A Study of Women’s Right to Abort under the Indian Legal Framework

CHAPTER 1 – INTRODUCTION

National Law Institute University Page 1

 A Study of Women’s Right to Abort under the Indian Legal Framework

India is a country with many taboos, especially for women. Sex, pregnancy and abortion are still
not discussed in open without concerns about societal judgment. Making it only fair for Indian
women to opt for secret or backstreet abortions rather than choosing the legitimate route for it.
But not just that, it is also the fact that the legal regime providing for abortion is both
cumbersome and tedious for the mothers wanting to abort.

This research revolves around the current status of women’s reproductive rights, more
specifically their right to abort and how it can be improved to ensure better sexual health of
Indian women. Exercise of this right in the cases of rape victims shall be examined under a
special lens.

The abortion process in India is guided by the provisions of The Medical Termination of
Pregnancy Act, 1971. The Medical Termination of Pregnancy Act (hereinafter referred to as
‘MTPA’) prevailing even today was enacted in the year 1971 and can be correctly termed as
archaic in today’s context.

The legal meaning of abortion refers to the process of induced abortion. Induced abortion is
untimely delivery that is voluntarily procured with intent to destroy the fetus. It may be procured
at any time before the natural birth of the child. However, in medical terminology abortion
means untimely delivery of a child before it is viable. A child is considered as viable from the
twenty eighth week of pregnancy.

The demands for amendment in the MTPA were raised for the first time after the infamous
Nikhil Datar v. Union of India1 case wherein a couple had sought to abort a 24 weeks old fetus
upon discovering that fetus had a serious health condition but the couple’s plea was refused as it
was in violation of MTPA and posed potential health risks to the mother. The petitioner legally
had no option but to continue her pregnancy as the provisions of Indian Penal Code, 1860 make
voluntary miscarriage caused by any person an offence if not done in good faith 2, including the
mother herself. Hence, once the termination is beyond permissible time limit under MTPA and

1
SLP (C) 5334 of 2009.

2
Indian Penal Code, Section 52. “Good faith” - Nothing is said to be done or believed in “good faith” which is done
or believed without due care and attention.

National Law Institute University Page 2

 A Study of Women’s Right to Abort under the Indian Legal Framework

not in accordance with the formal procedure laid down in the Act, the abortion will as a matter of
course become a criminal offence.

The Centre is considering amendment to the MTP Act, and a draft Bill has been in the public
domain since 2014, inviting comments from the public. But since it has not been passed by both
the Houses, it is the Supreme Court acting as the deciding body in individual pleas of abortion.

The provisions of MTPA were called in question most recently in the case of Alakh Alok
Srivastava v. Union of India & Ors3., wherein the Supreme Court rejected plea of a 10 years old
rape victim to abort a 30 weeks old fetus. It was contended that, in this and every case of
abortion a lot of time lapses in the process to obtain approval of the competent authorities,
making the case exceed the legally permissible time window for abortion.

Children’s rights groups in India have also called for a safe termination of pregnancy for this
child, and described previous instances of what happens after a refusal of abortion in cases like
this, which include families seeking unsafe abortions with all the consequences that arise. They
have also raised concerns about the future of any babies born from such pregnancies, who they
report may be sold off, placed in poorly equipped institutions, given back to the child mother
with no support whatsoever, or worse.

The primary reason for restricting legally permissible abortion window limit to 12 weeks and in
odd cases upto 20 weeks only is the health of mothers along with the viability of the fetus.
However, very little data and research exist in the medical domain that confirms the above-
stated. Even the medical professionals are not in a position to make specific clinical
recommendations, as they lack crucial information about the girl’s prior health, her exact
gestational age and fetal size, her pelvic size and development, the risks of cesarean delivery in
her setting, anesthetic and pain management options available, among other details. However, it
is unlikely that medical termination of pregnancy poses more risk than ongoing pregnancy and
term delivery, and in fact the converse may be true.

Many countries have removed abortion from their Penal Codes up to 12 weeks of pregnancy and
the woman no longer has to show she was “in distress” due to her pregnancy. Also, the

3
Writ Petition (Civil) No(s). 565/2017.

National Law Institute University Page 3

 A Study of Women’s Right to Abort under the Indian Legal Framework

reimbursement of abortion costs along with removing barrier of prior 'approval' by competent
authority is being included for promoting legal abortions amongst women.

Also, there is no express provision to protect the anonymity of adult women choosing to undergo
the abortion procedure. the legislature in the recently enacted The Human Immunodeficiency
Virus And Acquired Immune Deficiency Syndrome (Prevention And Control) Act, 2017 has
gone that one step further to ensure that the persons suffering from HIV are not compelled to
disclose their HIV related information to anyone and that the hospitals at which they are
receiving treatments cannot disclose the same to any other person. Similar protection can be
provided even in the cases of women undergoing abortion process under MTPA (an amendment
can be made to that effect to the MTPA).

