“Her Body her Choice” - Abortion Laws in India
Dilpreet Singh 30 Jan 2020

“Her Body her Choice” - Abortion Laws in India

No woman can call herself free until she can choose consciously whether she will or will not be a mother - Margaret Sanger

Abortion policy in India is consistent with safeguarding reproductive rights as envisaged by International Conference on Population and Development (ICPD) and similar other international agreements. It does not justify abortion as a method of family planning. Rather, it promotes the advancement of family planning services to prevent unwanted pregnancies, while recognizing the importance of providing safe, secure, available and appropriate abortion services for women who need to terminate an unwanted pregnancy.

Under criminal law the word abortion is generally used to describe a deliberate termination of pregnancy. The word Abortion in common usage means premature fetal removal during pregnancy.

Abortion is the intentional termination of gestation by any means and at any time during pregnancy from conception to full term.

Abortion as a Fundamental Right

In Suchita Srivastava and V. Krishnanan, the Madras Supreme Court and the Madras High Court respectively upheld the right of women to choose in the case of continuing pregnancy. In Suchita Srivastava, the Supreme Court clearly held that the State has a duty to guarantee the reproductive rights of a woman as a part of her rights to personal freedom, dignity and privacy under Article 21.

Delhi High Court ruled in Laxmi Mandal v. Deen Dayal Hari Nagar Hospital that preventable maternal death constitutes a breach of Article 21 of the Constitution. The High Court ordered that Delhi's NCT enforce the National Rural Health Mission program assurances, including safe abortion facilities, to prevent maternal deaths. The landmark decision gave rise to a state obligation to take steps to end preventable maternal death, including deaths caused by insufficient access to safe abortion.

The Indian Penal Code

Section 312 to 316 of the Penal Code deal with the penal abortions. These sections have been placed under the chapter of offences affecting human body.

(A)                     Section 312 of the Penal Code provides that a person who voluntarily causes a miscarriage to a child-bearing woman will be punished with imprisonment for three years, or fine, or both. The crime cannot be remembered, is bailable, and is not compoundable. If the woman is quick with child the sentence can go up to seven years and fine, unless the miscarriage is induced in good faith to save the woman's life.

(B)                     According to section 313 of the Indian Penal Code, whoever commits a miscarriage to a woman with child without consent, whether the woman is quick with child or not, shall be punished with life imprisonment or imprisonment of either description for a term of up to ten years, and shall also be liable to fine. Section 313 of the Indian Penal Code makes it punishable to cause miscarriage without the consent of the woman. The gravity of the offence is enhanced.

(C)                     When an accused intending to cause only miscarriage to a woman with child causes her death, he is convicted under section 314 of the Penal Code.

(D)                     In compliance with section 316 of the Indian Penal Code the accused does not actually need to induce abortion or intend to kill the inner life. Though not intended or wanted, he does an act likely to cause his death, he would be guilty of this crime. Only after the woman has become' fast' with child and before birth can this crime be committed. Accordingly, under this clause, the death of a fast-unborn child [ advanced pregnancy] by an act of guilty homicide is punishable for up to ten years imprisonment and fine. The crime under section 316 is cognizable by the Court of Session, not bailable, not compoundable and triable.


The Medical Termination of Pregnancy, 1971

The Act, which consists of only 8 sections deals with the various aspects such as the time, place and circumstances in which a registered medical practitioner may terminate a pregnancy. This legalizes abortion in situations where there is a contraceptive failure or where the pregnancy has an adverse effect on the physical or mental termination of the pregnancy, the pregnant woman's consent is a must unless she is a minor or lunatic then consent is necessary from her guardian.

Broadly, the Act allows for the termination of pregnancy on medical, social, humanitarian and eugenic grounds, up to 20 weeks of gestation m by a recognized licensed and sufficiently trained medical practitioner to provide a safe environment.

It can be remembered that the M.T.P. Act does not provide safeguard for the unborn child. Any indirect protection it provides under the Law is merely a by-product arising from the woman's rights. An important feature of the Act is that after twenty weeks it doesn't allow termination of pregnancy. Under the M.T.P. Act, abortion is legal until the second trimester, but it is at medical opinion's absolute discretion. It is important to note that the M.T.P. Act does not permit for induced on demand abortions.

The Medical Termination of Pregnancy Rules and Regulations 1975, define the criteria and procedures for approval of an abortion facility, procedures for consent, keeping records and reports, and ensuring confidentiality. Any termination of pregnancy done at a hospital or other facility without prior approval of the Government is deemed illegal and the onus is on the hospital to obtain prior approval.

Medical Termination of Pregnancy (Amendment) Bill, 2020

On 29th January 2020, the Union Cabinet approved the Medical Termination of Pregnancy (Amendment) Bill, 2020, amending the Medical Termination Pregnancy Act, 1971. It will be implemented in the subsequent Parliamentary session.

According to a statement, the proposed amendment seeks to raise the upper gestation limit from 20 to 24 weeks for special categories of women which will be specified in the amendments to the Medical Termination of Pregnancy Rules and which will include' vulnerable women including rape survivors, incest victims and other vulnerable women (such as women with different abilities, minors) etc.


There is no freedom, no equality, no full human dignity and person-hood possible for women until they assert and demand control over their own bodies and reproductive process…The right to have an abortion is a matter of individual conscience and conscious choice for the women concerned. - Betty Friedan.

In the larger context of sexual and reproductive health, there is a need to increase awareness of abortion services, particularly among teenagers, by incorporating approaches and interventions within value systems and family and gender relations. To enforce these policies effectively, they need to be assisted by political will and dedication in terms of sufficient resource allocation, training, and funding for services, supplemented by social feedback focused on women's needs.

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