Abortion laws in India

03 November, 2023

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Introduction

Abortion is a complex and sensitive subject, and its legal status varies across different countries. In India, abortion laws have undergone significant changes over the years with a motive to ensure women’s reproductive rights and safeguard their health. This article provides an overview of the general definition of abortion and miscarriage, and abortion laws in India as well as explores the relevant sections of the Indian Penal Code (IPC) and highlights the significance of the Medical Termination of Pregnancy (MTP) Act, 1971.

Over the years, the Supreme Court of India has played a significant role in interpreting the constitutional provisions related to reproductive rights and access to safe abortion. The right to life, personal liberty, privacy, and equality enshrined in the Constitution have been expanded to include reproductive autonomy and healthcare. The article will also list landmark judgments related to the medical termination of pregnancy.

Abortion and Miscarriage

In Layman’s language, abortion is a deliberate termination of pregnancy, resulting in the removal or expulsion of the fetus or embryo from the uterus, before it is able to survive outside the uterus or can develop to full term. According to the Merriam-Webster Dictionary, the term ‘Abortion’ is defined as “the termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or fetus.” It is a voluntary decision made by the pregnant woman or due to medical reasons in some cases and is also known as induced abortion. Abortion can be performed through various methods such as medication or surgical procedures.

On the other hand, miscarriage is the natural or unintentional loss of a pregnancy before the fetus is able to survive due to various factors such as hormonal imbalances, fetal development problems, genetic abnormalities, or maternal health issues. It is also referred to as spontaneous abortion and often happens during the first trimester of pregnancy, but it can occur at any stage before the fetus reaches viability. As per the Merriam-Webster Dictionary, miscarriage is defined as “spontaneous expulsion of a human fetus before it is viable and especially between the 12th and 28th weeks of gestation.” Miscarriages are typically beyond the control of the pregnant women and are not the result of any intentional action to terminate the pregnancy. Under the Indian Penal Code, voluntarily causing a miscarriage is a punishable offence and is mentioned in Section 312 of the IPC.

The primary difference between abortion and miscarriage lies in the intent and causation. Abortion is a deliberate choice made by the pregnant woman or based on medical recommendations and is a planned termination, while miscarriage is an involuntary event caused by natural factors and is an unplanned loss of pregnancy. Now, the question arises, whether abortion is legal in India or not. To answer this, it can be said that abortion in India is governed under the MTP Act which provides the legal framework for abortion in India outlining the conditions, gestational limits, and procedures for lawful abortions; which is discussed in detail further in this article.

Abortion laws in India

Indian Penal Code (IPC)

Indian Penal Code contains certain provisions that criminalize abortions performed without the woman’s consent which are discussed as follows:

Section 312 of the IPC: This Section criminalizes ‘causing miscarriage’ and states that “Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving 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 be 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.”
Section 313 of the IPC: As per this provision of the IPC, anyone who commits the offence defined in Section 312 without the woman’s consent is punished with imprisonment for life or imprisonment that may extend to 10 years and a fine.
Section 314 of the IPC: If an individual does any act with an intent to cause the miscarriage of a woman with a child and results in the death of that woman is punished with imprisonment that may extend to 10 years and a fine. It also states that if the act is done without a woman’s consent then the offender is punished either with imprisonment for life or with imprisonment that may extend to 10 years and a fine.
Section 315 of the IPC: This Section deals with, ‘Act done with intent to prevent a child being born alive or to cause it to die after birth’ and states that “Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.”
Section 316 of the IPC: It states that if an individual does any act that causes the death of a pregnant woman would be guilty of culpable homicide. Moreover, if the act causes the death of a quick unborn child than the woman itself then the offender is punished with imprisonment that may extend to 10 years and a fine. The legal explanation for the same states, “Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

Constitutional provisions

The Constitutional provisions related to abortion mainly derive from the interpretation of the fundamental rights enshrined in the Constitution of India. While the Indian Constitution does not explicitly mention the right to abortion, certain fundamental rights have been interpreted by the judiciary in connection with reproductive rights and women’s healthcare. Article 21 of the Indian Constitution guarantees the right to life and personal liberty. The Supreme Court has interpreted this right expansively to include the right to reproductive autonomy and healthcare. On August 28, 2009, SC in Suchita Srivastava's case held that reproductive rights are an integral part of the right to life and personal liberty under Article 21. Now the question arises whether an unborn child is considered a person and has the right to life as per Article 21. The rights of the fetus are governed under Section 20 of the Hindu Succession Act, 1956, which illustrates that the fetus’s life should be protected from the moment of conception. Also, the unborn child should be addressed as born for all rights accorded within the limits established by law.

Moreover, Article 14 of the Constitution of India also highlights certain provisions regarding abortion. Article 14 guarantees the right to equality and prohibits discrimination. The right to equality has been interpreted to include gender equality, and the SC has emphasized the importance of ensuring equal access to healthcare services, including safe and legal abortion, for women.

