NATIONAL UNIVERSITY OF STUDY AND

RESEARCH IN LAW

JURISPRUDENCE

ABORTION LAWS AND POLICIES IN INDIA- A STUDY FROM

SUBMITTED BY: - SUBMITTED TO: -

AYUSH UNNIKRISHNAN. DR RABINDRA KR. PATHAK

ABSTRACT

Debates surrounding the topic of abortion have persisted throughout history and continue to be a
subject of contention in contemporary discourse. The issue of abortion is multifaceted,
encompassing various domains such as religion, ethics, medical, and legal frameworks. The issue
of abortion rights is a pertinent social concern that grants women the freedom to exercise
autonomy and make independent decisions on their reproductive choices. This study aims to
examine the human rights implications associated with abortion, with a specific focus on the
Indian Constitution and its legal stance on abortion legislation. Additionally, it seeks to explore
the perspectives of different legal professionals and shed light on the social and moral
complexities surrounding abortion within Indian society.

RESEARCH QUESTION

1. How does the Indian Constitution address abortion, and what legal rights are involved?
2. What is the current legal stance on abortion in India, and how has it changed over time?
3. How are human rights linked to abortion under the Indian Constitution, especially regarding women's
autonomy?
4. How do legal professionals in India view and interpret abortion laws, and what role do they play in
shaping them?
5. What are the societal and moral complexities surrounding abortion in India, and how do they impact
the legal landscape?

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INTRODUCTION

The term "abortion" encompasses the cessation of a human pregnancy at an early stage,
encompassing both spontaneous occurrences such as miscarriages, as well as induced
terminations through surgical or pharmacological means.1 The user's text is already academic. In
contemporary discourse, the term "abortion" commonly denotes the termination of a pregnancy
through pharmaceutical or surgical means. In discussions about criminal activities, the term
"abortion" typically denotes the deliberate termination of a pregnancy. Regardless of the
terminology used by medical professionals, it is important to note that under the law, miscarriages
or spontaneous abortions are not classified as induced abortions. The issue of abortion rights is a
subject of intense debate in India, as it is in numerous other nations. Approximately 33% of
women globally will have the termination of a pregnancy at some stage during their lifetime.
Reproductive health care of this type is widely recognized and deemed essential. The user's text
is too short to be rewritten academically.2

The consideration of abortion issues necessitates immediate attention to various factors, including
recent legislation, religious convictions, societal conventions, emotional states, familial
circumstances, cultural practices, and interpersonal connections. Human rights organizations
have consistently asserted that the imposition of stringent regulations on abortion contravenes
established human rights norms. The user's text is too short to be rewritten academically.3 The
issue of abortion presents challenges inside the legal framework, as well as in the realms of
morality and ethics. The fight can be broadly categorized into two primary factions: individuals
who advocate for the preservation of life and those who endorse the practice of abortion.
Advocates of the pro-life stance contend that the termination of a foetus is a form of societal
demise. Advocates of reproductive autonomy, conversely, contend that women should possess
agency over their own sexual lives, asserting that no entity, including governmental authorities,
should wield authority over them.

According to the renowned philosopher J.S. Mill, it is imperative to recognize the equal worth of
women due to the inherent value of their skills, which are capable of complementing those
possessed by males. It is posited that the cessation of gender-based discrimination against women

