India, being one of the most populated countries of the world follows a strict procedure regarding the termination of pregnancies and the same needs to be done strictly in terms of the Medical Termination of Pregnancy Act or the MTP Act. The preamble of the MTP Act states that it is an “Act to provide for the termination of certain pregnancies by registered medical practitioners and matters connected therewith or incidental thereto.” The MTP Act also specifies the requirements to be fulfilled for terminating a pregnancy, including the persons who are competent to perform the termination procedure, circumstances when abortion is permissible, and places where the procedure may be performed. Section 3 of The Act further provides that any registered medical practitioners shall not be guilty of committing any offence under the Indian Penal Code 1860 or under any other law for the time being in force if they terminate pregnancies in accordance with the MTP Act. Pregnancies as per The Act may be terminated where they do not exceed twenty weeks and for certain categories of women where they do not exceed twenty-four weeks if the Medical Practitioner is of the opinion that:
1. The continuance of the pregnancy would put the pregnant woman’s life at risk;
2. The continuance of the pregnancy would involve grave danger to the pregnant woman’s physical health ;
3. The continuance of the pregnancy would involve grave danger to the pregnant woman’s mental health; or
4. There is a substantial risk that the child would suffer from a serious physical or mental abnormality, if it is born.
Further, in determining whether the continuation of the pregnancy would involve grave danger to the pregnant woman’s physical or mental health, her actual or reasonably foreseeable environment may be taken into account. The Act also states that pregnancies which occur due to the failure of a contraceptive device or method used by a woman or her partner and those that occur due to a scenario wherein a woman alleges that the said pregnancy was caused as a consequence of rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to her mental health.
The Act is detailed enough to provide that Pregnancies may be terminated only in a hospital established or maintained by the government, or any place approved for the MTP Act either by the government or by a District Level Committee. The MTP Act also seeks to protect the privacy of a woman who has terminated a pregnancy – “any Registered Medical Practitioner who reveals the name or other particulars of such a woman shall be liable to be sentenced to imprisonment which may extend to one year, or with fine, or both.”
Even though mammoth efforts are being made in this field, various barriers prevent full access to safe and legal abortions, pushing women to avail of clandestine, unsafe abortions. These barriers include insufficient infrastructural facilities, a lack of awareness, social stigma, and failure to ensure confidential care. In some situations, unmarried women face particular barriers due to gender stereotypes about women’s sexual autonomy outside marriage. These barriers are a serious impediment and deter single women from seeking safe and legal abortions. Such barriers may contribute to a delay in accessing abortion services or a complete denial of such services, consequently negating women’s right to reproductive autonomy.
Currently, under The Act, the opinion of the Registered Medical Practitioner is decisive and this makes it a provider-centric law as a woman’s right to access safe and legal abortion is dependent on the approval granted by the Medical Practitioner who is further bogged down by the fear of prosecution under this complex labyrinth of laws, including linking of the MTP Act with the IPC. Even though it is only the woman’s consent (or her guardian’s consent if she is minor or mentally ill) is material as per The Act, a Medical Practitioner usually ends up imposing extra-legal conditions on women seeking to terminate their pregnancy in an attempt to be over-cautious. His decision to provide medical termination of a pregnancy is also influenced by the social stigma surrounding unmarried women and pre-marital sex, gender stereotypes about women taking on the mantle of motherhood, and the role of women in society. What a Medical Practitioner actually needs is only to ensure that the provisions of the MTP Act (along with the accompanying rules and regulations) are complied with.
Then there is also a widespread misconception that termination of pregnancies of unmarried women is illegal due to which a woman and her partner many a times resort to availing of abortions by unlicensed medical practitioners in facilities not adequately equipped for such medical procedures, leading to a heightened risk of complications and maternal mortality. The social stigma that women face for engaging in pre-marital sexual relations prevents them from realizing their right to reproductive health in a variety of ways. They have insufficient or no access to knowledge about their own bodies due to a lack of sexual health education, their access to contraceptives is limited, and they are frequently unable to approach healthcare providers and consult them with respect to their reproductive health. Consequently, unmarried and single women face additional obstacles. Thus, in a recent landmark judgment of X v. Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, the Supreme Court ruled that there should be no discrimination between married and unmarried women seeking abortions within the 20-24 week duration of a consensual relationship. In addition, the Supreme Court held that all women have the right to safe and legal abortion and that the distinction between married and unmarried women would be unconstitutional.
