Abortion Rights: judicial analysis in India

Submitted by: Submitted To:

Prachi Ms. Rituparna Bhattacharjee
BBA-LLB (3B)
05951103520

Delhi Metropolitan Education

Affiliated to GGSIP University, New Delhi & Approved by Bar
Council of India

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Abstract
Abortion is a delicate and complicated topic that has been the focus of extensive discussion and consideration in
nations all over the world. The many cultural, religious, and social attitudes on the subject are reflected in the
vast differences in the legal and ethical frameworks surrounding abortion from one jurisdiction to the next.
Abortion laws in India have changed throughout time in an effort to reconcile women's reproductive rights with
the state's interest in protecting maternal health and controlling population growth. In order to offer a thorough
examination of India's abortion laws, this research paper will look at its historical evolution, major clauses, legal
framework, and sociological ramifications.

Introduction
India's attitude to abortion legislation can be historically linked to the regulations of the colonial era. The Penal
Code of 1860, which was in effect during British administration, outlawed abortion in most situations save for
those in which it is necessary to preserve the woman's life. These prohibitions were a reflection of the moral and
theological beliefs of the day, which saw abortion as a heinous act. But after gaining independence, India set out
to reformat its legal system, giving women's rights and reproductive freedom more priority.

With such a varied population and rich cultural past, creating abortion laws that meet the needs and ambitions of
its residents presents special difficulties. Recognising the need of discussing abortion in the legal realm
However, despite the positive legal laws, the issue is that women are not sufficiently informed, and in India, the
idea of abortion is mostly connected with dishonour, embarrassment, and shame. As a result, this blog aims to
explain the abortion rights granted to women with a focus on legislative restrictions, significant rulings, and
India's present situation.

For understanding the complications surrounding abortion in India, it is essential to understand the sociocultural
setting. Public opinion, the availability of services, and the stigma attached to abortion are all influenced by
cultural attitudes, religious convictions, and social standards. Gender prejudice and the prevalent patriarchal
attitude make it difficult to protect women's reproductive autonomy and decision-making authority. To create a
setting where women may exercise their rights and get safe abortion services without worrying about prejudice
or judgement, it is imperative to remove these socio-cultural barriers.

Abortion is a universal health service. It is safe when done by a method recommended by the WHO, suitable
during pregnancy and by a person with the necessary skills.  Six out of ten unwanted pregnancies end in
miscarriage. About 45% of all abortions are unsafe and 97% of them are performed in developing countries. 
Unsafe abortion is a major but preventable cause of maternal death and morbidity. This can cause physical and
mental health problems, as well as social and economic burdens on women, communities and health systems. 
Lack of safe, timely, affordable and respectful abortion care is a critical public health and human rights issue.

Literature review
The literature review analyses the legal and social aspects of abortion rights in India. The review provides an
overview of relevant legal literature and highlights the importance of understanding the legal framework
concerning abortion rights. the review also discusses various judicial decisions related to abortion rights, which
have played a significant role in shaping the legal framework concerning abortion in India. The study also
examines the impact of statutory and regulatory changes in recent years that have shaped the issue of abortion
rights in India.

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Objectives
 Analysing the legal justifications for abortion in other nations can shed light on India’s current
justifications, such as danger to the woman’s life or physical or mental health.

 Discussions for extending the legal grounds for abortion in India may be influenced by other countries’
new grounds, such as socioeconomic factors or foetal abnormalities.

 Accessibility of Services: Examining how easily accessible abortion services are in other nations might
provide insight on India’s attempts to provide fair access.

 Gaps can be identified and solutions for enhancing accessibility and lessening inequities can be
highlighted by evaluating variables such the geographic distribution of services, the availability of
qualified healthcare professionals, and budgetary constraints.

Hypothesis
The hypothesis is that the mother’s right should prevail over the right of unborn.

Research question
To verify the hypothesis, I adopted the following research questions:
1. What are the religious arguments on abortion?

Historical overview
India received the Penal Code of 1860 from the British colonial administration, which made abortion illegal
except in cases where it was necessary to preserve the woman's life. The prevalent moral and theological
viewpoints of the period, which saw abortion as a wicked act, had a significant impact on this legislation. These
regulations were primarily intended to save foetal life, with the health and reproductive autonomy of women
receiving just passing attention. Due to the widespread perception that abortion is a taboo topic, it was
extremely difficult for women to get safe and legal abortion services.
Following India's independence in 1947, there was a growing understanding of the necessity to update the
current legal framework and take care of women's reproductive health requirements. The Indian Medical
Association (IMA), which was established in 1928, was instrumental in promoting reforms to the legislation
governing abortion. The IMA stated that making abortion illegal would simply encourage women to have risky,
covert operations, leading to high rates of maternal mortality and morbidity.

