Explained | How Did Abortions Go From Being A Crime To Being A Right In India?

India's abortion laws have come a long way from 1862 when abortion could get you as much as 7 years in jail.

The change in law has been hailed by activists and women as a landmark judgment that will affect the lives of millions in the coming years.

(Photo: The Quint)

In June 2022, the US Supreme Court overturned the decades-old Roe v Wade judgment, which afforded abortion rights to all women, making the matter subject to state laws.

But on our own home turf, on 29 September, the Supreme Court ruled that all women are entitled to abortion rights, whether single or married.

It went on to add that this right to access safe abortions would also extend to trans women and wouldn't be limited to cis-persons, regardless of their marital status.

The change in law has been hailed by activists and women as a landmark judgment that will affect the lives of millions in the coming years.

But abortion rights weren't always so free in India. The law has evolved over a matter of decades — nay — centuries. How has India treated abortions over the years? How has the abortion law evolved over time?

And what rights does the Supreme Court's judgment afford to the women of India?

The Indian Penal Code – The First Laws on Abortion

India's first codified legislation on the reproductive rights of women was a part of the Indian Penal Code drafted under British rule, in 1860. The law, enshrined under Section 312, punished abortions with a prison sentence or a fine, or both.

The section says:

"Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

What does this section mean? In simple terms, it says that anyone who causes a miscarriage, whether that's a medical abortion or an illegal/unsafe abortion, or causes the termination of a foetus in any other way, can be punished with three years in jail, a fine, or both.

The only exception to this was "causing miscarriage in good faith to save the life of the woman". Which means an abortion that's done to avoid serious medical complications to the life of the woman.

It goes on to add:

"...and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

What does "be quick with child" mean? Well, the term refers to a later stage of pregnancy, where the foetus can be felt to be moving around.

In contemporary terms, this would be the same as punishment for a very late-stage termination of pregnancy - well beyond the prescribed safe limit of 20-24 weeks.

The old law extends the punishment to a sentence of as much as seven years, or fine, or both, for a late-stage termination of pregnancy.

So, in simple terms, getting an abortion and performing an abortion were both crimes under this law.

The Road To Codified Reproductive Rights

It would be over a hundred years before India created a separate law for abortion rights.

In 1964, the Central Government constituted the Shah Committee to investigate the social, cultural, legal, and health implications of decriminalising abortion in India.

This was done because of high maternal mortality rates from unsafe abortions. The Shah Committee found that the majority of women seeking abortions were married and under no socio-economic pressure to terminate their pregnancies.

In 1966, the Shah Committee submitted its report, recommending decriminalisation of abortions, adding that it would save thousands of women's lives.

The Medical Termination of Pregnancy Act, 1971

After the Shah Committee's recommendations, the Medical Termination of Pregnancy Act was drafted and passed by Parliament in 1971.

The term 'medical termination of pregnancy' was opted for by the government to minimise opposition on religious and cultural grounds.

The law came into effect from 1972, in all parts of India except for Jammu and Kashmir.

In 1975, the rules for medical termination of pregnancy were established, to guide safe abortions.

The MTP Act offers several protections and rights for abortion. These include:

• Allowing the termination of unwanted pregnancies for up to 12 weeks, and with a second doctor's approval, up to 20 weeks.

• Protection of registered allopathic medical practitioners from legal or criminal proceedings for injury caused to a woman during an abortion procedure, given that the abortion was done according to the provisions of the MTP Act.

• Allowing abortions on the grounds of grave risk to physical or mental health of the woman, unplanned pregnancies, pregnancies resulting from rape, or if there is a substantial reason to suspect that the child may be born with deformity or disease.

• The law allows all government hospitals to perform abortions, but only with the approval of a private abortion facility as well.

Indian Abortion Laws in the 21st Century

In 2003, the Indian Parliament updated the MTP Act, to provide faster, easier, and better access to safe abortions. To this end, after careful consultation, it passed The Medical Termination of Pregnancy (Amendment) Act 2002, and amended Rules and Regulations 2003.

Some of the new rules included:

Decentralised regulation of abortion facilities from the state level to district committees to allow faster and more efficient authorization and setup of abortion facilities.

Punishment for running unapproved or unlicensed abortion facilities, with up to seven years imprisonment.

However, limitations still existed in the law, namely the implication under section 3 of the law that abortions could only be administered to married women. It states, “Where any pregnancy occurs as a result of failure of any contraceptive device or method used by any ”married’ woman or her husband.”

The Present State of Abortion Laws in India

The MTP Act was amended again in 2021, to allow medical termination of pregnancies for up to 24 weeks for special categories of women. The law earlier did not allow medical termination beyond 20 weeks.

The amendment allowed this special treatment for survivors of sexual abuse, rape survivors, minors, incest, and in the case of disabilities of the woman. It also added that if a foetal disability was detected by a board of specialists, the abortion could be performed at any point with no limit on gestation period.

The order, by a Supreme Court bench presided by Justice DY Chandrachud, on 29 September 2022, extended the protection of the MTP act to include both "unmarried and married women".

The change in law has been welcomed by activists and women across the country, who have hailed it as a victory for women's reproductive rights.