Medical Termination of Pregnancy (MTP) Act, 1971

In India, the termination of pregnancy was considered taboo and illegal before 1970. In contrast, the same was allowed (under certain specific conditions) after the enactment of the Medical Termination of Pregnancy (MTP) Act, 1971. The main motive behind its enactment is to “provide for the termination of certain pregnancies by registered medical practitioners and matters connected therewith or incidental thereto.” The Act recognizes the reproductive rights of women and aims to protect their health while addressing the need for safe pregnancy termination under certain circumstances. Some of the key provisions of the MTP Act are mentioned as follows:

Important Definitions

Section 2 of the MTP Act defines important terms such as ‘guardian’, ‘medical board’, ‘mentally ill person’, ‘minor’, ‘registered medical practitioners’, and ‘termination of pregnancy’.

Specific conditions to terminate pregnancy when allowed

Section 3 of the MTP Act illustrates certain conditions, gestational limits, under which abortion is permitted by a registered medical practitioner in India.

A woman can seek an abortion without requiring any specific conditions or approvals during the first 12 weeks of pregnancy.
If the gestational age is between 12 and 20 weeks, the approval of two registered medical practitioners is required for abortion. After complete medical assessment and evaluation, they must concur that the continuation of the pregnancy would pose a risk to the pregnant woman’s life or cause grave injury to her physical or mental health. Also, the abortion can be done if the two registered practitioners ensure a substantial risk that if the baby is born then he/she would suffer from physical or mental abnormalities.
Section 3(4) of the Act states that “no pregnancy of a woman, who has not attained the age of eighteen years or who having attained the age of eighteen years is a mentally ill person, shall be terminated except with the consent in writing of her guardian or pregnant woman.”

As per the provision of this Act, A Medical Board is required to be constituted by every State Government or Union Territory to exercise such powers and functions. The Medical Board consists of a Gynaecologist, a Paediatrician, a Radiologist or Sonologist, and other members as notified in the Official Gazette by the State Government or Union Territory.

Authorized place where pregnancy can be terminated

Section 4 of the Act deals with the place where pregnancy may be terminated, “No termination of pregnancy shall be made in accordance with this Act at any place other than (a) a hospital established or maintained by Government, or (b) a place for the time being approved for the purpose of this Act by the Government.”

Non-applicability of Sections 3 and 4

Section 5 of the MTP Act highlights certain situations where Section 3 and Section 4 of the Act are not applicable. As per clause 1 of Section 5, the provisions of Sections 4 and 3(2) are not applicable in case the registered medical practitioners opined that the termination of pregnancy is immediately necessary to save the pregnant woman’s life. Also, it illustrates that it is a punishable offence if termination of pregnancy is performed by a person who is not a registered medical practitioner. The offender is punished with imprisonment for a term not less than 2 years but which may extend to 7 years. Moreover, this Section illustrates that if any person terminates a pregnancy at a place other than mentioned under Section 4 of the MTP Act and any person being the owner of the not approved place is punished with imprisonment for a term not less than 2 years but which may extend to 7 years.

Apart from this, Sections 6, 7, and 8 of the Act deal with the power to make rules, the power to make regulations, and the protection of action taken in good faith respectively.

Amendments to the MTP Act

The Medical Termination of Pregnancy (Amendment) Act, 2021 is a recent amendment to the MTP Act. It introduces several changes to the existing MTP Act, aiming to expand access to safe abortion services, enhance women’s reproductive rights, and address certain limitations and concerns in the previous legislation. Some key changes are mentioned as follows:

One significant change introduced by the Amendment Act is the extension of the gestational limit for abortion. It allows women to seek abortion up to 20 weeks with the opinion of one registered medical practitioner and beyond 20 weeks with the opinion of two registered medical practitioners, in certain specific circumstances.
In the failure of any pregnancy termination or contraceptive method or device, a married woman as well as an unmarried woman is allowed to terminate a pregnancy up to 20 weeks.
The termination of pregnancy up to 20 weeks of gestation is allowed on the opinion of one registered medical practitioner.
In the case of 20-24 weeks of gestation, the opinion of two registered medical practitioners is needed to terminate the pregnancy.
Termination of pregnancy after 24 weeks requires an opinion of the State-level medical board.
Increase in upper gestation limit, for special categories of women such as victims of incest, survivors of rape, and other vulnerable women, to 24 weeks.
It emphasizes the need to maintain the privacy and confidentiality of women seeking abortion, all records related to abortion including the identity of the woman should be kept confidential and not be disclosed without her consent, except as required by law.

Related Case Laws

Suchita Srivastava & Anr. vs. Chandigarh Administration (August 28, 2009)
Mumta Verma vs. Union of India and Ors. (August 09, 2017)
X vs. The Principal Secretary Health and Family Welfare Department & Anr. (July 21, 2022)
X vs. Union of India and Anr. (October 16, 2023)

Conclusion

Abortion laws in India are designed to protect women's reproductive rights, ensure their health and well-being, and address social inequalities. The MTP Act, along with relevant sections of the IPC, provides a legal framework for safe and regulated access to abortion services. By recognizing women's autonomy and providing them with reproductive choices, India strives to create an environment where women can make informed decisions regarding their pregnancies while prioritizing their health and well-being.