An important turning point in India's abortion regulations occurred with the passage of the Medical Termination
of Pregnancy (MTP) Act in 1971. The Act sought to reduce the high prevalence of unsafe abortions and related
dangers to maternal health while also giving women access to safe and legal abortion services. It acknowledged
women's autonomy in making decisions. The MTP Act of 1971 established a 20-week gestational limit for
medically permissible abortions. If the woman's life or physical or mental health were in danger, or if there was
a significant chance that the child would be born with physical or mental defects, abortion was permissible. The
Act attempted to protect anonymity and informed consent for women seeking abortions and placed a strong
emphasis on ensuring access to secure medical facilities and qualified healthcare practitioners. However, it
became clear over time that the MTP Act's 20-week gestational restriction caused problems in several
circumstances. When foetal abnormalities were discovered later in the pregnancy or the woman's health was in
danger after the amendment also emphasised the value of counselling and assistance for women seeking
abortions, with a focus on privacy and informed consent. It acknowledged the need of taking women's
psychological and emotional needs into account while making decisions. The amendment aimed to guarantee

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that women have access to complete care during the abortion procedure by introducing options for counselling
and support services.

The 2002 amendment was a significant advancement in recognising the complexity of the abortion debate and
giving women more control over their own reproductive choices. However, discussions and disputes about
India's abortion laws have persisted, underscoring the need for continual assessment and future revisions to
bring them into line with shifting cultural views, improvements in medical technology, and growing human
rights standards. Additional changes to India's abortion legislation have occurred in recent years. An amendment
was presented in 2021 to increase the gestational limit for specific kinds of women, including rape survivors,
incest victims, and women with impairments. The purpose of this amendment was to meet the particular
circumstances.

Landmark Abortion Rights Decision

Roe v. Wade, one of the landmark decisions of the United States Supreme Court, is seen as a stepping stone
towards the legalisation of abortion. The US Supreme Court declared in this case that abortion was protected by
the right to privacy and that the state would take all efforts to safeguard the dignity, health, and privacy of
pregnant women who desire to abort. This decision functioned as a beacon, encouraging other governments to
respect abortion rights as well. Following the passage of the MTP Act in 1971, a number of instances arose
calling for the period of abortion to be extended beyond 20 weeks.

Roe v. Wade

Facts of the case:

In 1970, Jane Roe (a fictional name used in court documents to protect the plaintiff’s identity) filed a lawsuit
against Henry Wade, the district attorney of Dallas County, Texas, where she resided, challenging a Texas law
making abortion illegal except by a doctor’s orders to save a woman’s life. In her lawsuit, Roe alleged that the
state laws were unconstitutionally vague and abridged her right of personal privacy, protected by the First,
Fourth, Fifth, Ninth, and Fourteenth Amendments.

Conclusion of the case:

Inherent in the Due Process Clause of the Fourteenth Amendment is a fundamental “right to privacy” that
protects a pregnant woman’s choice whether to have an abortion. However, this right is balanced against the
government’s interests in protecting women's health and protecting “the potentiality of human life.” The Texas
law challenged in this case violated this right.

Justice Harry Blackmun delivered the opinion for the 7-2 majority of the Court.

First, the Court considered whether the case was moot, concluding that it was not. When the subject of litigation
is “capable of repetition yet evading review,” a case need not be dismissed as moot. Pregnancy is a “classic
justification for a conclusion of no mootness.”

The Due Process Clause of the Fourteenth Amendment protects against state action the right to privacy, and a
woman’s right to choose to have an abortion falls within that right to privacy. A state law that broadly prohibits
abortion without respect to the stage of pregnancy or other interests violates that right. Although the state has
legitimate interests in protecting the health of pregnant women and the “potentiality of human life,” the relative
weight of each of these interests varies over the course of pregnancy, and the law must account for this
variability.

In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman
and her attending physician can make that decision. In the second trimester, the state may impose regulations on
abortion that are reasonably related to maternal health. In the third trimester, once the foetus reaches the point of
“viability,” a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for
cases when abortion is necessary to save the life or health of the mother.

