Why Indian Laws Need More Reforms To Provide Safe Abortions

On August 5, 2022, a Supreme Cou­rt bench consisting of Justices D.Y. Chandrachud and J.B. Par­d­i­wala permitted a 25-year-old unmarried woman to medically terminate her 24-week-old pregnancy resulting from a consensual relationship. Justice Chan­d­r­achud noted the legal framework that restricts unmarried women (vis-à-vis mar­ried women) from medically termina­ting their pregnancies, and stated that both married and unmarried women suffer the same mental anguish with respect to a pregnancy that is older than the gestational period of 20 weeks. In granting her permission to abort, the court recognised the need to “move ahead” from restrictive legal provisions that preclude unmarried women from obtaining abortions after 20 weeks of gestation.

Legal abortion allows pregnant persons to exercise their decisional autonomy. This is under attack globally. The June 24, 2022, decision of the US Supreme Court in the case of Dobbs v. Jackson Women’s Health Organization, overturned 1973’s Roe v. Wade, which guaranteed abortion as a protected right. The court held that the US Constitution does not confer a right to abort­ion and that the people and their ele­c­ted representatives (i.e., the legislature) sho­uld have the authority to regulate abortions. The cou­rt’s finding that the right to abortion is not entrenched in one’s right to autonomy, flies in the face of reproductive rights. Mean­while, Indian courts have frequently interve­ned to protect reproductive rights. For ins­t­a­nce, the Supreme Court in Puttaswamy vs. Union of Ind­ia (2017), held that access to reproductive rights is recognised as being part of personal liberty, under Article 21 of the Indian Constitution.

Over the decades, Indian activists have pointed out that the 1971 Medical Termina­t­ion of Pregnancy Act (MTP Act) is a doctor-cen­tric law, which grants discretion to med­i­cal professionals in allowing or denying abortions, without paying regard to pregnant persons. Recent legal reform in this sphere has only reinforced the doctor-centric fra­m­e­work around abortion.

The recent legal reform occurred during the pandemic, between March 2020 and Mar­ch 2021, when the Ministry of Health and Family Welfare introduced amendments to the MTP Act. The new law made signific­ant yet inadequate changes to the MTP Act, allowing termination of pregnancy for all women, regardless of marital status. The max­imum gestational period for abortions was raised from 20 to 24 weeks for certain categories of pregnant women as provided in the MTP Rules, including survivors of rape, incest, minors, women who experience cha­nge of marital status during their pregnancy (widowhood or divorce), women with disabilities and those in emergency, disaster or humanitarian crises. Consistent with the ers­­t­while MTP Act, pregnant persons would have to obtain permission from one registe­red medical practitioner to obtain abortions for up to 20 weeks’ gestation, and two medical practitioners between 20 and 24 weeks, if they are from the above categories of people. The new law mandates medical boards in eve­ry state and Union Territory to diagnose foetal ‘abnormalities’ necessitating terminat­ion of pregnancy. Although medical termination of pregnancy is typically permitted up to 24 weeks, the amended law removed the upp­er gestation limit for ‘foetal abnormalities’. This amended provision, which also requires medical boards (to be set up in every state and UT) to permit the termination, is framed from a eugenics perspective that deems persons with disabilities as undesirable.

Also, the more the legislation uses the term “woman”, the more it excludes access to abo­rtion for persons other than cis-gender wom­en. This exclusionary language restricts abo­r­tion access to trans-men and gender-va­r­iant persons. In spite of the Supreme Cou­rt’s recognition of the right to self-dete­rmi­nation in 2014, and the anti-dis­criminat­ion legislation in 2019, trans- and gender-­vari­ant persons still face challenges accessing medical care in public and private healthcare settings.

