M: 151

Reproductive rights have been elaborated to include access to contraception, the right to a legal and safe abortion, the right to make informed decisions concerning reproduction free of discrimination, coercion and violence. Every woman has right to reproductive choice i.e., a right to choose whether or not to reproduce, including the right to decide whether to carry or terminate an unwanted pregnancy and the right to choose their preferred method of family planning and contraception.

The Supreme Court of India and several High Courts have made important strides in recognizing the denial of reproductive rights as violations of fundamental rights of women. Recent jurisprudence concerning abortion in India also reflects progressive evolution in the judiciary’s articulation of reproductive rights.

In the landmark judgment, Suchita Srivastava and others vs. Chandigarh Administration[1], three judge bench of Supreme Court held that “a woman’s right to make reproductive choices is also a dimension of personal liberty as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth-control methods such as undergoing sterilization procedures. The reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a compelling state interest in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices. Her reproductive choice should be respected in spite of other factors such as the lack of understanding of the sexual act as well as apprehensions about her capacity to carry the pregnancy to its full term and the assumption of maternal responsibilities thereafter”.

Z vs. State of Bihar and Others[2], the Supreme Court noted that “India has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1993 and is under an international obligation to ensure that the right of a woman in her reproductive choices is protected. The legislative intention of 1971 Act and the decision in Suchita Srivastava prominently emphasize on personal autonomy of a pregnant woman to terminate the pregnancy”. Further, the court observed that “element of time is extremely significant in a case of pregnancy as every day matters and, therefore, the hospitals should be absolutely careful and treating physicians should be well advised to conduct themselves with accentuated sensitivity so that the rights of a woman is not hindered. The fundamental concept relating to bodily integrity, personal autonomy and sovereignty over her body have to be given requisite respect while taking the decision”.

The abortions in India are governed by The Medical Termination of Pregnancy Act, 1971(hereinafter mentioned as MTP Act). Enacted two years before the landmark judgment of the US Supreme Court in Roe vs. Wade[3] in which Court upheld the constitutional right of women to safe and legal abortion with minimal state interference, the MTP Act allows for legal abortions only if certain conditions are met.

The Act expressly prohibits any termination of pregnancy done by the registered medical practitioner which is not in consonance with the provisions of Act. It necessitates the requirement of opinion of one registered medical practitioner if the length of pregnancy is within 12 weeks and two registered medical practitioners if the pregnancy is within 20 weeks. If the registered medical practitioner/practitioners is/are of the opinion that there is a need to terminate pregnancy as there is a fair chance that its continuance may cause a grave injury to her physical or mental health or that its continuance may lead to physical or mental abnormalities to its unborn child, then only the pregnancy can be terminated.[4] Hence, the termination is not done at the will of the woman; rather it rests solely on the opinion of the doctor. In the case of X and ors v Union of India[5], a 22 week fetus was detected with no kidneys and there was a high chance of intrauterine death. The medical board suggested a grave injury to mother’s physical well-being. Therefore the court allowed the termination of pregnancy. 

The Act further explains in what situations mental health can be deemed to be injured. It gives two such circumstances; firstly[6], where the pregnancy is result of an act of rape and secondly[7] where the pregnancy is a result of failure of contraceptive used by married woman or her husband. The act further requires the consent of guardian in order to terminate the pregnancy of a child below 18 years of age or a person who is mentally ill.

The Act also lays down exhaustively the places where pregnancy can be terminated by the registered medical practitioner. Such places include- government established hospitals or government maintained hospitals, a place approved by government or district level committee with chief medical officer or district health officer as the chairperson. [8]

The Act excludes the application of section 4 and section 3 sub section(2) to the extent of length of pregnancy and requirement of opinion of two registered medical practitioners, where such practitioner in good faith believes that it is expedient and necessary to terminate the pregnancy as soon as possible in order to save the life of woman. Such provision ensures that no life is lost due to the delay caused in complying with the provisions. Further, the Act makes every registered medical practitioner liable for every termination of pregnancy which is not in harmony with the said provisions of the Act, with imprisonment for a term of 2 years which may extend to 7 years.[9]

