Author: M. Radhi Rudra,
School of Law, SRMIST, Chennai
To the Point
In India, Abortion laws are governed by Medical Termination of Pregnancy Act, 1971(MTP Act) along with relevant provisions of the Bhartiya Nyaya Sanhita (BNS) as both operate together. It is legal but restricted under some circumstances. Abortion is often considered a matter ofindividual autonomy and personal liberty but it is subject to legal restrictions. Despite the existing law, many women still face unsafe and illegal abortion ways due to social taboos and lack of awarness.
Use of Legal Jargon
➢ The Medical Termination of Pregnancy Act, 1971: This act provides legal ways termination of pregnancies under registered medical practitioners and related matters. The latest amendment was in 2021.
➢ Abortion: Intentional Termination of pregnancy through medical intervention, with the knowledge and consent of the pregnant woman.
➢ Miscarriage: Termination of pregnancy through natural (hormonal and biological) and intentional ways.
The Proof
In 2023, the Ministry of Health and Family Welfare in the Rajya Sabha reported that Maharashtra is in the highest number 1.8 lakhs cases approximately, followed by Tamil Nadu at 1.14 lakhs and West Bengal at 1.14 lakh and the lowest was recorded in Arunachal Pradesh, Chandigarh, Uttarakhand and Himachal Pradesh.
Reproductive rights are often considered as an integral part of human rights which is also closely linked to women’s right, health and individual liberty. However, it is restricted through BNS and MTP Act. The Medical Termination of Pregnancy Act states that pregnancy may be terminated only by medical practitioners acting in good faith. This section creates a statutory exception to the criminal provisions relating to abortion under the BNS by permitting medical termination in specific situations
Section 3 of this act allows abortion up to 20 weeks permitted with the opinion of one registered medical practitioner, and pregnancies between 20 to 24 weeks require the opinion of two registered medical practitioners for specified categories of women, only in case fetal abnormalities or where mothers life is in danger or would cause grievous injury to both physical and mental health and all these acts must be performed only by registered medical practitioners only with assistance of safety procedures. For serious foetal abnormalities, a Medical Board may approve termination beyond the prescribed time limit, which consists of specialists such as a gynaecologist, paediatrician, and radiologist/sonologist. The section considers women’s medical, psychological, familial and societal situation affecting women’s well-being. If a woman ispregnant below the age of 18 years or with unsound mind, the written consent of her guardian is mandatory before the pregnancy may be terminated. Apart from these cases, the pregnancy can be terminated only with the consent of the pregnant woman herself and it does not require consent of the husband, family members, or any other person. Additionally, this section provides immunity to the medical practitioner who perform lawful termination with the Act.
Section 4 specifies the legally authorized places where pregnancy may be terminated like hospital owned or established by the government or places specifically approved by the Government for this purpose of termination.
Section 5 of this act provides exceptions to the requirements mentioned under section 3 and 4. In case of emergency, there is no need of obtaining permission of medical practitioners and length of pregnancy can be waived. If the registered medical practitioner, acting in good faith terminates the pregnancy to save the pregnant women life. In such emergencies, the doctor can perform the termination without following the usual procedural requirements. Apart from theregistered medical practitioner, if it performed by anyone other than the a registered medical practitioner, it constitutes a criminal offence. The punishment is rigorous imprisonment for a minimum of two years, which may extend to seven years.
Furthermore, any pregnancy termination carried out at any place other than recognized places under section 4 is punishable rigorous imprisonment for a minimum of two years, which may extend to seven years. Any person who is in charge of administering, managing, or maintaining an unapproved hospital or clinic where an unlawful termination is performed is punishable is rigorous imprisonment for a minimum of 2 years and up to 7 years.
a registered medical practitioner must have specific training or experience in gynaecology and obstetrics does not apply
Section 5A of MTP Act (amend in 2021), provides for the privacy of woman. No registered medical practitioner can disclose the personal details like name or any information that could identify her. Only under the law, the legally authorised person can get the details. If a medical practitioner revealed the details of a woman whose pregnancy has been terminated under the Act, they are punished with imprisonment for a term of up to one year, or with a fine, or with both.
The MTP Act ensures that no lawsuit or other legal proceedings against the registered medical practitioner if any damage occurs (or is likely to occur) if the done a act in good faith.
On the other hand, we have BNS where Sections 88 to 92 deal with offences relating to causing miscarriage and harm to unborn children. Section 88 of BNS states that if a person voluntarily and intentionally causes a pregnant woman to miscarry unless it is done in good faith to save the life of the pregnant woman, it is considered as a crime. The offender may be punished with imprisonment for up to three years, or with a fine, or with both. If the woman is quick with child, punishment with imprisonment for 7 years with fine. Recognizing that a woman has the right to make decisions about her own pregnancy.
Section 89 of BNS states that causing miscarriage without the woman’s consent, regardless of the stage whether she is quick with the child or not and they are punished with imprisonment for life or imprisonment for up to ten years, along with a fine.
