In October 2023, a 27-year-old woman approached the Supreme Court in India with a petition to terminate her pregnancy, which was over 24 weeks. She had discovered it late and was undergoing treatment for postpartum psychosis following the birth of her second child, which left her without the “physical, mental, psychological and financial” wherewithal to continue with a third pregnancy. A two-judge bench initially ruled in her favor, affirming “the right of a woman over her body.”
Yet the law in India only allows for terminations over 24 weeks in cases of fetal abnormalities or to save the life of the mother, and the case was later reopened after a doctor from the All India Institute of Medical Sciences, a premier hospital and medical college in Delhi where the abortion was to be conducted, asked for a court directive on whether a “feticide” could be performed since the fetus, in her words, was “normal.”
This time around, the same bench yielded a split verdict and the matter was put before another bench, headed by Chief Justice of India D.Y. Chandrachud, who after 12 days of deliberation rejected the abortion plea.
This verdict was seen as a step back after previous progressive strides had been made in abortion jurisprudence in India. In September 2022, months after the U.S. Supreme Court overturned Roe v. Wade, India’s top court moved to expand access to safe and legal abortions by explicitly giving the same rights to single women and survivors of marital rape (which is yet to be criminalized in India) as other populations who were previously protected.
Yet in the October 2023 case, the court deemed fetal viability — or rather, the absence of fetal anomalies — as reason enough to deny the pregnant woman access to a medical abortion, despite risks to her mental health.
The two judicial decisions point to divergent attitudes shaping the jurisprudence about abortion in India and have focused attention on the Medical Termination of Pregnancy (MTP) Act, 1971, the main law regulating access to abortion in the country.
Since its enactment, the act has allowed abortions to be carried out by medical professionals under certain conditions and for certain women: in cases where there are risks to the mother or the developing fetus, in cases of rape, and in cases of contraceptive failure for married couples. The act has been amended twice. In 2021, the maximum gestational age for abortions was raised from 20 weeks to 24 weeks but only for certain categories of women, including sexual assault survivors, divorced and widowed women, women with physical and mental disabilities and minors. Then came the 2022 decision equalizing rights for single women and in cases of marital rape.
But the MTP law does not give a pregnant person the right to get an abortion on demand. That choice has always been in the hands of doctors and the courts regardless of the medical, social and personal circumstances surrounding a pregnancy.
“The law in itself is vaguely worded, and there’s a reason why it is like that,” explained Mumbai-based lawyer Abubha Rastogi. “Since the law can’t really list down all the possibilities under which a pregnant woman can seek an abortion, it has been worded in a manner that lets the medical practitioner see the actual or reasonably foreseeable environment of the pregnant woman when deciding whether continuation of the pregnancy will have an impact on her mental or physical health or whether there are substantial fetal anomalies.”
According to a United Nations Population Fund report, two-thirds of all abortions in India are unsafe, and close to eight women die every day because of causes related to unsafe abortions, making it one of the leading drivers of the country’s already high maternal mortality rate. As of 2020, India’s maternal mortality rate stood at 103 (per 100,000 live births) compared with 23 in China, according to a report published jointly by the World Health Organization (WHO), U.N. groups and the World Bank.
The MTP Act isn’t the only law that determines access to abortion in the country. A cocktail of laws, including ones that look into prenatal sex detection, child sexual abuse and drug regulations, complicates access even in the early stages of pregnancy. The Indian criminal code deems both a person “causing a woman with child to miscarry” (an archaic legal framing from the 1860 Indian Penal Code) even if it is with her consent, as well as a woman who causes herself to “miscarry,” as offenders. The MTP Act was initially enacted as an exception to protect doctors from criminal liability.
Yet service providers continue in some ways to operate in an environment of uncertainty, since they run the risk of jail or suspension if they don’t report pregnancy in underage people or they are deemed to lack adequate records of the sale of abortion pills.
Even though the WHO emphasizes that a doctor’s unwillingness to provide the service on moral, ethical or religious grounds — known as conscientious objection — should not prevent a pregnant person from accessing a safe and legal abortion, India’s legal framework does not factor in these recommendations.
A 2021 study led by the U.S.-based Center for Reproductive Rights reported that doctors in India often ask those seeking an abortion to obtain spousal consent or police permission, neither of which are required under the law. They “counsel” women to continue their pregnancies, shame single women for their sexual behavior and face no consequences when they refuse to provide legal abortions.
“Since there is no right to seek an abortion, there is no penalization under the law for denial of service. That translates into a lot of control wielded by providers in terms of gatekeeping women’s access to abortions,” said Subha Shri Balakrishnan, an abortion service provider and member of CommonHealth India, a coalition of doctors that advocates for increased access to sexual and reproductive health care for women and marginalized communities.
