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The MTP (Amendment) Act of 2021 received the assent of the President of India on 25^th March 2021. The Amendment sought to bring changes to the Medical Termination of Pregnancy Act of 1971 (MTP Act) which deals with termination of pregnancy or abortion.

Termination of pregnancy or abortion in India is dealt with under the Medical Termination of Pregnancy Act, 1971. The Act was considered a major milestone of social legislations in India at the time of its initiation. However, 50 years of its application, it has failed to keep up with changing times, needs, and advancements in technology. The Indian Judiciary had to come to the rescue of woman seeking abortion post the prescribed period under the MTP Act. Further, the Judiciary has given recognition to privacy rights concerning abortion. Taking this into account, the MTP (Amendment) Act of 2021 was seen as a much needed amendment to the MTP Act. While on one hand, it brought about some progressive change to the original Act, it can be argued that it is not progressive enough to encompass the right to abortion as part of the right to privacy. This leads us to the question, is it valid to deprive a pregnant woman of an essential human right. i.e. right to privacy during her pregnancy?

Abortion Law in India: Historical Development

Abortion has been defined as a process by which pregnancy is terminated by a method (spontaneous and induced) before the fetus is sufficiently developed to survive independently[1]. The MTP Act has defined termination of pregnancy as “procedure to terminate a pregnancy by using medical or surgical methods”[2].

The practice of abortion has been in existence since time immemorial. Records have shown that the ancient Romans relied on the extracts of the silphium plant to induce abortions[3]. Similarly, Greeks employed the herb pennyroyal for the same purpose[4]. The Sacred ancient Hindu texts mention Abortion as “Garbhahatya” (pregnancy destruction) and “Bhurnahatya” (fetus murder)[5]. However, due to the lack of literature, it is unclear how often or to what extent the ethics of abortion was discussed during that time. 

In India, before the commission of the MTP Act, 1971 abortion was dealt by the Indian Penal Code, 1860 (I.P.C)[6]. Sections 312 to 316 of I.P.C deal with the law on abortion and miscarriage. Section 312 lays down that if any person causes a miscarriage of a pregnant woman, the person will be punished with imprisonment up to three years and fine or both, and in case the pregnant woman is quick with child, the person shall be punished with imprisonment up to seven years along with fine. Under this section, a woman who causes miscarriage or gives consent to miscarriage is also liable for punishment. This section makes an exception for causing miscarriage in good faith to save the life of a woman. Section 313 provides the punishment for life imprisonment or imprisonment which may extend up to ten years and a fine, to a person who causes a miscarriage without the consent of the woman. Section 314 makes a provision for imprisonment of up to ten years and a fine also, to a person who intends to cause the miscarriage of a woman by doing any act. The I.P.C sections 315 and 316 deal with acts akin to miscarriage. It provides punishment for any act done which prevents the fetus to be born alive or causes it to die after birth. However, in case the act is carried out in good faith i.e. to save the life of the pregnant mother, it does not come under the preview of this section. It is important to note here that an act causing the death of the child is not strictly an act of miscarriage. The offense committed under this section is feticide when a fully developed fetus is killed before birth. It is infanticide in case death occurs immediately after birth.

The liberalization of abortion law first gained momentum in India due to high maternal mortality due to unsafe abortion[7]. There were no huge or significant movements regarding right to abortion in India, though there were some voices here and there to make abortion a legal and rightful option that woman should be able to opt for abortion without having any social or legal pressure on them. Between the period of the mid-19^th century and mid-20^th century, some loud voices became quite vocal in the outskirts of the Bombay Presidency; these inquests were for the Hindu widows who died attempting abortions[8]. The coroner led to big questions such as whether the death of a woman attempting abortion is a suicide, homicide, or an accident that can be referred to as an accident due of unknown reasons, this question followed the judicial and governmental bodies to think and decide whether or not abortion should be legalized in India. This also had further complications because if the surgeon who conducted the postmortem examination declares the death was a murder and not an accident or suicide then there can be a criminal trial (provided there is a chance of any potential suspect involved with the deceased). And if the postmortem surgeon declares the death of the woman was an accident or suicide, there would be no criminal case following up and the case would end there. Even when there were no big-scale movements in India regarding abortion, Hindu woman poisoning themselves to death to carry out abortions can be termed as a way to make a protest and raise their voices against the unfair laws that make them kill themselves out of any choices. The Shantilal Shah Committee was appointed by the Government of India, which was given the responsibility to extensively review socio-legal, socio-cultural, and medical, features related to abortion[9]. It recommended The Medical Termination of Pregnancy Act, 1971. The MTP Act provides a legal framework for abortion law in India. It is a short Act with 8 sections and deals with the restrictions imposed by the law not only on when the fetus can be aborted but also on who can get the abortion done and in what circumstances.