Section 90 of BNS states that if a person intentionally causes miscarriage, resulting in death of the pregnant woman, the offender can be punished with imprisonment for up to 10 years and a fine. However, if the act done without the consent of the women, the punishment may extend to life imprisonment or up to 10 years with a fine.
Section 91 of BNS states that if a person intentionally prevents a child from being born alive or causes the child to die after birth, they can be punished with imprisonment for up to 10 years, a fine, or both. However, this does not apply if the act was done in good faith to save the mother’s life.
Section 92 of BNS states that if someone’s act that would amount to culpable homicide if it caused a person’s death, but instead causes the death of a quick unborn child, the person can be punished with imprisonment for up to 10 years and a fine.
Abstract
Abortion laws in India are primarily governed by the Medical Termination of Pregnancy (MTP) Act, 1971, along with relevant provisions of the Bharatiya Nyaya Sanhita (BNS). The legal framework recognizes a woman’s right to make decisions regarding her pregnancy, but this right is subject to specific medical and legal conditions. The MTP Act permits termination of pregnancy in certain situations, such as risk to the woman’s physical or mental health, fetal abnormalities, and other circumstances affecting her overall well-being. It also ensures that abortions are performed only by registered medical practitioners in approved medical facilities, while maintaining strict confidentiality of the woman’s identity.
In contrast, the BNS imposes criminal liability for unlawful abortions, particularly when performed without the woman’s consent or by unqualified persons. These provisions are intended to prevent unsafe practices and safeguard women’s health and life. Despite legal recognition, many women still face barriers such as social stigma, lack of awareness, and limited access to safe medical services, leading to unsafe abortions.
Case Laws
1. Xyz vs The State of Gujarat on 21 August, 2023.
Judge: B. V. Nagarathna.
Facts:
The appellant became pregnant following an alleged case of sexual assault and sought permission from the Gujarat High Court to terminate the pregnancy, which was around 25–27 weeks advanced. She argued that continuing the pregnancy would negatively affect her mental and physical well-being. The High Court rejected her request, after which she approached the Supreme Court. A medical examination conducted during the proceedings found that termination could be carried out safely and that continuing the pregnancy could impact her mental health.
Held:
The Supreme Court allowed the appellant’s request and permitted medical termination of the pregnancy. The Court held that reproductive decisions are a part of a woman’s personal liberty and dignity under Article 21 of the Constitution. It recognised that a pregnancy resulting from sexual assault may cause serious psychological harm and affirmed that the woman’s autonomy and right to make decisions about her own body must be respected.
2. X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi (2022)
Facts:
The case involved the interpretation of the Medical Termination of Pregnancy (MTP) Act and Rules, especially whether unmarried women could access abortion between 20 and 24 weeks of pregnancy. The issue also involved the conflict between mandatory reporting under the POCSO Act and the privacy rights of minors seeking abortion. The Court examined the rights of women relating to dignity, privacy, equality, and reproductive autonomy.
Held:
The Supreme Court held that Rule 3B of the MTP Rules applies equally to married and unmarried women. Denying unmarried women access to abortion would violate Articles 14 and 21 of the Constitution. The Court recognized that every woman has the right to make decisions about her body and pregnancy. It also held that minors seeking abortion should have their privacy protected while doctors continue to follow POCSO reporting requirements. The judgment emphasized that reproductive choice is part of a woman’s dignity, privacy, and personal liberty.
Conclusion
The abortion laws in India try to maintain a balance between a woman’s right to choose and the need to ensure safe medical practice. The Medical Termination of Pregnancy Act, 1971, along with provisions of the Bharatiya Nyaya Sanhita, allows abortion in certain situations while also setting clear legal and medical conditions. These laws recognise that a woman’s decision about pregnancy is closely linked to her health, dignity, privacy, and personal liberty under Article 21 of the Constitution. At the same time, abortions must be done only by registered doctors in approved medical places to avoid misuse and health risks.
Court decisions have also supported the idea that reproductive choice is an important part of a woman’s fundamental rights. Cases like X v. Principal Secretary and XYZ v. State of Gujarat show that courts respect a woman’s autonomy and mental well-being in such matters.
Still, many women face problems like social stigma, lack of awareness, and limited access to safe healthcare. Because of this, legal protection alone is not enough. There is also a need for better awareness, supportive healthcare systems, and a more understanding approach so that every woman can safely exercise her reproductive rights.
FAQ
1. Is abortion legal in India?
In India, Abortion is legal but restricted under the Medical Termination of Pregnancy (MTP) Act, 1971.
2. Does a woman need her husband’s or family’s consent for abortion?
No, only female minorities and with unsound mind needs the guardian’s consent.
3. Is the privacy of the women protected?
Yes, under section 5A of the MTP Act protects the women’s privacy is prevented by registered medical practitioners.
2. https://ijrar.org/papers/IJRAR23B1311.pdf
5. https://www.manupatra.com/roundup/373/Articles/PRESENTATION.pdf
8. https://indiankanoon.org/doc/76091423/
9. https://indiankanoon.org/doc/123985596/
10. Medical Termination of Pregnancy Act, 1971.
11. The Bhartiya Nyaya Sanhita, 2023.
