By - King Stubb & Kasiva on January 6, 2024
The quest for individual autonomy over reproductive choices has gathered increasing global attention, solidifying the right to determine parenthood freely and responsibly as a fundamental human right. The concept of "reproductive rights" is firmly rooted in international human rights declarations and firmly connects with women's aspirations in India.
For many decades, access to safe and legal abortion and contraception has been a contentious subject, acting as proof of the ongoing fight for women's autonomy over their bodies and responsibility over reproductive decisions. Despite persistent religious and cultural opposition, a series of international conferences and agreements, ranging from ICCPR and the Vienna Declaration and Programme of Action[1] to the International Conference on Population and Development (ICPD)[2], have established a solid groundwork to recognize and protect these rights.
Acknowledging the significant influence reproductive rights have on women's health, empowerment, and general well-being, India has created a legal landscape, including both constitutional provisions and specific legislations such as the Medical Termination of Pregnancy (MTP) Act, while also taking public health considerations into account. The quest for universal and unrestricted access to reproductive healthcare, on the other hand, remains a continuous endeavor.
This article aims to provide an overview of the legal framework for legal abortion and the reproductive rights of women in India:
The notion that women have the right to make their own reproductive health decisions is reflected not only in individual wants but also in India's legal system. Legislation such as the Medical Termination of Pregnancy (MTP) Act of 1971, together with constitutionally guaranteed rights and freedoms, form a dynamic and ever-changing environment that protects reproductive health and well-being.
The fundamental rights guaranteed by the Constitution provide women agency over their reproductive choices. Articles 14 and 15 guarantee non-discrimination and equality in healthcare, including reproductive healthcare. Further, Article 21, interpreted through judicial pronouncements, encompasses the right to health, dignity, privacy, and freedom from torture and ill-treatment, furthering bodily autonomy and reproductive freedom.
Complementing these constitutional safeguards are India's numerous international treaty obligations, which the government is obligated to respect, as per Article 51 of the Constitution. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) expressly recognizes the inviolability of women's reproductive rights and empowers them to exercise informed autonomy over their reproductive well-being.[3] Similarly, the International Covenant on Economic, Social, and Cultural Rights (ICESCR)[4] and the International Covenant on Civil and Political Rights (ICCPR)[5] strengthen the legal basis for reproductive rights by recognizing the right to health, free from discrimination. The Convention on the Rights of the Child (CRC) underlines the importance of protecting the health and well-being of young women.[6]
The Medical Termination of Pregnancy (MTP) Act, 1971, was a significant milestone in the fight for women's reproductive rights in India.[7] The Act, as amended in 2021, expands authorization for safe and legal abortion services on a variety of grounds.
Key provisions include:
The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 is also relevant in this regard.[8] To prevent sex-selective abortions, this legislation prohibits prenatal sex determination. The Protection of Children from Sexual Offences Act, 2012 authorizes a minor's right to terminate a pregnancy resulting from sexual assault, ensuring access to safe abortions notwithstanding the sensitivity of the circumstance.[9] Finally, the Indian Penal Code defines the penalties for illegal abortions conducted outside the context of the MTP Act. This emphasizes the importance of adhering to legislative regulations that protect both women and healthcare providers.
Major judicial decisions have had a significant impact on India's evolving legal landscape in terms of reproductive rights. In Sandesh Bansal v. Union of India, the Madhya Pradesh High Court established the government's responsibility to protect the lives of all pregnant women and rejected the use of financial limitations as a justification for violating reproductive rights.[10] In Devika Biswas v. Union of India, the Supreme Court supported gender equality and women's autonomy in relation to constitutionally protected reproductive rights. It also condemned government practices that aided in the misuse of sterilization.[11]
In Meera Santosh Pal v. Union of India, the legality of abortions conducted at 24 weeks gestation in cases of anencephaly was established, giving precedence to a woman's reproductive autonomy and bodily integrity.[12] In another case, Ms. Z v. State of Bihar[13], a rape survivor petitioned the Patna High Court to grant her permission to terminate her pregnancy after exceeding the 20-week gestational limit owing to bureaucratic delays. Because of the Patna High Court's negligence, the Supreme Court ordered that the State of Bihar pay the petitioner Rs. 10 lakhs in compensation, provide financial support for her irreversible condition, and assume responsibility for the child's welfare.