Right to Abortion as a Human Right.

The modern-day debate regarding abortion rights as a human right started in America when the Supreme Court of the United States for the first time interpreted the right to make choices under right to privacy in the case Griswold vs. Connecticut[10]. The Supreme Court nullified a law that banned the use of contraceptives by a married woman on the ground that the constitutionally protected right to privacy was infringed. Further, more importantly in 1973, the Supreme Court of United States interpreted the Constitutional right to privacy to include a woman's right to terminate a pregnancy in the case of Roe vs. Wade[11]. The case recognized abortion as a fundamental right and further stated that only “Compelling Interest” could justify the State laws that limit the right.

Compelling interest refers to a method by which the judiciary determines the Constitutionality of a law. The compelling interest test is part of the strict scrutiny doctrine which is used by the judiciary for judicial review of governmental legislation and action which encroach upon fundamental rights[12]. It was first developed by the Supreme Court of United States in the case Sweezy vs. Hampshire[13]. It was done to justify an infringement of constitutionally protected rights[14]. It is indicated that in case the court does not find a particular right should be protected as a fundamental right, it could be overridden only on the grounds of compelling interest. Right to privacy is a constitutionally protected right, it is an integral part of liberty. However, it is not absolute and is subject to fulfill the compelling interest test.  In  case a court finds that a claimed right is entitled to be protected as a right to privacy under the Constitution of India, a law infringing it must satisfy the compelling interest test. Compelling interest has been given paramount importance which can be used to justify an infringement of a fundamental right.” In the case of abortion it can be said that under the present legal system it can be restricted by a regulation i.e. adequate “compelling interest”.

The Supreme Court of United States in Roe vs. Wade[15] used the "right to privacy" as its rationale to invalidate anti-abortion laws on the ground that such laws violated a woman's human rights[16]. There is no direct link between rights to abortion as a right to privacy. It was decided by the court to include right to abortion as a right to privacy. The decision was taken in the landmark case of Roe vs Wade. The idea that the right to abortion could be included as a right to privacy before Roe vs. Wade was an odd idea. The Judiciary in this case took the criminal act of abortion and turned it into a Constitutional right over night. The Supreme Court of United States articulated right to abortion as a fundamental right in a 7-2 bench decision.  The Court while deciding the matter it mentioned that abortion is a private matter and when the matters are purely private the general Constitutional principles obstructs the State to interfere.

The Supreme Court of United Sates ruling in the case of Roe vs. Wade opened the way for freedom of choice to exist within certain limits[17]. It has been argued that right of privacy is not a meaningful concept for woman if it allows the State conceptually to sever her womb and represent its contents as separate[18]. However, the decisions to include right to abortion as a right to privacy was not welcome to all and has been subject to criticism it has been argued that the reason child's right to privacy is less stringent than that of an adult's is because the infringing of a child's right to life is more easily justified than infringing an adult's right to privacy[19].

The Judgment in Roe concluded that in the case of the first trimester when the abortion was safe, the State could have no regulation which banned abortion. In the second trimester when abortions became more dangerous, the State could have regulations to protect the pregnant mother’s health. In the third trimester, the State can ban abortion for health and life reasons but then defined health to include physical, emotional, psychological, familial and the woman's age to the wellbeing of the patient. We can say that Roe created a base law for abortion, beyond which the State could not go. The State cannot outlaw abortion services but can regulate the service.

The State must provide pregnant woman seeking abortion access to safe and hygienic facilities to terminate their pregnancy. States that prosecute and punish woman seeking abortion obstruct a woman’s basic human rights. International legal documents support a woman’s right to safe and legal abortion. Few important documents that support this argument include the Universal Declaration of Human Rights[20], International Covenant on Civil and Political Rights[21], Covenant Economic, Social and Cultural Rights Covenant[22] and Woman’s Convention on the Elimination of all forms of discrimination against Woman[23].

The dominant image of privacy has always been liberal i.e. an idea of private sphere in which the State could not interfere[24].  The idea of liberty from excess authority has existed from a very early time.  The earliest examples of liberty can be traced back to the earliest Greek, Roman, English Empire, where the idea liberty was used to protect the people from the authoritative rule of the rulers[25]. There is a fundamental belief that under the privacy law every person has right to choose his private life, unless it is repugnant to any moral, public or legal norm[26]. Over the years right to privacy has grown into an important human right. The most essential mention of right to privacy can be found under the Universal Declaration of Human Rights, 1948[27], and article 12 and article 17 of the International Covenant on Civil and Political Rights, 1966[28] (ICCPR) which protect persons from arbitrary interference with their privacy.

