Explained: What is India’s law on abortion, and why has a pregnant unmarried petitioner gone to Supreme Court in appeal?

What is the case about?

Last week, a 25-year-old woman sought the Delhi High Court’s permission for termination of a pregnancy of 23 weeks and 5 days.

The woman, a permanent resident of Manipur who currently resides in Delhi, told the court that the pregnancy was a result of a consensual relationship, and that she wanted to terminate the pregnancy because her partner had refused to marry her.

She also told the court that she feared stigmatisation as a single, unmarried woman.

What was the Delhi HC’s decision?

A two-judge Bench of the Delhi High Court comprising Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad refused to allow the termination of the pregnancy. In oral observations, the judges coaxed the woman to carry her pregnancy to term, and to give up the newborn for adoption — even offering to personally pay for the process.

“We will not permit you to kill the child; 23 weeks are over. The child will be in the womb for how many weeks for normal delivery? Hardly how many weeks are left? Give the child to somebody in adoption. Why are you killing the child?” the Bench said.

On the challenge made to the law, the HC issued notice to the central government.

What is India’s law on abortion?

Section 312 of the Indian Penal Code, 1860, criminalises voluntarily “causing miscarriage” even when the miscarriage is with the pregnant woman’s consent, except when the miscarriage is caused to save the woman’s life. This means that the woman herself, or anyone else including a medical practitioner, could be prosecuted for an abortion.

In 1971, The Medical Termination of Pregnancy Act (MTP Act) was introduced to “liberalise” access to abortion since the restrictive criminal provision was leading to women using unsafe and dangerous methods for termination of pregnancy.

The MTP Act allowed termination of pregnancy by a medical practitioner in two stages.

For termination of pregnancy up to 12 weeks from conception, the opinion of one doctor was required.

For pregnancies between 12 and 20 weeks old, the opinion of two doctors was required — they would have to determine “if the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health” or there is a “substantial risk” that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously “handicapped” before agreeing to terminate the woman’s pregnancy.

In 2021, Parliament amended the law and allowed for a termination under the opinion of one doctor for pregnancies up to 20 weeks. For pregnancies between 20 and 24 weeks, the amended law requires the opinion of two doctors.

For the second category, the Rules specified seven categories of women who would be eligible for seeking termination. Section 3B of Rules prescribed under the MTP Act reads: “The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of subsection (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely:

“(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.”

While the law recognises change in circumstances of the relationship status between a pregnant woman and her spouse — in the case of divorce and widowhood — it does not envisage the situation for unmarried women. This is the gap in the law that the petitioner before the Supreme Court falls in.

Why does the legislation have this gap?

In 1971, when The MTP Act was enacted, it was essentially framed with a moralistic lens that put married women in focus. The 2021 amendment has not changed that view.

A 2021 report, “Legal Barriers to Accessing Safe Abortion Services in India: A Fact Finding Study” by the Center for Reproductive Rights, National Law University, Delhi and National Law School of India University, Bangalore, highlights these concerns.

“Parliamentary debates on the MTP Act reveal that legislators were concerned that a “liberal” abortion law would promote sexual promiscuity amongst women. Addressing this concern, the government, through its ministers, assured Parliament that “by far the greatest number of women who seek abortion are married,” the report said.

The Statement of Objects and Reasons appended to the MTP Act, 1971 also states that “most of these mothers (sic) are married women, and are under no particular necessity to conceal their pregnancy”.

Another view is that, despite the focus on married women, the MTP is not a legislation focussed on women and their reproductive rights — rather, it is a law that draws red lines that medical practitioners cannot cross while performing abortions.

“The MTP Act is a provider protection law, that seeks to shield the RMP from criminal liability, and as such it does not centre the pregnant woman’s needs, reproductive autonomy, and agency. Access to abortion is not at the will of the pregnant woman. It is a highly regulated procedure whereby the law transfers the decision-making power from the pregnant woman to the RMP and provides great discretion to the RMP to determine whether abortion should be provided or not,” the 2021 report said.

Even so, India’s legal framework on abortion is largely considered progressive, especially in comparison to many countries including the United States where abortion restrictions are severely restricted — both historically, and at present.