1
DWORKIN, RONALD, FEMINISM AND ABORTION 27 (The New York Review of Books 1993).
2
19 BERER, MARGE, ABORTION LAW AND POLICY AROUND THE WORLD: IN SEARCH OF DECRIMINALIZATION 13
(Health and Human Rights 2017).
3
3 RAVI SINGH CHHIKARA AND KARMAN KAUR, THE CONFLICTING JURISPRUDENCE BEHIND THE LAWS ON
ABORTION, INTERNATIONAL JOURNAL OF LAW AND JURISPRUDENCE 13 (2020).
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will thereafter lead to the attainment of equality.4 The preservation of access to abortion is deemed
significant in safeguarding constitutional principles such as equality, respect, and bodily
autonomy. The user's text is too short to be rewritten academically. The decision made by a
significant number of women globally to terminate their pregnancies annually through the
procedure of abortion, involving the removal of the developing embryo or foetus from the uterus
before attaining viability, can be comprehended with relative ease. The prevalence of abortion
exhibits regional and national disparities, albeit maintaining an approximate global average of 28
per 1000 women within the reproductive age range. Approximately 50% of all births are
unplanned, and 50% of these unintended pregnancies result in abortion. The user's text is too brief
to be rewritten academically. Abortion laws vary significantly across different regions, exhibiting
considerable diversity. However, it is noteworthy that nearly all jurisdictions permit abortion
under specific circumstances. There exists a total of six nations globally that have implemented
comprehensive bans on the practice of abortion.

The practice is legally permissible in most affluent nations with minimal or nonexistent
limitations. Approximately 125 nations have restrictions on abortion, typically permitting women
to undergo the procedure only under specific circumstances. These circumstances may include
cases where abortion is deemed necessary due to socioeconomic factors, situations where the
woman's medical or mental well-being is endangered, or instances where fatal foetal
abnormalities are present. This article will examine the legal aspects of India's abortion
regulations and policies.

4
Id. at 2.
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ABORTION AS A HUMAN RIGHT

The Statement of Universal Human Rights is called "a common standard of achievement for all
peoples and nations" in its preamble. It also says that "the peoples of the United Nations have
reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person,
and in the equal rights of men and women."5 Even more, the second article says that these rights
and freedoms belong to everyone, just because they are human: "Everyone is entitled to all the
rights and freedoms set out in this Declaration, without any distinction of any kind."6 The third
item talks about the first right that everyone has: "Everyone has the right to life." All other human
rights are based on the right to life.7 The statement expresses international human rights views
but doesn't impose legal obligations.

The International Covenant on Civil and Political Rights (ICCPR) protects the right to life in the
statement. It says in the Covenant, "Everyone has the right to life." This right is protected by the
law. No one shall be killed without a good reason.8 The agreement says that everyone has the
right, which is important. In the field of science, a "human being" is a live person. So, some
people think that the basic human rights texts are against abortion but don't give it away.9 The
ICCPR says that "every human being" has the right to life. Other rights are written as "everyone"
or "every person." 'Every human being' could include the unborn child, but different words are
used, so it's not clear.10 There isn't any solid research on the claim above, but everyone knows
that making abortion illegal can affect the right to life. This is supported by the fact that young
women have killed themselves because abortion is illegal, which goes against the right to life.
Laws against abortion that lead to deaths that could have been avoided raise questions about the
right to life.11 To make sure that men and women have the same access to health care services,
including family planning, Article 12 of the CEDAW Convention says that "States parties shall
take all appropriate measures to eliminate discrimination against women in the field of health
care."12

5
UNIVERSAL DECLARATION OF HUMAN RIGHTS, http://www.un.org/Overview/rights (last visited on Nov 16, 2023).
6
Id. at 2.
7
William Saunders, The ABC of International Right to Abortion, HUMAN LIFE REVIEW (Nov. 16, 2023, 9:29 AM)
http://www.humanlifereview.com/index.php/archives/52-2010-summer/113-the-abcs-of-an-international-right-
toabortion.
8
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Art. 6.
9
Ibid.
10
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL Rights Art. 1.
11
BHAVISH GUPTA MEENU GUPTA, SOCIO CULTURAL ASPECT OF ABORTION IN INDIA: LAW, ETHICS AND PRACTICES
140, (ILI law Review 2016).
12
CONVENTION ON ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN Art. 12.
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A STUDY OF THE CONSTITUTION AND THE LAW REGARDING THE

