A DETAILED STUDY OF THE EVOLUTION OF INDIAN ABORTION LAWS

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Abstract

In 2014, a referral to amend the medical termination of pregnancy act 1971 was made to the government of India. Six years after the initial referral the amendment was passed in the Rajya Sabha on 17th March 2021 and now awaits the president’s assent. The amendment was much needed and long-awaited. As the introduction is on the brink of becoming a law, this paper deals with the evolution of abortion laws in India. From criminalizing abortion to tweaking the term ‘husband’ with ‘partner’, India has come a long way in liberating women and upholding their rights. Throughout this paper, the author analyses the conditions before and after the introduction of the Medical termination of pregnancy act 1971. The social, cultural, and demographic reasons behind its introduction. The laws previous to the medical termination of pregnancy act 1971 are discussed. Failure of effective implementation of the laws and embracing the modern mindset about medical termination is introduced in the latter half of the paper. A critical analysis of ‘the medical termination of pregnancy (amendment) bill 2021 is also presented. The paper concludes with the opinion and takes of the author in regards to the above-mentioned bill.

Introduction

On 17th March 2021, Rajya Sabha passed the medical termination pregnancy (amendment) bill 2020 (Hereinafter MTP bill 2020). The bill presently awaits the president’s assent to become a law. This introduction marks a major win for the women as it gives respite to women who are rape survivors, differently-abled, minors, victims of incest, etc.[1] One cannot aggrandize this amendment as in reality India has been too late in introducing these much-needed regulations. India had legalized abortion even before the US had passed the landmark Roe v. Wade judgment which liberalized abortions in America.  India started deliberations to legalize abortions in the 1960s when there were only 15 countries that allowed the same.[2] Despite such early introductions, India has lacked immensely in providing a safe environment for abortions. The disparity between laws and their implementation is staggering and worrisome. In 2015 there were about 15.6 million abortions occurred in India, 78% of those were conducted outside of health care facilities.[3] This ratio highlights the immense difficulty women face to obtain a safe and approved abortion in the country. Statistics suggest that the difference between approved and unapproved abortions happening in the country is Jackal and Hyde. Nonetheless, the passing of the MTP bill is very significant as India looks towards new dawn where women not only deserve rights but actually enjoy them. Over the course of this paper author analysis the laws that governed abortions in India, the social, political, and ideological reasons behind the introduction of the medical termination of pregnancy act 1971, issues in its implantation, and the recent amendment. Analysis regarding the latest amendment, its impact on rural India, and the underprivileged section is also taken into consideration throughout this paper.

Legislations prior to MTP act 1971

Around the mid-nineteenth century, abortion practitioners in Europe were laywomen healers. This did not go well with the medical profession that was dominated by men. Thus, an early attack against abortion was taken up by doctors as a plan for weakening competition from all `non-professional’ practitioners.[4] The condition was no different in America, Medical practitioners coupled with church banned abortion considering it as a transgression of faith.[5] During The colonial rule majority of laws in India were influenced by British legislations, the same stood for Abortion. Before the introduction of the MTP act, India did not permit abortion except in the cases of saving the life of the mother.[6] Major Indian laws such as the Indian penal code 1860 and code of criminal procedure 1898 took their origin from the British offenses against person act 1861.[7] As in British laws, abortion was made a crime punishable under section 312 of the Indian penal code. Section 312 read as follows-

“Causing miscarriage – Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage is not caused in good faith to save 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 is 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.”

It is important to note that the lawmakers purposefully avoided using the term ‘abortion’ and settled with miscarriage. There isn’t any strong evidence to suggest the reason behind the same, but scholars have opined that it was perhaps done to avoid injuring the sentiments of the traditionally bound Indian community.[8] Even though miscarriage is not a precise synonym of abortion and it only refers to spontaneous abortion, the term ‘voluntarily causing miscarriage’  which is used in the code refers to criminal abortions.  Section 312 of IPC speaks of causing miscarriage in two circumstances that is when a woman is ‘with child’ and when a woman is ‘quick with child’.[9] According to judicial interpretation, a woman is ‘with child’ as soon as the pregnancy begins and is ‘quick with child’ when the motion is felt.[10] According to section 312 of IPC, the offender could be a woman herself or others.[11] It has to be noted that in a case the term of pregnancy was almost complete and an attempt to cause miscarriage resulted in childbirth. Here conviction under section 312 was set aside and one under section 511 for an attempt to bring about miscarriage was maintained.[12] The offense mentioned under section 312 can only be committed when a woman is pregnant and not preceding or after it.

