7 min readJul 24, 2022 08:40 AM IST
First published on: Jul 24, 2022 at 04:00 AM IST
When the US Supreme Court overturned Roe v Wade last month, many sighed in relief that they were in India where abortion has not been ‘criminalised’. While one hopes that was the case, the truth is that there is no “right” to abortion in India. Abortion (“causing miscarriage”) continues to be an offence under the Indian Penal Code, 1860. The Medical Termination of Pregnancy Act, 1971, was only enacted as an exception to the IPC provision. The MTP Act is centered around abortion service providers or registered medical practitioners and seeks to protect them from criminal liability for abortions performed on permissible grounds, and not women whose bodies are regulated.
India’s Supreme Court and High Courts routinely engage with the question of abortion, as women who have been denied or can’t access abortion under the MTP Act approach them for permission to terminate their pregnancies, though India has not had a case similar to Roe v. Wade.
In 2009, the Supreme Court in Suchita Srivastava v. Chandigarh Administration, while deciding whether a woman with intellectual disability has the autonomy to continue her pregnancy, placed the right to reproductive choice of women within the framework of Article 21 of the Constitution.
Although the Court cited Roe v. Wade and spoke of women’s “right to make reproductive choices”, it found the provisions of the MTP Act to be “reasonable restrictions” on the exercise of this choice.
Last week, the Supreme Court reiterated the fundamental right to reproductive choice, bodily integrity and autonomy of women, as it allowed a 25-year-old, unmarried woman to terminate her pregnancy of 23 weeks.
The woman had earlier approached the Delhi High Court, where she was denied permission to access abortion as she was unmarried and her pregnancy arose out of a consensual relationship. The decision was based on the Court’s interpretation of the amended provisions of the MTP Act and Rules that came into effect last year.
As the High Court correctly noted, the MTP Act allows termination of “certain pregnancies by registered medical practitioners”. Section 312 of the IPC continues to criminalise abortion (or “causing miscarriage”) except when performed to save the life of the pregnant woman. A woman “who causes herself to miscarry” can also be held liable under this provision.
The Statement of Objects and Reasons of the 2021 amendment took note of advancements in the medical field which have made it possible to increase the upper gestational limit for abortion, in particular for “vulnerable women” and cases involving substantial foetal anomalies detected much later in the pregnancy. With these amendments, all women, irrespective of their marital status, can seek termination of pregnancy on account of failure of contraception. Further, certain categories of vulnerable women, can seek abortion up to 24 weeks of gestation. These include, survivors of sexual assault; minors; women with physical disabilities, and mental illness; women in humanitarian settings, disaster or declared emergency; and when there is a “change in a [woman’s] marital status during the ongoing pregnancy (widowhood and divorce)”.
The Delhi High Court ruled that this woman, who was unmarried and carrying a pregnancy arising out of a consensual relationship, was “clearly not covered” under these categories. A few days later, a three-judge Bench of the Supreme Court took exception to this “unduly restrictive view” taken by the High Court, and said that the clause relating to “change in marital status” needs to be given a purposive interpretation. Stating that Parliament’s intent could not have been to deny the benefits of MTP provisions to unmarried women, it said that the words “widowhood and divorce” do not exhaustively define the scope of the clause. It would extend to an unmarried woman no longer in a relationship with her partner.
In my fieldwork, that culminated in a report on ‘Legal Barriers to Accessing Safe Abortion Services in India’, the phrase “illegal pregnancy” — a pregnancy arising out of a wedlock — was heard frequently from different stakeholders (doctors, nurses, government officials, women). A government staff member in Mumbai posed a seemingly rhetorical question, “unmarried [pregnancy] is illegal, right?”. When asked if it indeed was, he said that in all “illegal cases”, they first filed an “emergency police report” and proceeded with abortion only after obtaining requisite approvals from police or the Court. The fear of criminal processes was writ large.
In its decision, the Supreme Court has said that MTP Act recognises the “reproductive choice of woman and her bodily integrity and autonomy”, and that “choice must be inherent in a woman whether or not to bear a child”. It is a landmark decision.
The Delhi HC’s observations, that termination of pregnancy would be “akin to killing the child”, adds to the notion of criminality that follows abortion. For outcomes to change, the Supreme Court’s decision would have to reach those who believe pregnancy in unmarried women is “illegal”.
As I began reading the judgment of the Delhi High Court, I was struck by how the petition made a case for termination of this woman’s pregnancy. There is a mention of her marital status, breakdown of her relationship with her partner, her educational background and current employment status, financial background, future prospects of marriage, social ostracization and stigma around having a child out of wedlock. Would she have to state all of this before the gatekeepers of abortion services if she was well within the limits of the MTP Act?
The Indian law on abortion is indeed progressive when compared to the US, yet it continues to place restrictions on women’s access to abortion. The continued criminalisation of abortion creates an aura of illegality around it, and put together with fear of the criminal justice system, makes women fight their way through medical and judicial institutions to seek abortion.
Unless the law is amended to guarantee an affirmative right to reproductive choice, women’s access to abortion will continue to depend on her chances of encountering a willing doctor, or judge who can apply an approach to statutory interpretation that lets her decide what she wishes to do with her body.
The writer teaches at the National Law School of India University, Bengaluru. National Editor Shalini Langer curates the ‘She Said’ column
Abortion rights protesters demonstrate after the U.S. Supreme Court ruled in the Dobbs v Women's Health Organization abortion case, overturning the landmark Roe v Wade abortion decision in Los Angeles, California, U.S., June 29, 2022. (Reuters Photo) 
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