law have come a long way in the position on abortion. Before 1964, it was considered a criminal offence under the Indian Penal Code, 1860 and Criminal Procedure Code. Both the pregnant woman and the medical practitioner who aborted the pregnancy were liable to be punished unless it was proved that the termination was done to save the woman’s life. It was against the backdrop of a rise in maternal mortality rate that the government of India in 1964 appointed the Shah Committee led by Dr Shantilal Shah, a medical practitioner, to carry out a comprehensive review of socio-cultural, legal and medical aspects of abortion. The Medical Termination of Pregnancy Act (MTP Act) of 1971 came into existence based on recommendations of the committee.
The act legalised abortion by an RMP and medical centre deemed to be qualified to conduct abortions. What’s more, termination was permitted on certain grounds: (i) pregnancy, if continued, posed a risk to the life of the pregnant woman or would result in grave injury to the physical and mental health of the pregnant woman; or (ii) the child, if born, would suffer serious physical/mental abnormality.
Apart from these, pregnancy caused due to rape or due to failure of a device/method of contraception between a married couple were also considered as events that could cause grave injury to the physical and mental health of a pregnant woman.
If any of the above conditions were met, pregnancy could be terminated at any time up to 12 weeks if one RMP agreed. But for pregnancy between 12 and 20 weeks, an opinion of at least two RMPs was required. Beyond 20 weeks of gestation, abortion was permitted only if the continuation of pregnancy posed a risk to the life of the pregnant woman.
The amended law and the Supreme Court's judgement in 2022 liberalised abortion laws to a great extent. However, the practices remain State-sanctioned and service provider-centric instead of providing complete bodily agency to a pregnant person. The above-mentioned lacunas are the crux of why different courts adjudicate on this matter differently.
Legal Speaking is an explainer of the finer legal points of a case that's making news this week. Prashant Bhaware is a lawyer and researcher based in Bengaluru. The views expressed are personal