The right to privacy and right to live is dignity are inexplicable part of Article 21 of Indian
Constitution. The right to privacy of a woman implies some duties to the government for non
interference in her private or personal matters, which includes the right to make decisions for her
own child's future.

The U.S has introduced The Freedom of Choice Act (FOCA) which declares the policy of the
United States that “every woman has the fundamental right to choose to bear a child, to terminate
a pregnancy prior to fetal viability, or to terminate a pregnancy after fetal viability when
necessary to protect the life or health of the woman." The Act further says that the government is
prohibited to interfere in her right to choose pregnancy.

The ultimate goal of the Act was to remove the substantive obstacles against the right to privacy
and liberty of the women. The U.S Supreme Court in Roe v. Wade held that right to privacy
extends to a woman's decision to have an abortion. So, the abolition of abortion is violation of
right to privacy of women.

Speaking of right to live with dignity, in the case of rape or incest, a woman is forced to carry
pregnancy as a result of such a violent act, which would cause further psychological harm and
clear violation of her right to dignity and right to health. Often a woman is too afraid to speak up
or is unaware she is pregnant, thus the morning after pill is ineffective in these situations. It will
violate her right to dignity if government prohibits abortion. If abortion is banned, or just more

National Law Institute University Page 4

 A Study of Women’s Right to Abort under the Indian Legal Framework

restricted, we would return to the days of 'back-street abortions'. That is the woman will be
forced to resort the unhygienic and wild non-medical practices. These procedures obviously
cause risks to women’s health.

The ability of a woman to have control of her body is critical to civil rights. Take away her
reproductive choice is an utter violation of her right to life.

Each woman has bodily sovereignty, which is she has the duly qualified right to decide matters
regarding her body. No one should intrude in her affairs against her will. The right to choose
pregnancy is only up to that woman and the government and others only have a duty to take care
her rights.

However, there is still a camp that supports the right of fetus to live after it is viable. This view in
most of the cases is pitted against the interests of the going to be mother. The pro-life and pro-
choice movements primarily come into conflict on the issue of abortion. The pro-life movement
argues that even a non-viable, undeveloped human life is sacred and must be protected by the
government. Abortion must not be legal according to this model, nor should it be practiced on an
illegal basis. The pro-choice movement argues that in pregnancies prior to the point of viability –
a point at which the fetus cannot live outside the womb –the government does not have the right
to impede a woman's decision to terminate the pregnancy.

According to Dworkin, a fetus has no interest before the third trimester. Nothing can have
interest without having some form of consciousness. A fetus cannot feel pain until late in
pregnancy, because its brain is not sufficiently developed before then. The scientists have agreed
that fetal brain will be sufficiently developed to feel pain from approximately the twenty sixth
week. Thus, whether abortion is against the interest of a fetus must depend on whether the fetus
itself has interests, not on whether interests will develop if no abortion takes place. Something
that is not alive does not have interests. Also, just because something can develop into a person
does not mean it has interests either. Once a fetus can live on its own it may have interests. This
is only after the third trimester. 

National Law Institute University Page 5

 A Study of Women’s Right to Abort under the Indian Legal Framework

REVIEW OF LITERATURE
Books

Gender and law: Theory, Doctrine, Commentary includes different conceptualizations of

equality and justice and their impact on concrete legal problems. The author has also reviewed
include formal equality, substantive equality. The book covers conventional “women and the
law” issues, including employment law and affirmative action, reproductive rights, LGBT issues,
domestic violence, international women’s rights, global trafficking, and poverty and race.
Showing the complex ways in which gender permeates the law. Excerpted legal cases, statutes,
and law review articles form an ongoing dialogue within the book to stimulate thought and
discussion. This book has been included in the study because it discusses various aspects of
present research work, like, the developments in the law and politics of abortion and
reproduction, selective abortions, "personhood" initiatives, gender equity under healthcare
reform, advances in reproductive technology.

Feminist Perspectives on Health Care Law collects the work of exponents in the health care
arena, presenting new insights which draw on feminist theory and methodology to further
understanding of health care law while making a contribution to ongoing feminist debates and
the analysis of this area of law.

Its focus is not merely on those issues which have traditionally excited feminist attention, but
also includes those subjects which have proved of less apparent interest such as confidentiality,
medical research, medical negligence and professional discipline. This book reappraises the
liberal concept of autonomy and body ownership as the basis for rights in the body by providing
an enriched discourse. It stresses on how individuals may hold certain, limited rights in their
bodies, justifiable in terms of the principles of liberal autonomy. It briefly encapsulates the
‘traditional’ response of law to the controversies stemming from the issue of bodily autonomy.

