Socio-legal analysis of the SC Order on Legal Abortion
Abortion is a sensitive matter in India. Before passing the Medical Termination Of Pregnancy Act, of 1971, abortion was condemned in the Vedic period in India, and women who wanted to get an abortion used to seek unsafe and deadly procedures. This act has made abortion more accessible and easier for women. With the help of the Roe v. Wade case, the right to abortion came into the picture all over the world. In this case, the US has protected the right to have an abortion. Indian Penal Code criminalizes abortion and considers it an offense under section 312. The attempts to restrict abortions do nothing to reduce the number of abortions, it only leads to the trap of unsafe abortions. In India, unsafe abortions are 3rd leading cause of maternal death all over the world. According to WHO, it says six out of 10 of all unintended pregnancies end in induced abortion. Globally there is 45 percent of unsafe abortions. Of these unsafe abortions, 1/3 are performed by untrained persons using invasive methods. Each year, 4.7–13.2% of maternal deaths can be attributed to unsafe abortion. In developed regions, it is estimated that 30 women die for every 100,000 unsafe abortions.
WHAT DOES ABORTION MEAN?
Abortion is a termination of pregnancy. An abortion without the intervention of any person is known as a miscarriage which has major consequences on the woman’s body and health. It is also known as the expulsion of a fetus from the uterus before 20 weeks of gestation. So, abortion is classified into two branches and that is legal abortion and illegal abortion. Legal abortion is where women seek abortion as per the MTP Act, of 1971. On the other hand, illegal abortion is the opposite of legal abortion.
HISTORY OF ABORTION LAWS
Throughout history, women have engaged in various forms of birth control and abortion, sparking profound moral, ethical, political, and legal debates. Abortion is not solely a matter of medical technology but serves as a focal point for broader ideological conflicts concerning the definitions of family, state, motherhood, and the sexuality of young women.
By the conclusion of the nineteenth century, legal constraints on abortion had been implemented in nearly every nation, largely influenced by the imperial powers of Europe, including Britain, France, Portugal, Spain, and Italy, which extended their prohibitive legislation to their colonial territories.
The United Nations Population Division’s comprehensive examination of abortion laws classifies countries into three principal legal systems, developed during the colonial period:
Common law jurisdictions, typified by the UK and its former colonies such as Australia, Canada, India, Ireland, Malaysia, New Zealand, Pakistan, Singapore, the United States, and English-speaking regions across Africa, the Caribbean, and Oceania.
Civil law nations, encompassing the majority of Europe, including former colonies, as well as regions like Latin America, non-English-speaking sub-Saharan Africa, and the former Soviet republics of Central and Western Asia. Additionally, the legal frameworks of several North African and Middle Eastern states have been influenced by French civil law.
Islamic law governed countries, prevalent in North Africa, Western Asia, and other regions with predominantly Muslim populations, where Sharia plays a significant role in shaping legal statutes, including countries like Bangladesh, Indonesia, Malaysia, and Pakistan.
Historically, the motivations behind the imposition of abortion restrictions can be distilled into three primary factors:
- Concerns surrounding the perilous nature of abortion procedures and the resultant mortality rates among women seeking abortions, prompting legislation aimed at preserving women’s health, albeit against a backdrop of persistent demand and associated risks.
- Moral and religious objections to abortion as a sinful or morally reprehensible act, driving legislative efforts to penalize offenders and dissuade others from seeking abortions.
- The desire to safeguard fetal life under various circumstances.
With advancements in medical technology making abortion procedures safer, contemporary abortion restrictions primarily serve punitive or deterrent purposes or prioritize fetal life over maternal well-being. While prosecutions for unsafe abortions leading to harm or fatality still occur, outdated abortion laws often force women into precarious situations, perpetuating unnecessary harm and suffering due to limited access to safe and legal abortion services.
Since the early 20th century, efforts to reform abortion laws and practices have seen significant progress globally, driven by various factors such as public health concerns, human rights advocacy, and the empowerment of women. The Soviet Union led the way in 1920 with Alexandra Kollantai’s feminist activism, initiating reforms in women’s healthcare. Subsequently, reforms have focused on promoting smaller families for population and environmental reasons, acknowledging women’s rights to control their bodies, and recognizing the societal benefits of accessible contraception and safe abortion.
Despite advancements, legal restrictions on abortion persist in many countries, hindering safe access and resulting in maternal mortality. Research has shown that broader legal grounds for abortion correlate with fewer deaths from unsafe procedures. The six main grounds for allowing abortion include risks to life, rape or sexual abuse, fetal anomalies, health risks, socioeconomic reasons, and on request. Countries with unrestricted access to abortion typically have lower rates of maternal mortality related to unsafe procedures.