This is the gist of important provisions of MTP Act, 1971. Till now, there is no important amendment made to this Act. It is unfortunate that India which has the second largest population in the world is still following a fifty year old law relating to the most basic right of a woman. This Act has attracted various criticisms from women’s rights NGO’s, experts, media houses, etc. The most important need of the hour is to extend the upper limit for getting the abortion in order to make India pro-choice. Presently, the Act allows termination only upto 20 weeks except in the cases where there is a grave injury to the women’s mental or physical health. There is an imminent need to extent this time limit upto atleast 28-30 weeks since most of the fetal anomalies and health issues of mother are detected at the later stage of pregnancy. Secondly, it is the need of the hour that for certain class of women the upper limit for termination of pregnancy should be removed and they should be allowed to terminate even at the later stage of pregnancy unless such termination can amount to grave injury to her health. This class consists of rape victims, minors and mentally ill women. The reason behind the total removal is that the toll of unwanted pregnancy on their mental and physical health will scar them for life; especially in case of minors who have whole life ahead of them. It was reported that court didn’t allow termination of pregnancy in the 20% of the cases filed by rape survivors. The reasons cited by the court are diverse including the abortion being unsafe, and even rejecting the plea of the petitioner that the pregnancy caused her mental agony on the ground that rape incident was not reported soon enough.[10] In these cases the Court is more tilted towards granting compensation instead of abortion often forgetting that that pain of unwanted pregnancy can never be compensated in monetary terms.

In order to get the pregnancy terminated, women have no final say rather the decision rests solely with the registered medical practitioner. This regressive nature of the Act has given birth to setting up of illegal abortion centers making this basic health facility highly unsafe for women. A study was published in Lancet Global Health which reported that 15.6 million abortions occurred in India in 2015 of which 78% of these were outside health facilities.[11]In case of Meera Santosh Pal and others vs. Union of India[12], another issue with this Act was highlighted wherein a 24 week fetus was detected without a skull and it was suggested by the medical board that it won’t survive after the delivery. It was observed that continued pregnancy for the mother could be fatal. Although, the court in this case allowed the termination, but the point of determination was not the grave anomaly of the fetus, but the deteriorating health of the mother. The Act of 1971 allows termination only where the continuance of pregnancy is dangerous for woman, fetal anomaly is not the point of consideration.

In order to bring some respite to women in India and to keep up with the medical advancement, the Union Cabinet has approved the introduction of Medical Termination of Pregnancy (Amendment) Bill, 2020 in the parliament’s upcoming session. The Bill proposes following amendments-

  1. It removes the requirement of opinion of one registered medical practitioner for termination of pregnancy not exceeding 12 weeks and changes the requirement of opinion two registered medical practitioners to just one, in case of termination of pregnancy not exceeding 20 weeks.
  2. It introduces the requirement of opinion of two registered medical practitioner in case of termination of pregnancy between 20- 24 weeks.
  3. Upper limit for termination of pregnancy is set to be increased from 20 weeks to 24 weeks only in the case of “special categories of women” which will be defined in detail in the upcoming amendment. These categories of women will include amongst themselves “vulnerable women, survivors of rape, victims of incest, mentally ill persons and minors.”[13]
  4. The upper limit for terminating the pregnancy is expected to be removed in case of substantial foetal anomalies which are detected by experienced Medical Board.
  5. The amendment is also set to do away with the regressive provision of the 1971 Act which doesn’t allow an unmarried woman to abort by citing contraceptive failures. The proposed amendment relaxes this provision by substituting “married woman or her husband” to “any woman or her partner”.
  6. The name and any other material information relating to the woman who has undergone the termination of pregnancy shall at all times be kept confidential except where it is required by law for the time being in force.

The above proposed amendments are undoubtedly a step forward in the reproductive rights of women. It seeks to do away with only few problems of 1971, Act which is why it is safe to say that it is an old wine in new bottle. The reason behind it is that the major defect of 1971 Act has been kept untouched by the proposed amendment and that is- failure to extend the upper limit of abortion for all women. It is good to keep an upper limit in order to provide a safe and secure abortion to women however, the limit should be increased keeping in view the technological advancement which is capable of detecting the fetal anomalies even in the later stages of pregnancy. The courts have time and again reiterated that it is a fundamental right of a woman to make the decision for her own body; still the proposed amendment fails to redress this issue.  Another issue is that it only extends the upper limit for abortion for special categories for women like- rape victim, mentally ill women and minor rather than completely doing away with it. The proposed amendment has failed to understand the sensitivity of this issue that these special categories of women are forced to undergo bodily changes for an unwanted child. They are either incapable of having a baby or are carrying the baby of their offender. This is a major flaw which should be redressed timely.