Moreover, the MTP Act stipulates that all abortions be conducted by an ob-gyn and mandates that all abortions be carried out in public or government-approved private hospitals with one or two registered practitioners, depending on the gestational age.
This, however, doesn’t take into account health care facilities in rural India where there is a marked shortage of specialized medical care, including gynecologists and obstetricians, thus limiting the pool of service providers for people living in these regions.
In several areas, gynecologists are available only at the district or subdivisional hospital level, which are few and far between, forcing women to travel long distances if they want to access legal abortion services. The study by the Center for Reproductive Rights pointed out that in several districts the nearest government facility with one registered practitioner, where women could have an abortion in the first trimester, was 12 miles away, whereas second-trimester abortion services, which require two registered practitioners, were available only at a distance of 30 miles. For poor women in remote locations with limited road connectivity and public transport, traveling is expensive. In a male-dominated society, they are also not allowed to travel alone. Their access to abortion services without families and communities becoming aware — a daunting prospect given the social stigma surrounding abortion — is severely hampered.
Many women end up obtaining an abortion outside of health facilities. Of the 15.6 million abortions carried out countrywide in 2015, 78% were outside of health facilities and were likely illegal and unsafe, according to a study published in The Lancet.
In the 1960s, the government set up a committee headed by Shantilal Shah, the health and law minister of Maharashtra at the time, to look into the high maternal mortality rate in the country, which found that a disproportionate number of deaths were being caused by septic abortions.
To prevent such deaths, the Shantilal Shah Committee recommended that qualified doctors be allowed to provide abortions under certain circumstances, Suchitra Dalvie, consultant gynecologist and coordinator of the Asia Safe Abortions Partnership, told New Lines in a video call.
That led to the MTP Act, which legalized abortions under specific conditions and gave registered medical practitioners the final say on whether an abortion could be allowed in a given situation.
“The law tells doctors that if you provide abortions under so and so conditions, you will not be criminalized under the IPC [Indian Penal Code],” Dalvie said.
The 1970s also saw the introduction of technologies such as ultrasonography, fetology, chorionic villus sampling and amniocentesis, which were intended to detect fetal genetic anomalies but were used widely to detect the sex of the fetus, which led to an epidemic of female feticide because parents favored sons. By the 1980s and ’90s, rising instances of male sex selection and a declining proportion of female newborns prompted wide-ranging campaigns by women’s rights and civil society organizations to raise awareness about the issue.
In 1994, lawmakers enacted the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, which criminalized prenatal sex determination and prohibited medical practitioners from revealing the sex of the fetus to the family. But putting the law into effect has always been a challenge. One reason is that it is nearly impossible to prove in a court of law that the sex of the fetus has — or has not — been communicated to the family, as such communication can happen nonverbally or, in some cases, the mother herself can discern it from the image on an ultrasound machine screen. So it is of little surprise that the female sex ratio in India has continued to steadily decline since 1991, according to the last census recorded in the country, in 2011.
As the PCPNDT Act failed to stem the tide of prenatal sex selection, it also created an atmosphere of fear for abortion service providers.
“The law is only about diagnostics and does not talk about abortions at all. But doctors are fearful because, under the act, all second-trimester abortions can be construed as ‘female feticide,’” explained Dipika Jain, a professor of law and director of the Centre for Justice, Law and Society at the Jindal Global Law School.
Despite a low conviction rate, the law, which mandates extensive recordkeeping, is frequently used to harass doctors. In the past, medical facilities have been barred by the police from using ultrasound machines (which can be used to detect the sex of the fetus), medical licenses and registrations have been canceled during the duration of a trial, and lawsuits have been filed over minor clerical errors pertaining to the medical history of a pregnant woman. Fear of investigation and prosecution under the PCPNDT Act makes doctors particularly reluctant to provide second-trimester abortions — those beyond 12 weeks, when the sex of the fetus can be determined by an ultrasound examination. In the past 25 years since the law was enacted, 3,158 cases were registered under the PCPNDT Act. But there has been a spike in the past decade, probably because many states have increased their infrastructure to monitor clinics. Until 2014, only 606 cases were registered in the country.
The end result is that pregnant people find it hard to access even those abortions that are well within the scope of the MTP Act.
In 2012, when the Protection of Children from Sexual Offences (POCSO) Act went into effect to safeguard people under the age of 18 from sexual assault, sexual harassment and pornography, it required anyone with knowledge of adolescent sexual activity to report it to the police. Failure to do so could lead to imprisonment of up to six months.
