A Complete History of India's Abortion Laws, 1971–2021

The Roe v. Wade ruling was reversed by the US Supreme Court in a shocking decision in June. Roe v. Wade was a landmark decision when it was rendered in 1973, which is almost 50 years ago. It stated that mothers have the constitutional right to abort their unborn children. It is a little-known fact that the Medical Termination of Pregnancy Act, 1971, was passed in India two years before the Roe v. Wade ruling, guaranteeing women's access to abortions. India's abortion regulations were advanced for the time; women enjoyed the freedom to end pregnancies up to the legal limit of 20 weeks. However, the MTPA of 1971 had some shortcomings. To begin with, women were only permitted to end their pregnancies if two licensed medical professionals concurred that doing so would endanger the woman's or the child's life. Pregnancies brought on by rape or those that resulted from contraception failure during the marriage were also acceptable reasons for abortion. In other words, women might legally obtain an abortion only in instances of rape or failed contraception. Whether or whether a woman could get an abortion was up to the doctor's discretion. According to the legislation, women who are mentally ill or minors must get a guardian's permission before having an abortion.

India's history of abortion

Why did India initially legalize abortion? Prior to the Medical Termination of Pregnancy Act of 1971 (MTPA), women who sought an abortion and those who provided abortion services could both receive sentences of up to 3 years in prison. Only in situations where the life of the pregnant lady was in danger was there an exception to this rule. Shantilal Shah, who was the minister of public health, law, and justice at the time, declared in 1966 that this rule needed to be liberalized since it was too onerous.

This was the impetus for India's first abortion legislation, according to which a pregnancy could be ended legally with the consent of licensed medical professionals. Although progressive, this act served more as a means of controlling India's rapidly expanding population, particularly in the lower socioeconomic areas of the nation than as a direct outcome of the women's movement in that country.

The legal limit on gestational age (20 weeks) has never been without controversy. There was no justification for the 20-week limit to remain as medical facilities emerged in 1971, allowing pregnancies to be aborted at 20 weeks. A revised MTP Act that, subject to a few restrictions, allows abortions up to 24 weeks into a pregnancy took effect in 2021. The new Act increased the cap for sex assault victims, children, widows, divorcees, mentally ill women, pregnant women, women in emergencies, and women who are physically or mentally ill.

Abortion statistics in India

It is crucial to ask why most women still choose risky abortions in a nation where it is legal and supported by the government. 67 percent of all abortions performed in India, according to the UNFPA's State of the World Population Report 2022, were unsafe.

Prior to the updated MTPA of 2021, married women could obtain an abortion if their contraception failed them. This drove a lot of single women down the perilous route of witch doctors and risky, illegal abortions. In the biggest Indian states, 50 percent of pregnancies were unplanned, according to a 2018 Guttmacher Institute report. In light of this, a statute restricting unmarried women's access to safe, legal, surgical abortions was a violation of their constitutional right to equal protection under the law. According to a report by The Lancet Global Health, 81 percent of the 1.56 crore abortions performed in India in 2015 were caused by over-the-counter medications. Only 14% of abortions were performed surgically.

The Ministry of Health and Family Welfare recommended a change to the MTPA, 1971 in 2014–15, citing a physician shortage. This amendment made medicinal (non-surgical) abortions possible for practitioners of non-allopathic medicine, including Ayurveda, naturopathy, and homeopathy. The death of a lady in Maharashtra after she sought an abortion from a homeopathic doctor who was reportedly executing illegal sex-selective abortions sparked intense opposition to this plan. The Act was last amended in 2021.

Abortions were not permitted to be carried out by practitioners of complementary medicine. The wording of the new Act was different from its earlier incarnations, which was another reason why it was noteworthy. The MTPA of 2021 did not restrict pregnancy termination in the event of contraceptive failure to married women solely. Today, unmarried women can also get safe, legal abortions. To ensure complete care, the new act further broadens the scope of services including therapy, social care, rehabilitation, etc. The new Act also guarantees anonymity; a registered medical practitioner may only give the name of a patient to someone who has been granted legal authorization.

In India, there is still a significant stigma associated with abortion. A 2018 survey found that over 62% of the 500 women surveyed in Madhya Pradesh thought abortion was sinful. One-third of the women polled stated they would no longer hang out with those who seek abortions. Unfortunately, family planners, gynecologists, and other medical professionals are also affected by the stigma associated with abortions. The advice to keep the kid is frequently given to married women by both family and medical professionals.

The circumstance is far worse for single women. Unmarried pregnancies are frequently viewed as "illegal," and teenage girls are coerced into telling the authorities about their pregnancies. Before the MTPA, 2021, it was unlawful for single women to get an abortion, which forced them to turn to "illegal" methods, including home abortions, witch doctors, "ayurvedic" medications, etc. Unsafe abortions are the third most common cause of maternal death in India. The age group of 15 to 19-year-old single women is most at risk of dying from an abortion-related complication.

Recognition of women's agency is necessary.

The fact is that Indian women's reproductive rights are not entirely their own. Even the improved MTPA, 2021 gives doctors—not women—the final say in deciding whether to perform an abortion. Giving doctors the right to make decisions takes away control from women, many of whom need or want an abortion for personal reasons in a nation where stigma is rampant.

While the new Act does not specifically state that women must be married to receive an abortion, it does state the requirement for a partner, thereby excluding sex workers who are already subject to severe stigma. Despite the fact that it is not required by law, many public and private hospitals' medical staff insists on obtaining a husband's consent before performing an abortion. In a recent study, 72 women and two children who had been raped and wanted abortions were questioned; it was found that 77 percent of them were unable to do so because doctors required a "husband's approval" before performing the procedure.

The pregnant lady should be the only one to decide whether to keep the child or not. Beyond this, any interference should be seen as a violation of women's fundamental right to privacy. The MTPA, 2021 is rather progressive. However, it does not include a rights-based way of getting an abortion.