 Although, the proposed amendment has removed the upper limit for abortion in case of substantial fetal anomalies which has been discovered by the Medical Board however, this provision will be beneficial only if it is accompanied by such rules so as to avoid any unnecessary delay which only increases the risk of late abortion.[14] The proposed amendment fails to amend section 4 of the Act which deals with places where pregnancy can be terminated. This provision needs to be expanded and more places need to be included where termination of pregnancy can be carried out. This will reduce activities carried out in the illegal abortion centers. Also, the proposed amendment failed to introduce safety measures to be taken into consideration by such places while terminating the pregnancy.

The MTP Bill 2020 has some insightful provisions and is undoubtedly an important step in women’s reproductive right. The proposed amendments will keep India upbreast with the technological advancement in medical science and will ensure the safety of women in carrying out abortion by registered medical practitioners. However, in order to make India more pro-choice the following suggestions need to be followed:

  1. The upper limit for the termination of pregnancy should be removed in the case of special categories of women like rape victim, minors and mentally ill women and in order to ensure the autonomy over her body, such women should be allowed to terminate notwithstanding the duration of pregnancy unless such abortion is fatal to their health.
  2. If the upper limit for termination of pregnancy should be increased upto atleast 28-30 weeks for all women(except vulnerable class where there should be no upper limit) to keep pace with the technological advancement. In other words, there should be a blanket increase of upper limit for all women.
  3. The MTP rules should be introduced to set a particular time limit within which the medical practitioner has to signify his opinion, so as to avoid any unnecessary delay.
  4. Court should be more sensitive towards the cases where a woman pleads to get her pregnancy terminated beyond the permissible limit and should dispose of the case as soon as possible so as to avoid any risk of aborting in late pregnancy.
  5. Section 4 of the Act should be expanded so as to include multiple places for legal abortion.
  6. More women representatives should be consulted before approving the final draft on Medical Termination of Pregnancy (Amendment) Bill, 2020.

A nine-judge bench of the Supreme Court of India in the case, Justice K S Puttaswamy vs. Union of India[15] unanimously recognized privacy as an inalienable and fundamental right, covering personal autonomy relating to the body, mind, and to making choices, as well as informational privacy. The judgment specifically recognized the constitutional right of women to make reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution. Therefore, State is under obligation to not only provide for comprehensive health information and services related to safe abortions but also ensure that women are provided with opportunity to make fully informed decisions regarding their reproductive choice.

The pregnancy takes place within the body of a woman and has profound effects on her health, mental well-being and life. Thus, it is the personal decision of the woman to carry on or abort her pregnancy and nobody should interfere with it. The unwanted pregnancies excessively burden women and forcing a woman to continue a pregnancy violates woman’s bodily integrity and aggravates her mental trauma. Therefore, one must respect the basic right of women: the right to autonomy and to decide what to do with their own bodies, including whether or not to get pregnant and stay pregnant.

[1] AIR 2010 SC 235.

[2] AIR 2017 SC 3908.

[3] 410 U.S. 113 (1973).

[4]The Medical Termination of Pregnancy Act, 1971 (Act 32 of 1971),  s. 3.

[5]AIR 2017 SC 105.

[6]The Medical Termination of Pregnancy Act, 1971 (Act 32 of 1971),  s. 3 exp. 1.

[7]The Medical Termination of Pregnancy Act, 1971 (Act 32 of 1971),  s. 3 exp. 2.

[8]The Medical Termination of Pregnancy Act, 1971 (Act 32 of 1971),  s. 4.

[9]The Medical Termination of Pregnancy Act, 1971 (Act 32 of 1971),  s. 5.

[10]Courts didn’t allow abortion in 20% of rape survivors, India, available at: https://www.thehindu.com/news/national/courts-did-not-allow-abortion-in-20-of-cases-filed-by-rape-survivors-study/article29558604.ece (last visited on February 29, 2020).

[11] Why India needs new MTP Act, India, available at:https://www.livemint.com/science/health/why-india-needs-a-new-mtp-act-1567317067262.html (last visited on February 27, 2020).


[13] Cabinet approves the medical termination of pregnancy amendment Bill 2020, India, available at: https://www.pmindia.gov.in/en/news_updates/cabinet-approves-the-medical-termination-of-pregnancy-amendment-bill-2020/ (last visited on February 27, 2020).

[14]Seeking a more progressive abortion law, India, available at: https://www.thehindu.com/opinion/op-ed/seeking-a-more-progressive-abortion-law/article30777394.ece(last visited on February 27, 2020).

[15] (2018) 4 SCC 196.