It is Time to Overhaul India's Restrictive Abortion Law

The Medical Termination of Pregnancy Act, 1971 needs to be amended to better address the varying concerns of Indian women – be they rape survivors, married women or sexually active single women.

Recently, the Supreme Court permitted a rape survivor to terminate her pregnancy at 24 weeks, which is beyond the permissible 20 weeks limit prescribed under the Medical Termination of Pregnancy Act, 1971. Their grounds were that continuing the pregnancy could greatly endanger her physical and mental health. In this instance, the Supreme Court directed the members of the appointed medical board to examine the petitioner and the viability of the pregnancy. The board found that the foetus had multiple congenital anomalies and the severity of these anomalies posed a grave risk to the physical and mental health of the petitioner. Therefore, the medical board recommended that the petitioner be allowed to not continue the pregnancy. Based on these recommendations, the Supreme Court granted the petitioner permission to terminate her pregnancy.

Previous cases

This is not the first time that the Supreme Court has permitted a woman to abort a foetus older than 20 weeks. In 2015, the apex court overturned a decision by the Gujarat high court in a similar case. The Gujarat high court had denied permission to a 14-year-old rape survivor to abort her 25-week old foetus. Interestingly, while delivering its verdict, the high court acknowledged the adverse physical, emotional and psychological implications of the decision on the petitioner’s life, but ultimately chose to subscribe to the law. The girl then approached the Supreme Court, which recommended that a medical panel examine the girl and decide whether the termination of pregnancy was in her best interests; if the panel was in favour of the abortion, then the girl could go ahead with the termination.

In 2008, the Bombay high court denied a woman, whose foetus had been diagnosed with a congenital heart defect, permission to abort her 26-week foetus. The petitioners argued against the constitutionality of section 5 of the MTP Act – which permits abortion beyond 20 weeks only if it is necessary to save the life of the pregnant woman. The petitioners argued that since the 20-week law includes a provision to terminate a pregnancy if a foetus has severe abnormalities, the same provision should apply if the foetus is over 20-weeks old. However, the high court rejected this argument and held that it was not empowered to read down section 5 as it would virtually amount to usurping the power of the legislature. Therefore, on a plain and strict reading of the MTP Act, the court held that abortion on the ground of severe abnormalities of the foetus was only permissible within 20 weeks. As there was no risk to the life of the pregnant woman, the court denied the petitioners the right to abort the foetus.

Similarly, in 2015, the Punjab and Haryana high court denied a 13-year-old rape survivor permission to terminate her 25-26 week old foetus. More recently in R v Haryana, the Punjab and Haryana high court did not grant the petitioner, also a rape survivor, permission to terminate her pregnancy as the commissioned medical report did not agree to an abortion. However, by way of abundant caution, the court requested doctors from AIIMS, the premier medical institution in the country, to reassess the possibility of terminating the pregnancy. The doctors were instructed to take the decision in good faith and in the best interest of the petitioner. However, the petitioner delivered a healthy baby over the course of these lengthy proceedings. Interestingly, the court also directed the Centre to make necessary amendments to the MTP Act – to clearly stipulate that doctors will not be unnecessarily prosecuted if they act in good faith to save a rape survivor’s life or to prevent grave injury to the women’s physical and mental health.

Evolution of the MTP Act

To understand the issues surrounding abortion in India, it is necessary to contextualise the evolution of the MTP Act, which liberalised abortion laws in India. The MTP was enacted two years before the landmark judgement of the US Supreme Court in Roe v Wade – which held that laws which criminalise all abortions, except those required to save a mother’s life, were unconstitutional and violated the right to privacy of a pregnant woman. But this right should be balanced against the right of the state’s legitimate interest in protecting both the pregnant woman’s health and the potentiality of human life at various stages of pregnancy. 

Before the  MTP Act was passed in 1971, abortion under any circumstances, except danger to a pregnant woman’s life, was illegal in India. Section 312 of the Indian Penal Code (IPC) provides 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”.

The MTP Act overrides the IPC by allowing a woman to get an abortion within the first 12 weeks of pregnancy, provided a registered medical practitioner diagnoses grave danger to the pregnant woman’s physical and mental health. If the foetus is between 12 and 20 weeks old, then the procedure requires permission from two medical practitioners. The Act also allows abortion if the foetus will be born with severe abnormalities.

To determine the risk of physical and mental harm to a pregnant woman seeking abortion, the Act takes into account the woman’s actual as well as reasonably foreseeable environment. It also defines circumstances which can constitute grave injury to the mental health of a woman. The mentally grievous situations include pregnancy resulting from rape as well as contraceptive failure – of any contraception used by a married woman or her husband – if a married couple is attempting to limit their number of children. Abortion beyond 20 weeks is also legal if a registered medical practitioner, in good faith, thinks that emergency termination is necessary to save a pregnant woman’s life.

The Act does not mention anything about a woman’s right to terminate a pregnancy beyond 20 weeks if there are foetal abnormalities. Additionally, the MTP Act as it currently stands also does not permit abortion solely on the request of a woman. One important reason for this is to prevent and reduce the instances of female foeticide in the country. However, it is important to analyse and study whether the law has had the desired impact on female foeticide, especially in light of the Pre-Natal Diagnostic Techniques (Regulation and Misuse) Act, 1994 which prohibits sex-selection and prescribes strict punishment for both – the party seeking prenatal sex determination as well as the medical practitioner conducting the test.

Proposed amendments to the MTP Act

Evidently, there are divergent and conflicting case laws when it comes to the issue aborting a foetus beyond the stipulated 20-week period. There is also the important issue of a woman’s right to her body, as it is limited under the current laws.

The Ministry of Health and Family Welfare proposed some amendments to the MTP in October 2014 which addressed these issues to a limited extent. One of the draft amendments proposed to increase the time period within which abortion may be carried out from 20 weeks to 24 weeks. Recognising a woman’s agency over her body, the draft amendments have proposed that within the first 12 weeks, an abortion may be carried out by a registered doctor at the request of a pregnant woman, without the opinion of a registered doctor. Another amendment stated that aborting a foetus between 12 and 24 weeks, if a medical practitioner deems it necessary, should be conducted on the same grounds as provided under the current MTP Act.  The draft amendment also permitted abortion beyond the stipulated 24 weeks, in case the foetus suffers from substantial foetal abnormalities.

Notably, the amendment also recognises the growing reality of sexually active single unmarried women and provides that single woman can seek an abortion within the stipulated time period if it can be established that the pregnancy was unplanned and a result of contraceptive failure. The current MTP Act only accounts for sexually active married women.

If the draft amendments had been incorporated into the Act, then the petitioner in the recent Supreme Court case as well as many other women could have been saved the mental and physical anguish of knocking on different courts’ doors.

The decision to terminate a pregnancy is never an easy or mechanical decision and it takes a severe toll on the affected parties, especially the woman. There is a need to strike a balance between the rights of women to control their bodies and the legitimate interests of the state to prevent selective sex determination as well as protect the interests of the woman and the unborn foetus. The draft amendments offer a definitive step in the right direction.