Section 312 allowed abortions only on therapeutic (medical) grounds. The medical grounds were considered lawful when the life of the mother is at risk and abortion becomes inevitable. Justice Macnaghten explained the validity of therapeutic grounds in the case of Rex v. Brown[13] In the said case, a girl aged fifteen was criminally assaulted which resulted in her pregnancy. An eminent obstetrics surgeon and gynecologist, who terminated the pregnancy was charged under section 58 of the Offences Against the Person Act for causing illegal abortion. Justice Macnagten observed that if the operation was done bona fide to save the life of the mother, the defendant was entitled to an acquittal. Avoiding the physical or mental breakdown of the mother was considered to be a bona fide object and if the doctor thought it was necessary to protect the life of the mother, he could proceed with the same.  Now the burden was upon the crown, that is the prosecution to prove that the abortion was not bona fide and lawful. The jury gave a verdict of acquittal since the Crown failed to comply with the obligation of proving that the operation was not procured to preserve the life of the woman.

During this period despite having stringent legislations in place to counter abortions, it was estimated that as many as five million abortions were carried out in India, out of which more than three million were illegitimate.[14] In a country like India whose criminal laws were manifested from religious and ideological beliefs, criminalisation of abortion had only led to the increase of under-the-table business. According to a survey conducted in Tamil Nadu hospitals in 1955-56 it was found out that the majority of the cases of excessive bleeding and sepsis hemorrhage were attempts of illegal abortions.[15] Finally, in 1971 India dawned towards a new era by legalising abortions.

Introduction of MTP act 1971 and subsequent amendment

After attaining independence in 1947 India saw a series of legislations that sought to put an end to age-old social evils. The Hindu Marriage act 1955, Dowry prohibition act 1961, Bonded labour system (abolition) act 1967 were some of them. The apex court also played its part by giving some important judgments against discriminatory and outclass practices.[16] In addition to this, the 1960s and 70s saw liberalisation of abortion laws across Europe and  America which continued to many other parts of the world.[17] The abortion act of 1967 made abortion legal across Great Britain while the Soviet Union allowed access to abortion in 1955.[18] Despite the inception of a revolution for maternity rights, there were only 15 countries that legalised abortion in the 1960’s.[19] India has definitely started off in the right direction after independence with the abolition of many age-old patriarchal laws. But the emancipation of women’s rights was not the sole reason for India to bring out the MTP act in 1971. There was a larger threat that loomed largely and grabbed attention.

Since 1947 India’s death rate came down from 27 per thousand to 14 per thousand in 1970. Between 1961 and 1971 India’s average annual population growth rate was 2.2%.[20] This astonishing increase in number clearly suggested that India needed to adopt better family planning. Additionally, an unprecedented uneasiness crept within the ministry of health and family welfare about the large number of abortions taking place in the country.[21] The ministry had to come to terms with the fact that the majority of women seeking abortions were married and under no socio-cultural pressure to conceal their pregnancies and that decriminalizing abortion would encourage women to seek abortion services in legal and safe settings.[22] These multiple reasons set the stage for the initiation of discussions regarding legalisation of abortions in India.

In the year 1964, the government of India set a committee under the chairmanship of Shanti Lal Shah to understand the problems relating to legalisation of abortion and to suggest steps to improve the existing laws.[23] After carefully considering the pros and cons of the entire issue and sticking to a pragmatic approach with the socio-legal problems involved, the committee suggested the liberalisation of outdated legislation under section 312 of IPC. The committee submitted an all-inclusive report suggesting various situations justifying termination of pregnancy under law. The committee was of the opinion that this should be allowed not for saving the life of the pregnant woman, but also to avoid grave injury to her physical or mental health.[24] The government of India accepted the recommendation of the committee and the proposal to establish new legislation to govern abortions and passed in the parliament in the year 1971.[25]

The medical termination of pregnancy act 1971 provides for more liberal conditions for a woman to undergo a termination. Under the said act certain new provisions were implemented which broadened woman’s opportunity to undergo abortion[26]

  1. When pregnancy is caused by rape and its anguish might lead to grave injuries to mental and physical health.
  2. When pregnancy is caused by the failure of contraceptive devices and the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
  3. If a woman is under the age of 18 years or is a lunatic, then the consent of her guardian shall be compulsory to terminate her pregnancy.