However, transitioning from restrictive to more permissive abortion laws has been slow and challenging due to societal beliefs, religious doctrines, and patriarchal structures that seek to control women’s reproductive choices. Traditional attitudes emphasizing acceptance of all pregnancies and the prioritization of fetal rights over women’s rights continue to influence legislation.
Despite these obstacles, there is growing recognition of the need for safe abortion globally. Advocacy efforts have intensified, with a focus on aligning national laws with international human rights standards. United Nations bodies and regional human rights commissions have increasingly called for progressive abortion law reforms, emphasizing women’s rights to health, autonomy, and dignity.
For instance, the African Commission on Human and Peoples’ Rights has urged the decriminalization of abortion across Africa in alignment with the Maputo Protocol. Such advocacy efforts highlight the imperative of addressing unsafe abortion as a public health issue and fulfilling states’ obligations under international human rights law.
The primary reasons for seeking illegal abortions are attributed to financial strain, poverty, and social factors such as unmarried, widowed, or separated marital status. In the post-liberalization era, providers of illegal abortions include not only indigenous practitioners but also qualified professionals who may not have registered themselves to offer Medical Termination of Pregnancy (MTP) services. Likewise, illegal abortions are performed not only in the homes and clinics of unqualified practitioners but also in well-equipped hospitals and nursing homes that are not registered under the Act. Consequently, not all institutions registered under the MTP Act guarantee hygiene, and similarly, not all unregistered centers lack hygiene standards. Achieving truly safe abortions requires integrating abortion services into a comprehensive range of social services, including healthcare, prenatal care, safe childbirth, childcare, contraception, sex education, and protection from sexual and sterilization abuse. These services must be overseen by organized women’s groups to ensure equitable access.
It permits abortion in instances of contraceptive failure or when the pregnancy would significantly harm the physical or mental health of the woman. Consent from the pregnant woman is mandatory, except in cases where she is a minor or deemed mentally unfit, in which case consent from her guardian is necessary.
Inadequate cleanliness, staffing, and facilities can lead to complications such as infertility, menstrual irregularities, and pelvic inflammatory diseases. In some instances, these complications can even result in fatalities.
The MTP Act, of 1971 was a leading light in legalizing abortion in India. The debate on this act started in the early 1960s and it was led by a committee named Shanti Lal Shah. This committee submitted a positive report stating the need to liberalize and legalize abortion in India. This a highly medicalized act. This legislation is known as beneficial as it adopts a rights-based approach, ensuring that it grants rights to every woman.
This act extends to the whole of India excluding Jammu and Kashmir. According to section 3, the pregnancies must be terminated by a registered medical practitioner. Pregnancy must be terminated where it does not exceed twelve weeks, in the case where it exceeds twelve weeks then it should not exceed twenty weeks, the termination must be done by two registered practitioners.
A registered practitioner is defined under the definition part of the act which states as a person who possesses any recognized medical qualification as per sec.2 of the Indian Medical Council Act, 1956. Or whose name has been entered in a state medical register and has experience or training in gynecology and obstetrics.
section 3 (2) also provides that if the practitioner has an opinion formed in good faith that the (i) carrying of such pregnancies would involve a risk to the life or GRAVE INJURY to physical and mental health; (ii) there is a substantial risk to the child if he/she is born, it would suffer from physical or mental abnormalities as to be seriously handicapped. This section is attached with the explanation. The first explanation states that if pregnancy is caused by rape then such pregnancy will constitute a grave injury to the mental health of the pregnant woman. The second explanation states that the failure of any method used by a married woman or her husband to limit the number of children will constitute a grave injury to the mental health of the woman. In other words, this explanation talks about unwanted pregnancy.
Section 3(3) states while determining the involvement of risk of injury to health as mentioned in sub-section 2, a pregnant woman’s actual or reasonable foreseeable environment will be taken into account.
Section 3(4) states no pregnancy will be terminated for a woman who has not attained the age of 18 years until and unless there is consent in writing from her guardian.
Section 3 has been amended in the year 2021. It was violating article 14 of the constitution of India because it excluded unmarried women and which leads to unsafe abortion and prevent to access abortion for unmarried women. There were two amendments (1) the gestation period was extended from 20 weeks to 24 weeks. In other words, abortion was allowed till 24 weeks of pregnancy and if it extends more than 24 weeks then approval of the medical board is needed; (2) the term unmarried woman was replaced with any woman; (3) a confidential clause was also added regarding the name and other details of a woman who has terminated her pregnancy; (4) setting up the medical board for getting relief instead of going to courts. The significance of this amendment was to prevent maternal mortality rates.