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The mother’s right vs the right of unborn

There is now a tendency to perceive foetuses as humans. According to modern biologists, a child’s heart begins
to beat after 18-25 days, and brain waves begin to work on the 43 rd day. A pregnant woman lives from the
moment she becomes pregnant. A foetus is already a complete human being at the moment of conception. He
has a right to live and the government has an obligation to protect that right. Abortion is therefore the same as
murder, a process that takes a person’s life. It cannot be said that the mother has the right to decide when the
foetus’s right to life is violated. Article 4 of the American Convention on Human Rights states that everyone has
a right to life that is respected. And the law should protect this right from the moment of conception. Ireland
amended its constitution in 1983, known as the Pro-Life Amendment

Mother’s rights:

Others, however, argue that criminalizing abortion is a violation of women’s right to privacy and dignity. The
right to dignity implies an individual’s autonomy to make intimate decisions that affect their private lives. And
the right to privacy means that the state must not interfere in an individual’s private life, including the right to
make correct decisions about the future of their children.

In the case of rape against women or incestuous rape, forcing women to leave their children increases the
psychological trauma. Prohibiting or restricting abortion will enter the era of “backyard abortion.” As a result,
women are forced to visit unsanitary medical institutions. This increases the risk to women’s health. Therefore,
any law prohibiting the right to abortion is a clear violation.

 Right to live
 Right to individual liberty
 Right to privacy and
 Right to dignity and health. 

Every woman has a right to live her life with dignity and honour. As Supreme Court held that, Right to Privacy
is a part of the Right to Life under Article 21 of the Constitution. So, it should be the personal choice of a
woman whether to keep her pregnancy or not as it should be her right to privacy. The right to reproductive
should be free from the Government regulations. The foetus has not got a legal position until he has an interest
of his own. When there is a danger to the life of a woman because of pregnancy, it is the mother and child who
are in danger. Who is threatened has no-fault and who threatens life also have no-fault. So, it should be the
personal choice of a woman only.

Social cultural context

The sociocultural environment around abortion in India has a big impact on how people feel about it, how they
perceive it, and how they may obtain safe and legal abortion services. Understanding the intricacies and

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difficulties related to the nation's abortion regulations requires an understanding of socio-cultural issues. Here
are the top five sociocultural factors to take into account:
Cultural Attitudes: With a vast spectrum of religious convictions, traditions, and customs, India is a culturally
varied country. varied cultures and geographical areas have varied cultural perspectives on abortion. Some
cultural ideas consider abortion to be ethically wrong and compare it to killing a life. These beliefs may result in
secrecy and restricted access to safe treatment, as well as the shame and social ostracism experienced by women
who seek abortions.
Social stigma: In many sectors of Indian society, abortion continues to be associated with social stigma. Women
are frequently discouraged from sharing their choice to terminate a pregnancy openly due to the fear of
judgement, social marginalisation, and familial rejection. The stigma may make it more difficult for women to
access safe abortions, increasing their dependence on risky and illegal methods.
Access to Safe Services: Socioeconomic considerations have an impact on access to safe and legal abortion
services. While women in rural regions confront considerable obstacles as a result of inadequate infrastructure
and resources, they frequently have greater access to healthcare facilities and skilled specialists than those in
metropolitan areas. Women from marginalised groups often find it difficult to acquire safe services, which
increases their reliance on risky practises. Legal and Policy Framework: India's legal system for abortion has
advanced, but how well it is implemented and successful depends on the sociocultural environment. Social
attitudes and cultural norms may hinder the effective enforcement of women's legal rights regarding abortion
and restrict their knowledge of such rights. Upholding women's reproductive rights requires educating people
about the law, making sure everyone has access to services, and removing cultural obstacles.
The socio-cultural background of abortion in India must be addressed using a comprehensive strategy that
includes community participation, education, awareness campaigns, and advocacy. For abortion laws to be
effectively implemented, actions must be taken to combat stigma, advance gender equality, increase access to
reproductive healthcare, and provide women the authority to make decisions about their reproductive health.