But this stands in conflict with the MTP law’s confidentiality clause, which directs medical practitioners to protect the abortion seeker’s identity. Service providers are thus caught between the legal mandate to report the pregnancy of a minor and the need to maintain patient confidentiality. Fearing legal hassles and investigations, some service providers refuse altogether to see pregnant minors, while others insist on a court order before providing medical care.
Mandatory reporting also deters underage sexual assault survivors from seeking legal abortion services because it exposes them to the legal system, including the police and the judiciary, entities that can choose to deny the pregnant person access to abortion. The POCSO Act also fails to distinguish between sexual assault of a minor and consensual sexual activity between minors. As Jain pointed out, a teenager who is pregnant as a result of consensual sex with someone her age may not go to a legal abortion service because of the risk of her partner facing a jail term.
Then there is the 1940 Drugs and Cosmetics Act, the provisions of which can sometimes prevent access to medical abortion (MA) pills, a less invasive and more affordable alternative to surgical abortions in the first trimester. The act classifies such pills as a Schedule-H drug, meaning that they can be sold only on the prescription of a registered practitioner, and pharmacists must maintain a register recording the details of those procuring these pills.
While Indian regulations allow the use of MA pills for pregnancies of up to seven to nine weeks, pharmacists are reluctant to stock them because of potential conflicts with the MTP Act and as well as misinterpretations of the PCPNDT law.
According to a 2018 report by Pratigya Campaign, a network of individuals and organizations working toward advancing access to safe abortion care in India, the mistaken belief created by the PCPNDT Act that all abortions are sex-selective, coupled with low awareness of the MTP Act, leads drug regulators, especially in states with a low ratio of female to male births, to conduct frequent surprise visits, raids and crackdowns on pharmacies. Many pharmacists told the Pratigya Campaign researchers that drug authorities asked for client details and copies of prescriptions, which violated the privacy of abortion seekers guaranteed under the MTP Act.
In reality, the assumption that a pregnant person can buy MA pills with a prescription and use them for sex-selective abortions is misplaced given that “MA drugs are only approved for use up to nine weeks gestation, when sex determination, using the most common and affordable method — ultrasonography, is not possible,” the authors of the report pointed out. Yet regulatory issues were cited by nearly 70% of pharmacists surveyed by the Pratigya Campaign as the biggest reason for not stocking MA drugs.
“Because of these ambiguities, medical practitioners either refuse to do an abortion or send their clients to court, so that they can seek protection,” Jain said.
For all abortion petitions where the 24-week gestational limit has been crossed, courts rely on the opinions of medical boards. While courts in the past ordered the formation of medical boards on a case-by-case basis, the latest amendments enacted in 2021 make them mandatory in the determination of all abortions past 24 weeks. The result, Jain and her colleagues at the Jindal Global Law School argued at the time, could be “catastrophic” for pregnant people’s access to abortions.
The current guidelines state that medical boards, which typically comprise seven to nine specialists, can exist only at “premier tertiary-level government medical institutes.” (Tertiary-level hospitals or medical facilities are the most specialized level of care facilities in India, where the most complex surgeries are performed.) Of the 612 tertiary care institutions in India as of July 2022, just over 50% are run by the government and they are not uniformly distributed between states or urban and rural areas.
For many women, access to the nearest hospital with a medical board means traveling long distances, incurring additional costs and significant delays in getting an abortion, which increases the medical risks. There have been instances of medical boards asking women to make several visits to far-off hospitals for multiple examinations, prompting some of them to withdraw their pleas for late-term abortions.
Moreover, judges’ reliance on the opinions of medical boards instead of the women’s own gynecologists has led to more invasive examinations and greater delays. Often, when they are unsatisfied with the opinion of one medical board, courts solicit opinions from multiple boards in the same case, causing further delays and unduly requiring the pregnant person to repeatedly submit to medical examinations. Statistically, medical boards that have no connection to the person seeking the abortion are more likely to deny access. There are also no pre-specified parameters or factors that medical boards are asked to consider before offering their opinions on abortion requests, so their advice can be arbitrary and offers no recourse for reconsideration.
For instance, medical boards can assert that an abortion is risky for the pregnant woman but choose not to assess the risk of carrying the pregnancy to term, nor to account for mental health ramifications.
Medical boards also have the power to determine and even reverse, as the Supreme Court case of October 2023 showed, the outcome of abortion pleas. In January this year, an intervention by the medical board led the Delhi High Court to recall an earlier order allowing a 26-year-old widow to abort her 29-week pregnancy on the grounds of mental health. As in the 2023 case, this case too then went to a Supreme Court bench, which finally rejected the petition, refusing to go against the board’s opinion that “foeticide in this case is neither justified nor ethical as the fetus is grossly normal.”