More broadly, legal reforms without adequ­ate social structures to provide pregnant persons with the capacity to access abortion are inadequate. Recent legal reforms fail to make abortion available ‘at will’ without the criminalisation framework. The unavailability of medical abortion pills in several states, coup­led with the requirement of third-party aut­h­orisation for abortions, and shortages in med­ical professionals—especially in remote areas—results in pregnant persons finding it virtually impossible to access safe abortions. Further, a 2019 study, titled Unsafe Abortion and Abortion-related Death Among 1.8 Mill­ion Women in India, showed that Muslims and Christians were associated with increa­sed odds of unsafe abortion, compared with Hin­dus. Dalit, Adivasi and women in rural sett­ings were also 26 per cent more likely to res­ort to unsafe abortions. Bureaucracy and poverty create disproportionate barriers to accessing safe abortions, particularly for rur­al Dalit and Adivasi women, similar to the experiences of Black, indigenous and people of colour in USA.

The discourse around abortion for marginalised groups in India needs to transcend the choice and individualistic framework, which does not afford reproductive choice to all pre­gnant persons, but only to those who can afford them or are deemed “legitimate choice makers”. While the law allows for legal access to abortion, access to safe abortion continues to be a challenge. Further, the MTP Act mer­ely lays out exceptions to the criminalising prov­i­sions of the Indian Penal Code (IPC). The person undertaking the abortion, as well as the medical practitioner facilitating it, are liable to be prosecuted if conditions under the MTP Act are not met.

Therefore, while socio-economic and medical structural barriers continue to pose challenges, criminalisation of abortion through a restrictive legal framework creates a chilling effect on the willingness of medical practitioners to perform even routine and legal abortions, eliminating access to safe abortions. Such criminalisation forces pregnant persons to access back-alley illegal abortions, which are undertaken without any monitoring or accountability, as well as with lower (or no) standards of medical care. Further, continued criminalisation of abortion also perpetuates and sustains social stigma around the procedure, which then plays a definitive role in pregnant persons’ decisions on whether to opt for legal or illegal abortions and whether to disclose that they are having abortions.

The criminalisation of abortion also has dispr­oportionate effects on the reproductive aut­on­omy of Dalit, Bahujan and Adivasi people, who already experience reduced access to hea­lthcare services on account of poor rea­­ch of public hea­l­thcare, as well as inherent caste discrimination in existing facilities. According to Harvard Uni­versity fellow Suraj Yengde, Dalit, Bahujan and Adivasi peo­ple face ‘triple discri­m­ination’ based on their caste, gender and soc­io-economic status. In their 2018 pap­er on Sch­eduled Caste women in Bihar, Parisa Patel, Mahua Das and Utpal Das have highligh­ted how cas­te is a definitive factor in maternal hea­lth out­comes generally, and access to leg­al abo­r­tions, specifically. In light of amendm­ents to the MTP Act that ref­lect a eugenics rationale, it is particularly imp­ortant to consider the apprehensions that Dal­it, Adiv­asi, trans people, or people with dis­abilities mig­ht have when advocating for access to safe abo­r­tion. Histori­ca­lly, marginalised groups have not been able to make legitimate cho­i­ces. Thus, it is essential to focus on access on the ground to navigate structural barriers.

There must be an emphasis on centring the autonomy of pregnant persons in any aborti­on-related policy/law, ensuring that such a policy is inclusive of, for example, tra­nsgen­der and gender-diverse persons, rather than only considering cis women as legitim­ate recipients of abortions. Further, the challenges and experiences of pregnant persons located at different caste and socioeconomic locations that translate into tangible health outcomes show that reproductive justice is a social justice issue.

Therefore, the reproduct­ive rights of the marginalised individuals and groups in India can only be ensured by ado­p­t­ing a comprehensive reproductive justice lens, recognising the adverse impacts of cas­te, class, indigeneity, ability gender and sexual identity challenges. Social, economic, and political factors of the marginalised individuals and groups must be considered while adv­ocating for reproductive and gender justice, to ensure an intersectional approach. The grave implications of criminalising abortions on the reproductive rights of pregnant pers­ons call for entirely decriminalising abortion services—replacing the current system with an anti-caste, anti-carceral gender justice framework that allows for abortion at the will of all pregnant persons.

(This appeared in the print edition as "Reproductive Justice is a Social Justice Issue")

(Views expressed are personal)

Dipika Jain is professor of Law & Vice Dean (Research; Clinical Legal Education) & Director, Centre for Justice, Law and Society at Jindal Global Law School