The social stigma surrounding single women who are pregnant is even greater and they often lack support from their family or partner. This leads to the proliferation of persons not qualified/certified to practice medicine. Such persons offer the possibility of a discreet abortion and many women may feel compelled by their circumstances to engage the services of such persons instead of opting for a medically safe abortion.
Over the years, the Parliament has enacted legislation bringing about congruence between the rights of married and unmarried women. Through various enactments, the law has emphasized that unmarried women have the same rights as married women in terms of adoption, succession, and maternity benefits. Importantly, these legislations also signify that both married and unmarried women have equal decisional autonomy to make significant choices regarding their own welfare.
In the evolution of the law towards a gender-equal society, the interpretation of the MTP Act and MTP Rules must also consider the social realities of today and not be restricted by societal norms of an age which has passed into the archives of history. As society changes and evolves, so must our mores and conventions. A changed social context demands a readjustment of our laws. Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice.
Prior to the enactment of the MTP Act, the medical termination of pregnancy was governed by the IPC. In fact, before 1971, the criminalization of abortion under the IPC often compelled women to seek unsafe, unhygienic and unregulated abortions, leading to an increase in maternal morbidity and mortality. It was in this background, that the Medical Termination of Pregnancy Bill was drafted and introduced in the Rajya Sabha on 17 November 1969. On 2 August 1971, the MTP Bill was introduced in the Lok Sabha with the intent to “liberalise some of the restrictions under section 312 of the IPC.” The MTP Act was enacted by Parliament as a “health” measure, “humanitarian” measure and “eugenic” measure. The whole tenor of the MTP Act is to provide access to safe and legal medical abortions to women. The MTP Act is primarily beneficial legislation, meant to enable women to access services for the medical termination of pregnancies provided by a Registered Medical Practitioner. The MTP Amendment Act 2021, which came into force on 24th September 2021, introduced a major change in Section 3 of the MTP Act by extending the upper limit for permissible termination of pregnancy from twenty weeks to twenty-four weeks. The MTP Amendment Act 2021 also extended the benefit of the legal presumption of a grave injury to the mental health of a woman on account of the failure of contraception, to all women and not just married women.
However, despite the enactment of the MTP Act in 1971, unsafe abortions continue to be the third leading cause of maternal mortality, and close to eight women in India die each day due to causes related to unsafe abortions. A woman is often influenced by complex notions of family, community, religion, and caste which affect the way she exercises autonomy and control over her body, particularly in matters relating to reproductive decisions. Societal factors often find reinforcement by way of legal barriers restricting a woman’s right to access abortion. The decision to have or not to have an abortion is borne out of complicated life circumstances, which only the woman can choose on her own terms without external interference or influence. Reproductive autonomy requires that every pregnant woman has the intrinsic right to choose whether to undergo or not to undergo an abortion without any consent or authorization from a third party. In the historic Puttaswamy judgement passed by the Apex court of the country, Justice Chalmeshwar had held that- “woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.” The court had also held that – “the statutory right of a woman to undergo termination of pregnancy under the MTP Act is relatable to the constitutional right to make reproductive choices under Article 21 of the Constitution.”
Keeping all that has been said in the correct perspective, care needs to be taken that the reproductive rights of women are harmonised in light of the principles laid down under the Constitution as well as the principles of international law codified in the various international conventions ratified by India. Our interpretation of the MTP Act and the MTP Rules furthers India’s obligations under international law. However, the government must act proactively in order to ensure that women in India are able to actualize their right to reproductive health and healthcare, in line with the obligations assumed by the country under international law.