Opinion On reproductive rights, India’s MTP and Surrogacy Acts don’t go far enough
Angellica Aribam writes: A person’s right to choose to end the pregnancy in the first few weeks is still not recognised in India. After overturning of Roe v Wade, measuring ourselves on a yardstick of regression shouldn’t become our way of governance
Angellica Aribam: Current reproductive rights regulatory framework shows that India falls short. 
Is India really ahead of the West in terms of reproductive rights? Contrary to the grandstanding since the overturning of the landmark Roe V. Wade judgment, the truth is, no. Bodily autonomy and reproductive rights must be viewed from three lenses — legal, medical, and social. Only when women and non-binary pregnant people enjoy absolute autonomy over their own bodies by these parameters, can one claim that India is showing the way to the West.
First, the legal standpoint: The Medical Termination of Pregnancy (Amendment) Act 2021 is far from ideal and has been criticised for not taking a rights-based approach. It doesn’t give the pregnant person complete autonomy in ending the pregnancy, instead making them go through various systemic barriers. Additionally, it uses the word “woman”, thereby leaving out pregnant transgender and non-binary persons who are biologically capable of bearing children. It forces them to identify themselves in the gender-binary ignoring their gender identity.
According to the Act, a pregnancy can be terminated on the following conditions: Grave danger to the physical/mental health of the pregnant woman; foetal abnormalities; rape/coercion; and contraceptive failure. A woman’s right to choose to end the pregnancy even in the first few weeks is still not recognised in India. In fact, the final decision falls not on the pregnant person, but on registered medical practitioners (RMP). Depending on the gestational period, one/two RMPs or a medical board decide “in good faith” that the pregnancy can be terminated. The constitution of a medical board, a requirement by the Act, is considered a barrier by the World Health Organisation. It stands no reason that a medical board, insulated from any impact of pregnancy, should be able to veto a person’s right to access abortion.
Other significant issues are the lack of access to RMPs, affordability, and social stigma leading to unsafe abortions. Herein, it is important to look through an intersectional lens, and factor in class and caste privilege. Abortion facilities in private medical centres are expensive, available only for those who have the resources. Not all public health centres, especially in rural India, provide abortion facilities. Most unmarried women end up resorting to unsafe abortions in illegal clinics or at home.
According to the latest National Family Health Survey 2019-2021, 27 percent of the abortions were carried out by the woman herself at home. According to United Nations’ Population Fund’s (UNFPA) State of the World Population Report 2022, around 8 women die each day in India due to unsafe abortions. It also found that between 2007-2011, 67 percent of the abortions were classified as unsafe. Unsafe abortion was one of the top three causes of maternal deaths.
One can’t talk about reproductive rights in India without mentioning surrogacy. The Surrogacy (Regulation) Act 2021, while well-intentioned, leaves much to be desired. The plethora of regulations one must undergo is antithetical to a dignified standard of living. Experts have pointed out that the Act is exclusionary in nature, disregards privacy, and also exploits women’s reproductive labour. Only a heterosexual married couple (with certain preconditions) can be the intending parents. It strips the reproductive autonomy of LGBTQ+ persons and single, divorced, and widowed intending parents. It can be seen as a violation to the fundamental right to equality.
Experts also believe that regulations, rather than a complete ban on commercial surrogacy, should have been the way forward. Altruistic surrogacy denies women compensation for their reproductive labour and is seen as a direct manifestation of the patriarchal mindset.
The Act requires the intending couple to declare their infertility and reveals the identity of the surrogate, both of which violate the right to privacy. The landmark Puttaswamy judgment discusses bodily privacy – the right over one’s body and “the freedom of being able to prevent others from violating one’s body.” The current reproductive rights regulatory framework falls short in guaranteeing bodily privacy.
Abortions in India are a complex topic. The skewed sex ratio is proof that unsafe abortions and female foeticide are rampant. There are still gaps that need fixing in both the MTP Act 2021 and the Surrogacy Act. The situation in India is far from perfect and we should take this moment to reflect and learn from progressive practices around the world. We should strive for inclusivity, complete bodily autonomy, and reproductive equity. Measuring ourselves on a yardstick of regression shouldn’t become our way of governance. The West is not just one country, after all.
The writer is the founder, Femme First Foundation
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