Under this law, the termination is allowed up to 20 weeks and requires a second doctor’s approval if the pregnancy is beyond 12 weeks.[27] Under the said law the termination can be conducted in government hospitals or government-approved institutes.[28] This was a groundbreaking introduction that received a mixed response from society. Later in 1975, Medical termination of pregnancy rules and regulations was introduced. It defined the criteria and procedures for approval of an abortion facility, procedures for consent, keeping records and reports, and ensuring confidentiality.[29] After the legalisation of abortion, in the initial years that is between 1972 and 1986 only a marginal increase in abortions was seen.[30] In contrast, the ’80s saw a decline in the abortion rate while the trend reversed slightly in the 90’s.[31] It was evident from the statistics that the legalisation of abortion was confined to urban areas and places that had proper government facilities. Millions of people in villages still struggled to access abortion. The negative facet of the implementation of the MTP act is also fraught with hard comings. The problems involved in detection, prosecution, and proof of criminal abortions are, if anything, worse under the liberalized conditions of the MTP act than they were before.[32]

The shortcomings in the MTP act of 1971 is beyond its implementation challenges. The statutory language in the legislation is vague on multiple fronts. It does not define the term ‘grave” as used in the phrases “grave injury to her physical or mental health”, and “grave physical or mental abnormalities”. The absence of legal definitions for these terms leaves individuals and doctors with very broad discretion in considering what really matters in saving the life of a mother.[33] Many organisations and activists have challenged MTP stating it was unconstitutional.  The supreme court has time and again upheld its validity. In Nikhil D. Dattar v. Union of India[34] MTP Act was challenged on the ground of non-inclusion of eventualities vires of the Act. The court dismissed the petition stating courts are not empowered to legislate upon statutes. In 2009, a three-judge bench of the Supreme Court delivered a landmark verdict in which they held that a woman’s right to make reproductive choices was a component of the right to personal liberty under Article 21 of the Constitution.[35]

The Medical termination of pregnancy act was amended in the year 2002 and amended rules and regulations were brought in the year 2003.[36] Under this amendment, the government decentralised the legislative regulations of abortion facilities from state to district level and the term of imprisonment was also increased. Other than that, the amendment also established certain physical standards for first-trimester abortions while the physical standards for second-trimester abortions remained the same. This was the first amendment in three decades and was far from what society needed. Over the years the demand to amend the MTP act grew louder with NGOs and women’s rights activist groups stepping in.

Call for revamping abortion laws-

The medical termination of pregnancy act was criticized for various reasons. A major criticism was for its strong medical bias. The “physicians only” policy for abortion providers exclude mid-level health providers and practitioners of alternative systems of medicine.[37] The requirement of a second medical opinion for a second-trimester abortion further restricts access, as the rural areas are not well equipped and access to doctors is extremely limited.  Further twenty-week time limit to conduct abortions has been questioned as in a number of situations legal and practical barriers have caused delays.[38] (The Supreme Court has allowed termination of pregnancy past 20 weeks in exceptional circumstances.[39]) Another major problem is the lack of express provision or literature in the code that allows unmarried girls/widows to undergo an abortion.[40] Even though the MTP act does not prohibit unmarried women or widows from undergoing abortions, the social, ethical, and moral opinions of the abortion carriers create a world of trouble for abortion seekers. Except in the case of a lunatic or a girl below the age of 18, the abortion providers cannot seek the consent of parents or guardians.[41] However, the abortion providers harass a young unmarried woman who tries to get an abortion under their express consent. The emancipation of every woman and freedom of choice to terminate the pregnancy should be available in an ideal world. In February 2021, India passed the ‘Medical termination of pregnancy (amendment) act 2021’. While the enthusiastic organisations lauded this introduction, more contemplative bodies criticized the introduction owing to legislative and sociological problems. The much-needed respite for rural and underdeveloped classes is still a distant dream owing to the socio-cultural mindset of the country.

The medical termination of pregnancy (amendment) bill 2021

The Rajya Sabha has approved the Medical Termination of Pregnancy (Amendment) Bill, 2021 to amend the Medical Termination of Pregnancy Act, 1971 on 16th March 2021.[42] The major highlight of the bill is the amendment to the provision to allow termination up to the 24th week of pregnancy.[43] The Bill regulates the state of pregnancy, specifically focussing on the increase of the time limit for abortion. Prior to the amendment after 12 weeks of pregnancy, abortion required the opinion of two doctors. The new amendment allows abortion until 20 weeks with the opinion of only one registered medical practitioner. [44] The new amendment also permits state governments to decide if pregnancy may be terminated post 24 weeks due to fetal abnormalities.[45] To determine foetal abnormality the state has to set up a medical board which shall consist of a Paediatrician, Radiologist/ Sinologist, gynecologist etc.[46] Furthermore, under the latest amendment, the name and other particulars of a woman whose pregnancy has been terminated shall not be revealed barring a person who has been authorised by law for time being in force. Another major introduction is under the failure of the contraceptive clause to unmarried women to provide access to safe abortion based on a woman’s choice, irrespective of marital status.[47] The amendment has introduced a change in Section 3 of the Act. As opposed to using the term ‘married woman and her husband,’ the new amendment uses the term ‘woman and her partner.’[48] The Medical termination of pregnancy (amendment) act is a progressive and desirable legislation. But it is not devoid of flaws. The criticism of this bill is presented in multiple folds by the experts.