Public Health and Maternal Health Implications

Significant public health effects are related to the legal environment and availability of safe and legal abortion
services, particularly for mother health. Analysing the efficacy of India's abortion laws and practises requires an
understanding of these consequences. The effects of abortion on maternal and public health are as follows:
Reducing the Incidence of Risky Abortions:
Making sure that women have access to safe and legal abortion services is essential for lowering the risk of
risky abortions. Unsafe abortions pose serious health hazards to women and can lead to complications including
infections, haemorrhage, and even death. They are frequently carried out by unskilled medical professionals or
in unhygienic settings. The legislative framework can aid in preventing maternal mortality and morbidity linked
to unsafe procedures by ensuring access to safe abortion services.
Maternal Mortality Reduction:
In many regions of the globe, unsafe abortions constitute a major contributor to maternal mortality. High rates
of unsafe abortions put women's lives in danger and are a result of restrictive abortion legislation and restricted
access to safe procedures. Countries can lower maternal death rates and enhance overall maternal health
outcomes by providing safe and legal abortion alternatives. Better Post-Abortion Care: The availability of
thorough post-abortion care is made possible by the legalisation and regulation of abortion services. Following
an abortion, women should get post-abortion care that includes counselling, medical assistance, and follow-up
services to safeguard their physical and mental well. Access to post-abortion care is crucial for addressing any
potential complications, providing contraceptive counselling, and promoting women's overall reproductive
health.
Health Equity and Access:
Ensuring that all women, regardless of their socioeconomic status or geographic location, have equitable access
to comprehensive reproductive healthcare is a matter of health equity, which includes access to safe and legal
abortion services. Promoting health equality and eradicating inequities in maternal health outcomes requires
addressing access barriers such distance, cost, and social stigma. In order to improve maternal health outcomes
and lower maternal mortality, it is essential to make improvements to public health systems, healthcare
infrastructure, provider training, and public knowledge of safe abortion services.
It is crucial to make sure that the legal framework around abortion promotes evidence-based practises, aligns
with public health objectives, and gives women the support and tools they need to make wise decisions.
Policymakers, healthcare providers, and stakeholders can collaborate to create an environment that supports
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access to safe and legal abortion services, ensures comprehensive post-abortion care, and advances women's
reproductive rights and health by acknowledging the public health and maternal health implications of abortion.

Comparative Analysis:
Comparing India's abortion laws to the legal systems in other nations can shed light on the country's advantages,
disadvantages, and prospective reform targets. Policymakers and stakeholders can get a more comprehensive
understanding of India's abortion legislation by looking at overseas experiences, best practises, and international
human rights standards. This approach can clarify topics including gestational restrictions, justifications for
legal abortion, service accessibility, and the function of counselling and support. The discussion and prospective
reforms in India that attempt to harmonise the legal system with international standards and increase women's
access to safe and legal abortion services should be informed by the lessons learned from comparative study.
Analysing the legal justifications for abortion in other nations can shed light on India's current justifications,
such as danger to the woman's life or physical or mental health. Discussions for extending the legal grounds for
abortion in India may be influenced by other countries' new grounds, such as socioeconomic factors or foetal
abnormalities. Accessibility of Services: Examining how easily accessible abortion services are in other nations
might provide insight on India's attempts to provide fair access. Gaps can be identified and solutions for
enhancing accessibility and lessening inequities can be highlighted by evaluating variables such the geographic
distribution of services, the availability of qualified healthcare professionals, and budgetary constraints.
Legal Frameworks and International Human Rights Standards: It is possible to determine the compliance of
India's abortion laws with international human rights standards, such as those provided by the United Nations.
Discussions on prospective reforms to promote women's rights and guarantee compliance with international
standards can be guided by assessing the alignment with the values of reproductive autonomy, non-
discrimination, and privacy. Social and Cultural Factors: Analysing the sociocultural background of abortion in
various nations might help us understand how to combat stigma, get over obstacles, and support women's
autonomy in reproductive decisions. India's attempts to establish a climate that is conducive to safe and legal
abortions can be informed by examining techniques used to question societal norms, educate communities, and
lessen stigma.
Policymakers and stakeholders can find best practises, novel ideas, and possible areas for reform by
undertaking a thorough comparative study. It can serve as a starting point for conversations about prospective
changes to India's abortion laws, with the goal of bringing the country's legal system in line with international
standards, enhancing access to safe and legal abortion services, and defending women's reproductive rights.
Lessons from other nations may also be used to create comprehensive reproductive health policies and improve
maternal health outcomes in India.

Challenges and Future Directions:

India's abortion regulations have come a long way, but there are still many issues to be resolved before they can
be significantly improved. Here are some major issues and probable future directions:
Stigma and Awareness: Overcoming the societal stigma connected to abortion continues to be a difficult task. It
is crucial to make efforts to increase knowledge, dispel myths, and encourage candid conversations about
reproductive rights and options. Public awareness campaigns and community involvement initiatives can
change cultural perceptions and lessen stigma associated with abortion.
Access and Equity: It is still difficult to provide equal access to safe and legal abortion services, especially for
disadvantaged and marginalised groups. The accessibility gap may be closed through strengthening training for
healthcare professionals, expanding services in rural locations, and improving healthcare infrastructure.
Comprehensive Reproductive Healthcare: It's crucial to provide women with comprehensive reproductive
healthcare that goes beyond just providing abortion services. Access to contraception, thorough sexual
education, and assistance with family planning are essential elements. Reducing the need for abortions and
enhancing overall reproductive health outcomes can be achieved by integrating these services within the larger
context of reproductive healthcare.
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Research and Data gathering: Improving abortion and reproductive health research and data gathering can
produce data that can be used to establish policies and track development. Measure the efficacy of policies and
programmes by gathering data on the prevalence of unsafe abortions, maternal health outcomes, and the effects
of interventions.
In summary, major future prospects for India's abortion regulations include resolving stigma issues, expanding
provider training, implementing legal reforms, promoting comprehensive reproductive healthcare, and stepping
up research initiatives. India can continue to promote women's reproductive rights, enhance maternal health
outcomes, and foster an environment that supports affordable and safe abortion services for all women by
concentrating on these areas.