Right to privacy in India is not specifically mentioned in any legal documents, it has been subject to gradually developed through a series of judicial interventions and activism over the past 60 years. Right to Privacy was first dealt by the Supreme Court of India in the case M.P Sharma vs. Satish Chandra[29]. The case recognized the power to search and seizure over right to privacy. In the case Kharak Singh vs. State of U.P[30] the Supreme Court of India held “the right of privacy is not a guaranteed right under our Constitution……”. In ADM Jabalpur vs. Shivakant Shukla[31] right to privacy hit rock bottom when the Supreme Court of India held that interest of the State would over-ride the individual security and liberity. In the case Govind vs. The State of M.P[32]. The case upheld Madhya Pradesh Police Regulation Act of 1961, under reasonable restriction. However, for the first time the court acknowledged the existence of right to privacy. In the post-emergency era the Judiciary slowly started shifting its view on right to privacy and gave landmark judgments including Minerva Mills Ltd. & Ors vs Union Of India & Ors[33], Maneka Gandhi vs. Union of India[34] etc. One such historic judgment came in the case R. Rajgopal vs. State of Tamil Nadu[35], the Supreme Court in the case held that right to privacy was implicit to right to life and liberty guaranteed in the Art 21 of the Constitution. Similarly, in the case People's Union for Civil Liberties vs. Union of India[36], affirmed that right to privacy is protect by the Constitution. It laid down guidelines for surveillance power so that right to privacy of an individual is not easily violated. Finally, in 2017 that the right to privacy was included as a fundamental right in India. The Nine Bench of the Supreme Court of India while deciding the constitutional rationality of the Indian biometric identity scheme popularly known as “Aadhaar” in the case of K.S.Puttaswamy vs. Union of India[37] unanimously affirmed the right to privacy as a fundamental right under Art 21 of the Constitution of India. The Judgment brought new light to the expression of the “right to life and liberty”. The judgment certainly enlarged the scope of Art 21 of the Constitution to include itself the right to privacy. Further, it held that right to reproductive choices are part of right to privacy. Supreme Court reconciled the different interpretations of the right to privacy given in the cases of M.P Sharma vs. Satish Chandra and Kharak Singh vs. State of U.P to declare the right to privacy as a part of fundamental rights. Further, it was also held that privacy would cover personal autonomy relating to the body which would also include abortion rights of woman as earlier held in the case of Suchitra Srivastava vs. Union of India[38].

The right to abortion as a right to privacy and a Constitutionally protected human right has proved controversial globally after the Supreme Court of the United States overturned the landmark judgment given in the case Roe vs. Wade and Planned Parenthood vs. Casey[39]. Recently, in the case Dobbs vs. Jackson Women’s Health Organization[40], the Supreme Court of United States held that right to abortion is not a Constitutionally protected right. The judgment gives full power to the individual States to regulate abortion. In India, right to abortion is a Constitutionally protected right. Over the years the Supreme Court of India and different High Courts as well as the legislature have taken a pro-choice stand through judicial decisions and legislative enactments that felicitate right to abortion. It includes the MTP (Amendment) Act of 2021. Further, in September 2022 the Supreme Court of India held that lack of marital status cannot be held as a ground to deny abortion[41].

The Medical Termination of Pregnancy (Amendment) Act 2021: A Critical Analysis

The MTP (Amendment) Act of 2021 was a much-awaited amendment to the MTP Act of 1971.  The new amendment has increased the upper limit for abortion from 20 weeks to 24 weeks. The opinion of one registered medical practitioner is required up to 20 weeks of gestation limit and in case the pregnancy is between 20 to 24 weeks the opinion of two registered medical practitioners is required according to the new amendment[42]. The MTP Act provides the Central Government with power to make rules to carry out the provisions of the Act[43] and State government is given powers to do the same in certain cases[44]. The Government of India provided amendment to the MTP rules of 2003 by the MTP (Amendment) Rules 2021. The amendment has defined the power and function of the Medical board under Rule 3A of the MTP Rules, 2003. It includes the power to allow or deny termination of pregnancy beyond 24 weeks, opt for a specialist in the board and functions to examine the woman and her report applying for termination of pregnancy, provide opinion in form D with respect to accepting or rejecting termination of pregnancy within three days of receiving the request and to provide termination of pregnancy with all safety precautions and counseling within five days of the receipt of the request[45]. Termination of pregnancy up to 24 weeks for special categories of woman has been defined in the amendments to the MTP rules to include survivor of sexual assault, rape, incest, change in marital status during ongoing pregnancy, mentally differently-abled woman, fetal malformation, pregnancy on humanitarian settings or disaster or emergency and minors[46], opinion of Registered Medical Practitioners required for termination of pregnancy by medical methods till nine weeks, till twelve weeks by surgical methods, beyond twelve weeks till twenty weeks and beyond twenty weeks up to twenty four weeks and beyond twenty four weeks[47] and safety procedures for termination of pregnancy beyond 24 weeks of pregnancy[48]. Lastly, the Amendment Act states that the name and other particulars of a woman who has undergone abortion shall not be revealed except to the person who is authorized by law[49]. 