Further, in Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors., the Delhi High Court recognized maternal health as a fundamental right, emphasizing the importance of ensuring that pregnant women have access to treatment and care that meets the minimum standard.[14] Together, these cases reflect a jurisprudential evolution, safeguarding reproductive rights and maternal health in India.
The Indian judiciary has made significant contributions to the expansion of reproductive choice and the concept of bodily autonomy. The constitutional freedom of women to make reproductive decisions was firmly established in the landmark case Justice K.S. Puttaswamy (Retd.) vs. Union of India, which emphasized the importance of personal liberty and privacy as protected by Article 21.[15] Following this, the importance of recognizing women's autonomy was highlighted in the case of High Court on its Own Motion v. State of Maharashtra.[16] This was specifically concerning improving the capacity of female inmates to procure abortions and safeguarding the fundamental right to live with dignity.
A significant stride towards gender equality and reproductive rights was marked in the case of X v. Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi.[17] The Supreme Court held that every woman has an inherent right to get legal and secure abortions, thereby ruling out any sort of discrimination based on marital status. Notably, the Court deemed it unconstitutional to draw distinctions between married and unmarried women seeking abortions within the 20 to 24 weeks gestation period arising from consensual relationships.
These recent developments collectively reinforce the concept of bodily autonomy and underscore the imperative of recognizing and safeguarding women's reproductive choices.
India has made significant progress in the domain of reproductive rights and legal abortion, which is indicated by the backing of constitutional provisions, legislative frameworks, and judicial activism. The current emphasis on reproductive autonomy and the elimination of discrimination in the availability of legal abortion are notable accomplishments. Long-term efforts to ensure universal access to reproductive healthcare, address societal stigmas, and advocate for comprehensive sex education will be crucial in the future for the progress of reproductive rights of women in India and women’s autonomy over their bodies.
The legal gestational limit for abortion in India is 24 weeks, subject to certain conditions and considerations.
The Medical Termination of Pregnancy (MTP) Act, 1971 primarily governs abortion in India.
Yes, unmarried women in India can access legal abortion services. As per recent judicial precedents, the MTP Act does not discriminate based on marital status, allowing all women, irrespective of marital status, to seek safe and legal abortions.
[1] https://humanrightscommitments.ca/wp-content/uploads/2019/03/Vienna-Declaration.pdf.
[2] https://www.unfpa.org/events/international-conference-population-and-development-icpd.
[3]https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-elimination-all-forms-discrimination-against-women.
[4] https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights.
[5] https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights.
[6] https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child.
[7] https://main.mohfw.gov.in/?q=acts-rules-and-standards-health-sector/acts/mtp-act-1971.
[8] https://www.indiacode.nic.in/bitstream/123456789/8399/1/pre-conception-pre-natal-diagnostic-techniques-act-1994.pdf.
[9] https://www.indiacode.nic.in/bitstream/123456789/9318/1/sexualoffencea2012-32.pdf.
[10] Sandesh Bansal v. Union of India, W.P. (C) 9061/2008.
[11] Devika Biswas v. Union of India, (2016) 10 SCC 726.
[12] Meera Santosh Pal v. Union of India, (2017) AIR SC 787.
[13] Ms. Z v. State of Bihar, (2018) 11 SCC 572.
[14] Laxmi Mandal v. Deen Dayal Harinagar Hospital & Others, W.P. (C) No. 8853/2008.
[15] Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors., AIR 2017 SC 4161.
[16] High Court on its own Motion v. The State of Maharashtra, W.P. (CRL) No. 1/2016.
[17] X v. Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, Civil Appeal No. 502 of 2022 (Arising out of SLP (C) No. 12612 of 2022).