Discrepancies of the law

Even while the MTP Act makes every effort to uphold women's rights and equality, it sadly has a number of
flaws that need to be properly investigated in order to guarantee freedom and grant women the rights they
deserve. Medical prejudice is one of the main issues this law has.
The "physicians only" rule restricts the woman's ability to consult any type of doctor. It is required to see
certified professionals, but there is still a dearth of services and such doctors in many locations, which causes
women to suffer. There is a lack of doctors, particularly in rural places, which makes it challenging for women
to exercise their legal right to abortion.

Case laws in this regard in India

D. Rajeswari v. State of Tamil Nadu and Others
The case involves an unmarried 18-year-old woman who is requesting the issuance of a directive to end the
pregnancy of the child in her womb on the grounds that carrying the unintended pregnancy of the child for three
months caused her to become mentally ill, and the continuation of the pregnancy has caused great anguish in
her mind, which would result in a grave injury to her mental health since the pregnancy was brought on by rape.
The Court approved the request to end the pregnancy.
In Dr. Nisha Malviya and Anr. Vs. State of M.P
Approximately a 12-year-old girl was raped by the accused and became pregnant as a result. According to the
accusations, two additional co-accused took this female and killed her unborn child. They are therefore accused
of initially inducing a miscarriage against the girl’s will. The Court found that none of the three defendants had
obtained the mother’s or the girl’s agreement to end the pregnancy.
2003’s Murari Mohan Koley vs. The State
Because her daughter was only six months old, the mom in this case wished to undergo an abortion. To get an
abortion, she asked the petitioner. And in exchange for something, the petitioner approved of it. The woman’s
condition in the hospital, however, strangely deteriorated, and she was transferred to another facility. She died
as a result, though. It wasn’t a done abortion.

Conclusion
A major decision by India's Supreme Court has made abortion permissible up to 24 weeks, some three months
after the U.S. Supreme Court reversed Americans' constitutional right to the procedure. The decision replaces a
legislation passed in 1971 that permitted abortion in India, but only in specified circumstances, such as when
the pregnant woman's physical or mental health was at risk, when there were abnormalities in the foetus, when
the pregnancy was the consequence of rape, or when a birth control method had failed. However, there were
limitations for single women. The decision will have substantial effects on the rights of women who practise
other religions outside Hinduism, including those who practise Islam, Christianity, and other minorities.
However, the decision has a special impact on Hindu Indians, who generally prefer male infants and are a major
force behind the country's widespread, illegal sex-selective abortions. According to estimates from the medical
journal Lancet, illicit abortions account for one-third of all pregnancies in India.
While Hinduism encompasses a vast range of concepts and beliefs, there is no one Hindu religious position on
abortion. However, conservative Hindus tend to be anti-abortion. Ancient Hindu literature known as the Vedas
characterise abortion as the worst sort of wickedness. Some classical ancient Sanskrit scriptures compare
abortion to the most horrific of crimes, the murder of a priest. The Rig Veda, one of the earliest Vedas, compares
abortion to killing one's parents. The "foetus slayer" is among the worst sins, according to the Atharva Veda.
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According to the Sushruta Samhita Cikitsasthana, an Ayurvedic medicinal treatise, a woman becomes an outcast
by getting an abortion.
Even while Jains and Buddhists and other Indian religious groups may disagree with abortion as a karma-related
act that can impede the soul's development on its never-ending path to salvation or escape from the cycle of
birth and death, they may nonetheless be opposed to it. Abortion is regarded as a violent act that violates the
"ahimsa," or nonviolence, precept. Similar to other religions, Islam allows women to get an abortion depending
on their personal circumstances, including money. Above all, the Islamic tradition emphasises mercy, and many
Muslim jurists and bioethicists concur that abortion is permitted under specific circumstances before 120 days
of pregnancy.