Woman in India can access legal abortion with certain limitations and these limitations have caused social, legal, and reproductive health issues for woman, especially regarding their right to safe abortion[50]. Woman’s control over their bodies is restricted by the MPT Act and its rules. MTP Act, which was introduced to check maternal mortality due to unsafe abortion, has rather led to the increase in the same because of woman being forced by law, having no other options than to go for back- street unsafe abortions which pose a greater risk to her health[51]. It has been argued that India being the world's largest democratic State should give freedom to the individuals rather than dictating its citizens, who are supposed to be the real sovereign, under welfare State[52]. The MTP Act and rules permits abortion to be carried out only by a limited number of Health care providers, according to law, abortion can be provided by recognized medical practitioners and under hospitals established or maintained by the State or approved by the State or District level authority. The insufficient number of trained, legally recognized medical practitioners contributes to the denial and delay in safe abortion[53]. Research has shown that there is a shortage of trained staff and inadequate supplies in India causing an absence of abortion services in primary health centers[54]. The MTP Act sec 3 and rule 3(b) does not include unmarried and single woman within its preview. It is discriminatory against unmarried and single woman. The law further imposes parental/guardians for anyone under the age of 18. The law has established a third-party medical board authorization for such abortions. Abortion depends on the direction of the medical board and not the woman. Further, we have insufficient infrastructure facilities, lack of awareness, social stigma, confidential care that act as serious barriers to the proper implementation of the MTP Act. The present legal system on Abortion has provided more barriers than assurance to fundamental Human rights, especially for pregnant woman.

The MTP (Amendment) Act of 2021 has brought significant changes to the old Act. However, it is impossible to ignore the fact that The MTP (Amendment) Act of 2021 completely ignores right to abortion as a part of a pregnant woman’s liberty, bodily integrity and right to privacy. In this regard, a woman still has to get permission from the registered medical practitioner for abortion as prescribed by the Act. At no point in time under the MTP Act can a woman choose to have an abortion according to her choice. This leads us to the question that why the State ignores a pregnant woman’s reproductive rights in case of abortion? How can an unborn life be more important than an already existing life? All though the Supreme Court of India has time and again interpreted a woman’s reproductive rights as part of her liberty and right to privacy. The legislators while legislating have time and again completely ignored the fact that right to abortion has been recognized as a right to privacy. This in turn leads to a growing illegal and unsafe abortion. Women have no choice but to seek an illegal and unsafe abortion. Until and unless the MTP Act recognizes the right to privacy of a pregnant woman, the Act will never achieve the aim of controlling morbidity and mortality due to unsafe abortion.

Through interpretation of the MTP Act, we can say that since abortion is allowed only up to 24 weeks of pregnancy it is after that the compelling State interest to protect the health and safety of the woman and the right of the unborn child arise. The only point of difference that continues to exist is that the present MTP Act continues to regulate abortion when it is considered technically safe and the unborn child has no value i.e. before 24 weeks of Pregnancy. A Woman’s womb is under the absolute control of the State. After 24 weeks of pregnancy when the compelling interest of the State arises the State interest is acceptable. However, State control over the womb of the pregnant mother before 24 weeks is a complete violation of a pregnant woman’s human rights.

1. S.G Kabra, Abortion in India: Myth and Reality 11 (Rawat Publications, Jaipur. 2013).

2. Medical termination of Pregnancy (Amendment) Act, 2021, S 2 (e).

3. Kathryn G. Milman, Abortion Reform: History, Status, and Prognosis, 21 Case Western Reserve Law Review 540 (1970).

4. Ibid.

5. Constantin-Iulian Damian, Abortion from the perspective of the eastern religion: Hinduism and Buddhism, 8 Romanian Journal of Bioethics 128 (2010).