Analysis of landmark case X vs. Principal Secretary Health and Family Welfare Dept, Civil Appeal No. 502 of 2022 (Arising out of SLP(C) No. 12612 of 2022)
The significance of this case was a wider interpretation of section 3(2) of the MTP Act of 1971.
Facts of the case: A 25-year-old unmarried woman got pregnant which was a result of a consensual relationship with her boyfriend who refused to stay with her at the last moment. She approached many hospitals for an abortion but they denied her so she approached Delhi High Court for seeking an order to terminate her pregnancy because she was not ready to raise a child it also involved social stigmas and harassment which lead to grave injury to her mental health and comes under section 3 but the High court rejected the prayer on the grounds it is not covered under section 3 of the MTP Act of 1971.
Aggrieved by the order, the plaintiff approached the Supreme Court for the termination of pregnancy for the same reasons which were mentioned earlier in the High Court’s application.
Judgment: (1) the term “change in marital status” can also be interpreted as “change in status of the relationship”.
(2) while interpreting rule 3 it excluded unmarried women, the court held there is no logic behind excluding unmarried and that will violate article 14 of the constitution of India. It also held to exclude orthodox and narrow patriarchal principles.
(3) In connection to the above argument, the court involved article 21 of the constitution, which constitutes the right to live in dignity and to have reproductive rights and autonomy about her own body. In other words, it means the right to make decisions about her own body. She is the ultimate decision maker on the question to abort a child or not. As section 3 states if there is a grave risk to the physical or mental health of a woman then she should have access to abortion. If we refer to the above-mentioned case then it leads to grave injury to mental health because of social stigmas and harassment and the other point is she is not ready to raise a child because she is an unemployed graduate. As this section refers to a glance at the surrounding environment while determining the grave injury to health. In the above case, a woman has to face social stigma and this environment will eventually lead to mental trauma. In the following case, Suchita Srivastava and Anr v. Chandigarh Administration (2009) 9 SCC 1, the court held in this case that women have the right to make reproductive choices as it has been included in personal liberty. Reproductive rights include a woman’s entitlement to continue the pregnancy or to abstain to procreate.
(4) In the last observation, the Court is considering the term “rape” under section 3(2) of the MTP Act which also includes “martial rape”. The same is the offense under IPC in section 375, in exception 2 the words sexual assault or rape also include marital rape. Martial rape has not yet been criminalized. The court disregarded the difference between rape and marital rape and held no husband can commit rape on his wife. It has been said that a woman can become pregnant from a non-consensual relationship with her husband so the woman should have a right to abort as the consequence of rape.
A woman has a right to make reproductive choices which is an integral parts of the right to privacy, self-determination and right to dignity under articles 14 and 21 of the Constitution of India. A civil right to abortion does not automatically guarantee its universal availability and practical realization as a social right. Additionally, abortion is not solely a matter of political and legal contention but also of social, cultural, and moral conflict. Robust social services expand the concept of “women’s reproductive freedom” and are therefore essential and urgent.
The failure to prevent avoidable deaths resulting from anti-abortion laws would raise concerns regarding the obligation to safeguard the right to life for all individuals. Another perspective can be gleaned from Article 12 of the CEDAW Convention, which mandates that “States parties shall take all necessary steps to eliminate discrimination against women in healthcare, ensuring equal access to healthcare services, including those related to family planning, on the basis of gender equality.” CEDAW is committee-related to discrimination against women it aims to eliminate all forms of discrimination against women.
MERITS AND DEMERITS OF ABORTION INCLUDING UNSAFE ABORTION
There are some reasons which support the prohibition of abortion; 1) fetus is a human being from the moment of conception and hence it has the right to life and is entitled to protection. Abortion is considered a homicide. 2) Many women suffer from emotional trauma after an abortion. It may elevate a woman’s risk of breast cancer in later life. It also causes infection of the uterus which makes them infertile and major hormonal changes in a woman’s body.
A question arises here if there are such reasons which support the prohibition of abortion then why it has been legalized? The answer to this question is 1) because if it is not legalized then women will resort to unsafe methods which will cause more harm to the body for example, heavy bleeding, etc. 2) in some situations, there is risk or damage to the mother on carrying on the pregnancy so to safeguard the life of mother there is a need of abortion; 3) bodily sovereignty, a woman has a right to decide on her own body, the question whether to abort a child should be her own decision; 4) if suppose, a girl below 18 years had a consensual relationship with her partner and if refuses to stay with her in such case she will have to face social stigmas and in future, she will have to face other types of consequences like mental trauma. so this is also a reason to legalize abortion. If abortion is not legalized then a woman will opt for unsafe methods which will have major repercussions on her physical as well as mental health.
