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Abortion, meaning the termination of pregnancy, was considered a sin in India for a long time. Till 1971, intentional miscarriages were penalized under Section 312 of the Indian Penal Code, 1860. The only exception granted was when the abortion was carried out to save the mother’s life. Otherwise, the woman undergoing abortion and the one availing of the service were both penalized.
As time passed by, ideologies and technologies changed. By the 1960s, 15 countries had legalized abortion; it was when India started making deliberations on legalizing abortion. The alarming rate of abortions taking place put the government of India on alert. Soon a bill was introduced in the parliament to address this issue and passed in 1971 as the Medical Termination of Pregnancy (MTP) Act.
The case of Suchita Srivastava and another v Chandigarh Administration held that Article 21 of the constitution guarantees the right to life and personal liberty, which has a broader dimension that extends women’s liberty to make reproductive choices; the MTP Act ensures the same. The act provides the termination of certain pregnancies by registered medical practitioners and permits the termination of pregnancy under certain conditions:
the pregnancy can risk the life of the mother or can result in a grave injury to her
the pregnancy can cause risk to the child, if born or dead, would be physically or mentally handicapped
the pregnancy has been caused due to rape (presumed to cause grave injury to the mental health of the woman)
the pregnancy is the result of the failure of contraceptives used by a married woman or her husband (presumed to cause grave injury to the mental health of the woman)
The conditions mentioned above must be fulfilled before 20 weeks between the period of conception and birth; this period is known as the gestation period. Along with these conditions, consent has a significant role and must be documented as per the provisions. Consent can only be given by
the mother who will be undergoing an abortion, or
the guardian, in case of a minor or a mentally ill woman for termination of pregnancy.
Abortion has been legal in India for half a century now, but only a few of them are done safely. The reasons majorly being the social shame that encompasses abortion and the lack of awareness about the provisions of law. The cases of unsafe practices are increasing and are taking a toll on women’s health. The MTP Act offers safe abortion procedures while protecting women’s liberty to make their reproductive choices and the public interest. In a nutshell, abortion is legal in India. However, its validity is restrictive to the provisions of the MTP Act, 1971.
For a more detailed understanding, refer to the case study of “Suchita Srivastava & Anr vs. Chandigarh Administration” by clicking the link below.
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