The 'right' to abortion in India

In India, the Medical Termination of Pregnancy Act 1971 (MTP Act) read with MTP Rules 2003 govern the right to terminate pregnancy. India ranks high in the list of countries where abortion is legal & permitted till 24 weeks of pregnancy (even beyond sometimes). Under the MTP however, abortion is available as a permissive right i.e., subject to opinion of a medical practitioner and of the woman’s choice only. This is because the focus of the legislature in 1971 was to ensure safe abortions to prevent maternal morbidity & not to encapsulate a right based provision. 40 years hence, two major developments, namely, the 2021 Amendment to MTP & its interpretation by the Supreme Court in X v. Principal Secretary, Health & Family Welfare (2022) have shifted the focus from a permissive right and crystallised abortion as every woman’s right inherent in her autonomy and dignity.

MTP Act & Rules: permissive

Under the MTP, pregnancy can be terminated only with the consent of the woman [Section 3(3)(b)]. Termination is however subject to the good faith opinion of one registered medical practitioner for pregnancies not exceeding 20 weeks and of two registered medical practitioners for pregnancies between 20 and 24 weeks, that continuation of pregnancy would (i) put the woman’s life at risk, (ii) involve danger to her physical health, (iii) involve danger to her mental health or (iv) involve a substantial risk for the child to suffer an abnormality [amended Section 3]. MTP Rules restrict the category of women who seek termination between 20-24 weeks to survivors of sexual assault, minors, mentally ill women, disabled women etc [Rule 3-B]. The limitation of 24 weeks does not apply in case of foetal abnormalities. Further, law presumes that mental injury shall be caused to a woman who has been raped or assaulted & may be caused to a woman from failure of contraception, but the decision-making is retained by the medical practitioner. This is evinced by several petitions filed before the Court seeking termination within 20 weeks where the medical practitioner has declined for non-medical reasons. Termination of pregnancy is thus permissive i.e., subject to consent of a medical practitioner.  

Irrespective of marital status

An important legislative change was made in 2021 which extended the period for seeking termination from 20 to 24 weeks & expanded the presumption of mental injury. Prior to the amendment, law presumed that mental health of a woman would harm if pregnancy is a result of failure of contraception used by a married woman and her husband (Explanation II, Section 3(2)). The amendment replaced this with any woman or her partner. Though pre-marital sex gained legal recognition in Khusboo v. Kanniammal in 2009, a failure of contraception before marriage was legislatively accounted only in 2021.

In X v. Principal Secretary, SC acknowledged this and interpreted it to mean that expanded scope of Section 3 includes all pregnancies even outside marriage. Failure of contraception between a woman and her partner (in any relationship) would create a presumption of mental harm in her favour. Taking cue from the object & purpose of the amendment, SC categorically held that intention of the Parliament was to entitle all women to safe abortions, irrespective of their marital status. Court also reflected on other legislations, especially the Maternity Benefit Act, which entitled all women to maternity benefit regardless of whether benefit was sought in or outside marriage. The choice of an unmarried woman on whether to bear a child or not was thus on an equal footing as that of a married woman. A denial of such right would violate equal protection under Article 14 of the Constitution. Thus, women who are single, married, or unmarried, in any relationship whether marriage, live-in, atypical or none are entitled to terminate pregnancy under MTP.

Injury to mental health

Another positive change made judicially is the interpretation given to mental health of a woman. Mental health is interpreted to mean more than absence of mental illness. It includes mental well-being which makes people realise their abilities to the fullest. The consequences of unwanted pregnancy must be understood in the context that childbearing and childrearing have long term social, financial, familial & situational implications, besides being emotionally and physically taxing for the woman. It is imperative that a woman’s inability to carry a child to term due to any factor, illustratively, change in the status of her relationship, unplanned pregnancy, caused by rape in marriage or outside etc, must be accounted for. This can be done by a medical practitioner under Section 3(3) where he is required to consider a woman’s actual or reasonably foreseeable environment to determine mental or physical injury. In the absence of such consideration, forced pregnancy is bound to affect her mental well-being and violate her right to autonomy & bodily integrity under Article 21.

Autonomy & dignity

Last, the Court’s interpretation of reproductive choice is a strong indicator that abortion has transcended from a merely permissive right under MTP to a choice based right.

The right to reproductive choice as inherent in every individual has been consistently held to be a part of Article 21. Taking this further, in X v. Principal Secretary, Court held that “The decision to carry pregnancy to its full term or terminate it is rooted in the right to bodily and decisional autonomy of the pregnant woman”. Whether to procreate or not is thus central to reproductive choice & is the choice of the woman alone, to be exercised without undue State interference. It is also rooted in her dignity which requires to treat her as an individual with intrinsic value of her own, having the ability to take her decisions. This is equally applicable to minor girls who may terminate pregnancy with the consent of their guardian. Compelling a woman to continue an unwanted pregnancy would be an invasion of her bodily integrity, autonomy, and dignity. Termination under the MTP Act & Rules thus ought to be governed by these overarching rights, rather than being treated as a permissive right which is subject to the decision & assessment of a medical practitioner.

With this, the right to abortion in India can be encapsulated as: The right of every woman to terminate pregnancy within 20 weeks, irrespective of her age and marital status, if continuation of such pregnancy affects her mental or physical health. It remains to be seen if this is implemented in its true spirit.