Law and Gender is a collection of articles from Indian forerunners in the feminist debate. The
article ‘Women’s Right to Abortion vis-à-vis Right of Unborn Foetus: Human Rights
Perspective’ by one of the authors discusses the typical situation that India faces, as far as
abortion is concerned. Even though the MTPA which allows abortion in certain circumstances

National Law Institute University Page 6

 A Study of Women’s Right to Abort under the Indian Legal Framework

has existed for more than four decades, certified and legal abortion facilities account for only a
quarter of all such private facilities in the country. There is a rampant illegal abortion practiced
in India. Neither the public nor private abortion services have fully measured up to the needs of
the abortion seekers. However, the modern Indian women are more vocal about their right to
decide whether she would like to continue her pregnancy or to terminate it. Presently there is a
pertinent need to answer the question whether abortion should be further legalized or not.

Articles

Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom is a

philosophical inquiry that centers on a specific set of moral and political puzzles. The article
explores the most dreadful of decisions. By showing how people's beliefs about such decisions,
across the ideological spectrum, turn on competing, complex ideas about what gives each human
life intrinsic value and what it means to have self-respect and respect for others, the author sets
the stage for arguing that these decisions are the sorts that a democracy should leave to
individual conscience.

The author focuses on what he sees as the mismatch between public antiabortion rhetoric and the
reality of personal opinion about abortion. In his view, people who describe the fetus as a person
and equate abortion with murder cannot really mean what they say (even if they act as if they do
in trying to intimidate physicians and their patients). Thus, he argues that the abortion
controversy is not about the “derivative” rights individuals have as persons, but is really about
different views of the intrinsic value of human life , the “detached” objection to abortion on the
grounds that it undermines the sacredness or sanctity of all human life. This article requires us to
think more deeply and differently about abortion and its relation to other life-and-death issues.

Abortion and the Law in India the author in the article has discussed at length the legal status
of induced abortions in Indian subcontinent. It details the inadequacy of laws in India to protect
illegal abortions. The attitude is indifferent towards law of abortion. This article also suggests the
steps to liberalize the abortion laws. Provisions of Medical Termination of Pregnancy Act 1971
and the practical hurdles in the implementation of the Act have been discussed. More
importantly, the article includes a case study on induced abortion, conducted in 1976 in order to
ascertain the views of workers of two factories, viz. Bata Shoe Company and Escorts Ltd.,

National Law Institute University Page 7

 A Study of Women’s Right to Abort under the Indian Legal Framework

towards induced abortions, and conditions under which (they approve or disapprove such
abortions.

The case study also explores the opinion of the factory workers and their wives wording the
liberalized law of abortion. The respondents were also asked whether they approve of making
abortion services available in the family welfare clinics along with other contraceptive services.

Reports

Abortion Policies and Reproductive Health around the World, United Nations Department
of Economic and Social Affairs, Population Division throws light on the information on
changes in legal grounds for abortion and related reproductive health policies since around the
time of the ICPD for 197 countries in the world, including all 193 Member States of the United
Nations. The report shows the evolution of Government views and policies with respect to
population size and growth, population age structure, fertility, reproductive health and family
planning, health and mortality, spatial distribution and internal migration and international
migration within the context of demographic, social and economic change.

STATEMENTS OF PROBLEMS

The legal framework in India requiring strict compliance with regards to timely approval from
the medical practitioners restricts a woman’s decision making with respect to termination of her
pregnancy.

HYPOTHESIS

The presently prescribed period for abortion under the M.T.P. Act, 1971 leads to a rise in illegal
termination of pregnancies in India.

RESEARCH QUESTIONS

The present research work involves the following research questions as follows:

National Law Institute University Page 8

 A Study of Women’s Right to Abort under the Indian Legal Framework

1. What is the Indian legal framework on women’s right to abort?

2. What is the situation prevalent in India on the basis of various reports and case studies?
3. Does the current legal framework grant sufficient autonomy to women to abort in the
scenario of unusual pregnancy?
4. Why the offence of rape is of primary significance in the study of law relating to
abortion?
5. How have the Courts interpreted and extended application of the provisions of the MTP
Act, 1971?

OBJECTIVES OF THE STUDY

The objectives of the current study are as follows:

1. To study jurisprudential aspect of bodily autonomy of women and also examine

International Charters on freedom of women in respect of it.

2. To examine the current legislations on legal abortion in India and draw a comparison
with laws in other countries.

3. To analyze the situations not provided for in the existing laws.

4. To discuss women’s right to abort as the meeting point of Indian Constitution, Indian
Penal Code, 1860 and Medical Termination of Pregnancy Act, 1971.

RESEARCH METHODOLOGY

The method of the research is doctrinal, analytical and descriptive.

National Law Institute University Page 9