One of the major facets of criticism is the failure to address sex-selective abortions.[49] Many women in India undergo sex-selective abortion due to pressure from their family or their husband. Here, a woman is coerced to contain but cannot express their anguish or uninterest to proceed with the pregnancy. Another challenge in developing abortion laws is their overlapping with the POSCO act.[50] As mentioned earlier under the MTP act, there exists a confidential clause under which the identity of an individual is protected while the exact opposite happens in POSCO. Under POSCO, there is a mandatory requirement of reporting sexual offenses against children which also includes girls who are competent enough to give consent.[51] While writing for “The leaflet” Meenaz Kakilia, a Lawyer at Bombay high court explains the vagueness present in the clause which mandates the setting up of medical boards.[52] She highlights “It is not yet clear whether these medical boards are to be constituted by the State Government in every district or whether only one medical board is to be constituted for the entire state.”  This would raise the additional concern of access to boards, particularly for rural women.

Conclusion –

The laws governing abortion have come a long way in India. From criminalising abortion to legally permitting abortion for unmarried woman, the development is commendable. The introduction of the Medical termination of pregnancy (amendment) act 2021 was a necessary change in the modern era. However, one can conclude that the legislation-making process of the government has been loathsome. 7 years after the recommendation from the health and family welfare ministry the MTP (amendment) bill was passed. 7 years after the setting up of the Shanti Law Shah committee the MTP act was passed. This clearly showcases a delay in the introduction of legislation. The government had to be pushed to bring in amendments by a plethora of judgments. It should not be that way. Government has to take the initiatives and identify the problems. The medical termination of pregnancy (amendment) bill 2021 is indeed progressive and upholds women’s rights. It is pertinent to note that no legislation or policy fails to attract criticism. Setting up of medical boards was required as approaching higher courts for permission for the termination in each case would lead to delay and expenditure. Now, the problem of accessibility for the rural population is valid and noteworthy. But one cannot surpass the fact that more than 60% of India’s population is restricted to rural areas. Rather than engaging in criticizing and defending the legislation, working towards better implementation is the best way ahead. The POSCO and MTP clash have to be noted by the government and it would be right to expect a formal tweak in POSCO in the coming years.

India is a country with an above 130 crore population. Introducing legislation, especially those which have their fair share of deal with ethical, moral, and ideological mindsets of people, is quite challenging. With the insurgence of popular culture and roots of ancient traditions still standing strong, a fine balance has to be formed between the former and the latter. The medical termination of pregnancy (amendment) act 2021 is a classical example of the same. The legislation is contemplated, reasonable and expandable. In a neo-traditional country like India, it has made a strong statement to stand the test of time.


[1] Gaurang Kanth, “Medical termination pregnancy amendment bill 2020: A short analysis”, Wion, Available at https://www.wionews.com/opinions-blogs/opinion-medical-termination-of-pregnancy-amendment-bill-2020-a-short-analysis-380829. (Last visited 11th June 2021)

[2] KD Gaur, “Abortion and the law in India”28 Journal of Indian Institute of law 352 (1986).

[3] “Illegal abortions in India” The new Indian Express, 29th July 2018 Available at https://www.newindianexpress.com/thesundaystandard/2018/jul/29/illegal-abortions-rampant-in-india-1849953.html. (Last visited on 11th June 2021).

[4] Amar Jesani, Aditi Iyer, “ABORTION- WHO IS RESPONSIBLE FOR OUR RIGHTS?”, in Malini Karkal, Our lives our health, 114-130 (Coordination unit/1995).

[5] Ibid.

[6] Section 312, Indian penal code 1860 (Act no 45 of 1860).

[7] Siddhivinayak S Hirve, “ABORTION LAW, POLICIES AND SERVICES IN INDIA: A CRITICAL REVIEW” 12, Reproductive health matters 12(114).

[8] Id at 1.

[9] Queen Emperor v. Ademma, I.L.R (1886) Mad 369.

[10] Ibid.

[11] See Explanation clause of section 312.

[12] Queen Emperor v. Arunia Bewa, (1873) 19 W.R (Cr) 230.