In both these cases, medical boards indicated an unwillingness to perform court-mandated abortions, citing fetal viability and the right of the unborn child, neither of which feature in the law.
One study suggests that considerations of fetal viability and rights have entered courtrooms primarily through the opinions of medical boards — opinions also pushed by anti-abortion Evangelical Christian groups in the U.S., South America and, more recently, some European countries — despite several U.N. conventions and human rights courts establishing that the fetus does not have a right to life and guaranteeing such a right “would place unreasonable limitations on the rights of women.”
The Kerala High Court late last year denied the petition of a 12-year-old rape survivor to abort her 34-week pregnancy, after she pleaded “cataclysmic consequences to her physiological and psychological condition.” The court based its judgment on the opinion of a second medical board, which said continuing the pregnancy would not affect the girl’s psychological condition and the fetus was likely to be born healthy. Court documents did not disclose whether the second medical board was all male or not. The judgment was reminiscent of the Supreme Court’s rejection, in 2017, of the abortion plea of a 10-year-old girl on the grounds that a 32-week termination would jeopardize both her and the fetus, without any consideration given to how a forced pregnancy and birth would affect the girl.
Besides the dire psychological effect on a child forced to become a mother, “there is a high rate of preeclampsia, which can be life-threatening. The reproductive organs have not grown to that extent and the pelvic bones are in no position for that person to deliver vaginally,” explained Balakrishnan. The alternative is a Cesarean section, which is “a major surgery for a 12-year-old, with its own complications,” added Dalvie.
It is young girls who have survived sexual assault who are more likely to seek late-term abortions, said Balakrishnan.
“For them to understand that they’ve missed their period or suspect that they’re pregnant takes a few months, and then the family has to find the resources to seek medical services,” she said. Besides, threats from abusers — who are usually family or affiliated with family — dissuade underage survivors from disclosing the assault until they’re visibly pregnant.
Requests for late abortions are also common among single women who fear societal stigma, women in geographically remote areas who lack physical access to health services, and poor and marginalized women who have to put together financial resources to seek medical services. For all of them, the restrictive grounds for finding a safe and legal abortion after 24 weeks only intensify the access barrier.
It is to ease these barriers that the WHO had recommended the complete decriminalization of abortion and the removal of grounds-based approaches, gestational age limits and third-party authorizations. But India’s MTP amendments extended the gestational limits only for specific categories of women and reinforced third-party authorization by formalizing the medical boards.
While courts have allowed terminations after the 35th week, albeit rarely, on grounds of severe fetal anomalies, abortions rights activists, service providers and lawyers have been pushing for a rights-based framework for abortions.
“It needs to be recognized as a constitutional right and then there needs to be guidelines, declarations, advisories to support that,” Rastogi said. Like all other health care services, abortion should be allowed as a medical procedure, Dalvie said. “If at all there is a need for law, it should support those who want the procedure, not only protect those who provide it.”
Some abortion-related jurisprudence in India has already laid the ground for such a framework. In 2009, the Supreme Court held that a woman’s right to make reproductive choices “to procreate as well as to abstain from procreating” is part of the right to life and personal liberty guaranteed under Article 21 of the Indian Constitution. In 2017, the court reiterated these observations in a landmark privacy ruling, adding that reproductive rights are derived from the fundamental right to privacy, dignity and bodily integrity protected by the Indian Constitution.
Earlier, in 2016, the Bombay High Court said that a woman alone can decide how she deals with a pregnancy and forcing her to do otherwise is a violation of her bodily integrity. The court also recognized restrictions on abortion access as a form of gender-based discrimination. While the Indian Constitution does not expressly guarantee a right to health, courts have read it as part of the right to life and personal liberty, which the constitution does protect.
“These judgments … while they don’t really lead to a change in law, they do set out jurisprudence, ensuring that if and when there is anything before the courts or the Parliament, there is already the material which will lay the foundation for a further progressive law,” Rastogi said. These judgments “recognize that it is the right to bodily integrity of the person carrying that pregnancy to be able to decide what to do and what not to do [with her body],” he added.
The sections of the Indian penal code that criminalize abortion need to be repealed, said Jain, the law professor. If they are repealed, then “no abortion is illegal and we don’t need the MTP law. We can do with guidelines or some protective legislation so that there is no discrimination on the ground for women, so they can access abortion services,” she said.
Rastogi echoed similar thoughts. Until abortion is decriminalized, “there will always be fear of not being within the scope of what the law permits.”
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