6. Kanishka and Vaishali sharma et al, Law on Abortion,3 Jus Imperator, 3(2020)

7. Siddhivinayak S Hirve, Abortion Law, Policy and Services in India: A Critical Review, 12 International Journal on Sexual and Reproductive Health and Rights 123 (2004).

8. A.E Michel, “Abortion and international law: the status and possible extension of women's right to privacy” 20 J. Fam. L. 241 (1981).

9. Ibid.

10. Griswold vs.. Connecticut, 381 U.S. 479(1965)

11. Mary Ann Glendon, A World without Roe: How Different Would It Be?, 19 The Hastings Center Report, 30 (1989).

12. Stephen A. Siegal, The Origin of the Compelling State Interest Test and Strict Scrutiny by, 48 The American  Journal of Legal History 355(2006).

13. Sweezy vs. New Hampshire, 354 U.S. 234 (1957)

14. Supra note 12 at 364

15. Roe vs. Wade, 410 U.S. 113 (1973)

16. Marilyn B. Cane, Whose Right to Life? Implications of Roe vs. Wade, 7 American Bar Association 422 (1973).

17. Carol Edelson, Supreme court abortion ruling, 3 off our backs,Inc, 112(1973).

18. Christyne L. Neff,  womb, and bodily integrity, 3 Yale J Law Fem, 326 (1991).

19. Phillip Montague, A Child's Right to Privacy, Public Affairs Quarterly, 20(1988).

20. Universal Declaration of Human Rights, 1948 Art 2, 3,5, 12, 25, 27.

21. International Covenant on Civil and Political Rights, 1966 Art 2.1,3,6.1,7,9.1,15(b),17

22. Covenant Economic, Social and Cultural Rights Covenant, 1976 Art 2.2,3,12

23.  Convention on the Elimination of all forms of discrimination against Woman, 1979 Art 1,2,3,5,11.1(f), 11.3, 12, 14.2(b), 16.1(e)

24. J S Mill, On Liberity 4 (Batoche Books, Ontarrio, 1859).

25. Id at 12.

26. Id at 18.

27.  Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948.

28. The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly through GA. Resolution 2200A (XXI) on 16 December 1966, and in force from 23 March 1976 in accordance with Article 49 of the covenant.

29. M.P Sharma vs. Satish Chandra, 1954 AIR 300.

30. Kharak Singh vs. State of U.P, 1963 AIR 1295.

31. ADM Jabalpur  vs. Shivakant Shukla, AIR 1975 SC 1378

32. Govind sv. The State of M.P. and Ors. AIR 1975 SC 1378.

33. Minerva Mills Ltd. & Ors vs Union Of India & Ors, 1980 AIR 1789.

34. Maneka Gandhi vs. Union of India, 1978 AIR 597.

35. R. Rajgopal vs. State of Tamil Nadu, AIR 1995 SC 264

36. People's Union for Civil Liberties vs. Union of India, (1997) 1 SCC 301.

37. K.S Puttaswamy vs. Union of India, (2017) 10 SCC 1.

38. Suchitra Srivastava vs. Chandhigarh Administration, (2009) 9 SCC 1.

39. Planned Parenthood vs. Case, 505 U.S. 833 (1992).

40. Dobbs vs. Jackson Women’s Health Organization,2022 U.S. LEXIS 305.

41. Apurva Vishwanath, “Supreme Court abortion ruling” The Indian Express, Sept. 30, 2022.

42. The Medical Termination of Pregnancy (Amendment) Act, 2021 S 3 (2) a, 3 (2) b.

43. The Medical Termination of Pregnancy Act, 1971 S 6.

44. The Medical Termination of Pregnancy Act, 1971 S 7.

45. The Medical Termination of Pregnancy (Amendment) Rule, 2021 R 3.

46. The Medical Termination of Pregnancy (Amendment) Rule, 2021 R 3B.

47. The Medical Termination of Pregnancy (Amendment) Rule, 2021 R 5.

48. The Medical Termination of Pregnancy (Amendment) Rule, 2021 R 6D.

49. The Medical Termination of Pregnancy Act, 1971 S 5 A (1).

50. Piyal Chatterjee, Right to Abortion is a basic Human Right: Special reference to India (2015) (Unpublished Conference: 2nd International Women’s Rights Assembly, New Delhi).

51. Asween Kaur, Mother and the fetus: A Socio-legal Conflict, Bharati law Review, 288 (2016).

52. Id at 293.

53. Akinrinola Bankole, Susheela Singh et el, Reasons why women have induced abortion: evidence from 27 countries, 24 International Journal on  sexual and reproductive health, 102(1998).

54. Population Council, Unintended pregnancy and abortion in India: country profile report, India Report, (March, 2014).