[13] (1938) 3 AII ER 615.

[14]  NR Madhava Menon, “POPULATION POLICY LAW ENFORCEMENT AND THE LIBERALISATION OF ABORTION: A SOCIO-LEGAL ENQUIRY INTO THE LIBERALISATION OF ABORTION IN INDIA” 16 J.I.L.I 638(1982).

[15] Ibid.

[16] Bandhu Mukti Morcha v. Union of India A.I. R 1984 SC 802, See also People’s union of democratic rights v. Union of India A.I.R 1984 SC 1473.

[17] Id at 7.

[18] R Roemer, “ABORTION LAW: THE APPROACHES OF DIFFERENT NATIONS, 57 American journals of Public health 1906-1922 (1967).

[19] Ibid.

[20] “INDIA’S POPULATION GROWTH IN THE 1970’S” 7 population and development review, 326 (1981). 

[21] Supra note 2 at 353.

[22] Chhabra R, “STUDY OF ABORTION IN INDIA, AN OVERVIEW”, Ford foundation study 48(1995).

[23] Shantanu, “ABORTION- HISTORY, AND LAW IN INDIA”, 3 IJLMH, 372(2020).

[24] Supra note 2 at 354.

[25] The medical termination of pregnancy act,1971 (Act no. 34 of 1971.

[26] Section 3, The Medical termination of pregnancy act 1971.

[27] Ibid.

[28] Section 4, The medical termination of pregnancy act 1971.

[29] Supra, note 3 at 115.

[30] Ibid.

[31] Ibid.

[32] Supra note 14 at 642.

[33] Raj Pal Mohan and Raj Pa Mohan, “ABORTION IN INDIA” 50, Pi Gamms Mu IHSSS, 142(1975).

[34] S.L.P (Civ.) No. XXXX of 2008.

[35] Suchita Srivastava v. Chandigarh administration, (2009) 9 SCC 1.

[36] The Medical termination of pregnancy amendment act 2002, acts of the parliament (no 64 of 2002).

[37] Supra, note 7 at 116.

[38] “REFORMS TO ADDRESS WOMEN’S AND GIRL’S NEEDS FOR ABORTION AFTER 20 WEEKS IN INDIA”, Centre for reproductive rights. 12 (2018).

[39] X v. Union of India W.P(C) No. 593 of 2016.

[40] Bhavish Gupta, Meenu Gupta, “THE SOCIO-CULTURAL ASPECTS OF ABORTION IN INDIA: LAW, ETHICS, AND PRACTISE” 9 ILI law review 145(2016).

[41] Id at 26.

[42] “Rajya Sabha passes medical termination of pregnancy (amendment) bill 2021, Ministry of health and family welfare (17th March 2021) (Last visited  15th June 2021) Available at https://pib.gov.in/PressReleasePage.aspx?PRID=1705381.

[43] Neetu Chandra Sharma, “RS passes bill allowing termination of pregnancy up to 24 weeks in special cases” Mint Available at https://www.livemint.com/news/india/rs-passes-bill-allowing-termination-of-pregnancy-up-to-24-weeks-in-special-cases-11615982873601.html.  (Last visited on 15th June 2021).

[44] Id at 1.

[45] Ibid.

[46] Section 3(2d), The medical termination of pregnancy (amendment) 2021.

[47] “India’s amended law makes abortion safer and more accessible”, WHO, Available at https://www.who.int/india/news/detail/13-04-2021-india-s-amended-law-makes-abortion-safer-and-more-accessible. (Last visited on 15th June 2021).

[48] Ibid.

[49] Devika Nair, Shruthi Singhi and Sumathi Thusoo, “Why amendment to medical termination of pregnancy don’t go far enough”. The Wire, Available at https://thewire.in/health/medical-termination-of-pregnancy-amendment-bill-women-abortions.  (Last visited on 15th June 2020).

[50] Ibid.

[51] Suyash Karangutkar, ”Amend POSCO act to protect rights of minors, says doctors” The Hindu Available at https://www.thehindu.com/news/cities/mumbai/amend-pocso-act-to-protect-rights-of-minors-say-doctors/article26786455.ece. (Last visited at 15th June 2021)

[52] Meenaz Kakalia, “Abortion in India-still, not a privilege” The leaflet, Available at https://www.theleaflet.in/abortion-in-india-still-not-a-right-but-a-privilege/. Last visited (15th June 2021).

Author: Nilesh Beliraya K, Chanakya National Law UniversityTOGI

Editor: Kanishka VaishSenior Editor, LexLife India.

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