What exactly leads to unsafe abortion is the lack of access to abortion. The major issue here is that access to abortion in rural areas is much more difficult because there is a lack of gynecologists as per the Indian health ministry’s 2019-2020.
It considers unsafe because it is performed in public healthcare facilities in which it is performed by midwives or birth attendants.
As per United Nations Population Fund (UNFPA)’s World Population Report 2022 states that about 67 % of abortions in India are unsafe. Abortion is said to be safe when it is done according to methods which are prescribed by WHO or any state acts or rules.
COUNTRIES WHICH ARE KEEPING LAWS AND POLICIES THAT BENEFIT WOMEN IN CLEAR SIGHT
Cuba set a pioneering example in Latin America and the Caribbean by reforming its abortion law in favor of women, establishing a unique legal framework. Since 1965, Cuba has allowed abortion on request up to the tenth week of pregnancy through its national health system. According to the Penal Code adopted in 1979, abortion is only deemed illegal if performed without the pregnant woman’s consent, in an unsafe manner, or for profit.
In Japan, abortion laws enacted in 1948 initially centered around eugenics but were practically liberal in nature. Subsequent reforms in 1996 removed all references to eugenics and expanded the grounds for abortion to include protection of health, encompassing socioeconomic factors and cases of sexual offenses. Abortion emerged as the primary method of birth control in the country, with the majority of procedures occurring within the first trimester.
Recent trends in some countries have seen the legalization of abortion through public health statutes, court decisions, and policies related to sexual and reproductive healthcare. Uruguay’s 2012 law, for instance, provides a framework for abortion services within public health legislation, outlining procedures and healthcare standards. Similarly, Luxembourg and France have amended their laws to remove restrictions on abortion, with Luxembourg eliminating penalties for abortion up to 12 weeks of pregnancy and France simplifying the process for women to access abortion services.
Sweden maintains one of the most liberal abortion laws, allowing abortion on request up to 18 weeks of pregnancy, with regulations governing providers and facilities. While abortion is subsidized by the government, strict regulations ensure its safe and controlled provision, with the majority of procedures occurring within the early stages of pregnancy.
In Australia, abortion laws vary across states and territories, ranging from liberal to restrictive, with ongoing legislative changes. Similarly, in the United States, abortion laws have been subject to Supreme Court rulings, balancing a woman’s right to privacy with state interests in regulating the procedure based on the stage of pregnancy.
The Canadian context stands out as a model for comprehensive reproductive rights, with abortion accessible on request since 1988, without restrictions on providers or locations. Despite challenges in remote areas and delays in approving medications like mifepristone, Canada’s approach demonstrates the clear benefits for women when abortion laws prioritize access and autonomy.
CONCLUSION:
Abortion should be legalized and access to the same should be given to every woman especially women in rural areas. In a highly patriarchal society, women find it difficult to access abortion. whether to carry on or terminate the pregnancy is the sole decision of the woman because it is covered in under article 21 of the constitution of India. The major reason to legalize abortion is that women do not seek unsafe abortions because of which there is an increase in maternal mortality rates. The evolving landscape of abortion laws underscores the importance of prioritizing women’s reproductive rights and ensuring access to safe and legal abortion services. Clear and progressive laws and policies play a crucial role in safeguarding women’s health and autonomy in matters of reproductive choice. Successfully changing abortion laws requires years of dedicated advocacy, with advocates needing to carefully strategize their goals before campaigning. Building a coalition of allies, including parliamentarians, health professionals, legal experts, women’s groups, and human rights organizations, is crucial for achieving meaningful reform and overcoming opposition. The aim of the MTP Act of 1971 and the amendments to this act was for the protection and safeguarding of women. The act needs to be more woman-centric and recognize abortion as a genuine reproductive need, and not punish women. Comprehensive sexuality education should be offered in schools so that they are aware of acts and have access to safe and legal abortion. The wording of abortion laws is critical and can vary significantly between countries, leading to differing interpretations and implementation challenges. Legislating on second-trimester abortions is particularly complex, with laws often becoming more restrictive as pregnancy progresses, despite the significant need for safe access to these procedures. Despite restrictive laws, millions of women and abortion providers continue to defy them, highlighting the urgent need for comprehensive reform to meet women’s reproductive healthcare needs.
This article is written by Suman Yadav student in 4th year B.L.S.L.L.B from Lords Universal College of Law. This article discusses the socio-legal analysis of legal abortion in the light of articles, case laws, and the Medical Termination Of Pregnancy Act of 1971 which also includes amendments.