Abortion is one of the most controversial subjects in medicine. Article 21 of the Indian
Constitution says that everyone has the right to an abortion, to live with self-respect, and to make
their own decisions if they don't break the law.13 Article 21 of the Indian Constitution says that
everyone has the right to life and personal freedom. There is a right to life for all Indians,
including women. Women can choose what to do with their bodies, including having an
abortion.14

Under Sections 312-316 of the Indian Penal Code of 1861, having an abortion was a crime until
1971. Abortion may occur spontaneously or be induced. Due to the prevailing religiosity and
societal norms in India before 1971, the legal framework in place prohibited coerced abortions.
When a pregnancy terminates without any external intervention, it is referred to as a spontaneous
abortion.15

The Medical Termination of Pregnancy Act, 1971, on the other hand, approved by the Shanti Lal
Shah Committee in 1971 made abortions legal in some situations. The woman who had the
abortion and the person who did it could both be punished under the Indian Penal Code and the
Code of Criminal Procedure, but only if the pregnancy was life-threatening. The committee
looked at material from around the world and in the United States. They suggested that abortion
should be legalized in 1966, which led to the MTP Act.16

13
INDIA CONST. art. 21
14
GARIMA TRIPATHI, Legacy and Legality of Abortion in India and in USA, SSRN Available at:
https://ssrn.com/abstract=3636238 (last visited, Nov. 16, 2023).
15
Supra. at 17.
16
20 AMAR JESANI AND ADITI IYER, WOMEN AND ABORTION 27 (Economic and Political Weekly, 1993).
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MEDICAL TERMINATION OF PREGNANCY ACT, 1971

After the Roe v. Wade17 case, more and more countries in the US and Europe started to allow
abortions. Since the 1970s, many countries have made it easier to get an abortion in the last thirty
years. In Planned Parenthood v. Casey,18 the US Supreme Court changed the rules from the Roe
case. Now, the law on abortion is based on whether the foetus is viable, not just the strict third
trimester test that Roe case set up. There in India The Central Planning Board of the Government
of India first came up with the idea of a liberal and inclusive rule on abortion in 1964 as a way to
help people plan their families.19 On August 25, 1964, the Central Family Planning Board told
the Ministry of Health that it should set up a group to look into whether abortion laws were
needed. The suggestion was accepted in the second half of 1964, and a committee was made up
of people from different Indian state and private organisations. The group is known as the
Shantilal Shah Committee. The committee's report came out on December 30, 1966, after it had
looked at a huge amount of statistical data that was available at the time. Based on this study, the
Indian government passed the Medical Termination of Pregnancy Act, 1971, which made it easier
to get an abortion.

It's important to note that the MTP Act was first put into effect in April 1972 and then changed
again in 1975 to get rid of time-consuming processes for approving places and make services
easier to get. This law was changed twice, once in 2002 and again in 2005. An Act to allow
registered medical practitioners to end certain pregnancies and for other issues related to or
happening at the same time says the Act's preamble.20 This Act has only 8 parts, but they cover a
lot of different topics. For example, they cover when, where, and how a registered medical
practitioner can end a pregnancy. It makes abortion legal in situations where birth control doesn't
work or where the pregnancy will hurt the woman's health or mental well-being. The pregnant
woman must agree to the procedure, unless she is a child or crazy, in which case her guardian
must also agree.21 The Act only lets abortions happen in certain situations. The law lets doctors
end a pregnancy medically up to 20 weeks into it.

The Supreme Court of India has rendered a verdict affirming that the presence of significant

17
Roe v. Wade 410 U.S. 113 (1973).
18
Planned Parenthood v. Casey 505 U.S. 833 (1992).
19
Supra. at 20.
20
MEDICAL TERMINATION OF PREGNANCY ACT , Act of 1971, Preamble (1971).
21
MEDICAL TERMINATION OF PREGNANCY ACT, ACT of 1971, § 3 (1971).
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abnormalities in a baby can constitute a valid legal basis for the medical termination of pregnancy,
irrespective of the foetus surpassing the twenty-week gestational threshold. The proposed
alteration possesses significant implications that may yield substantial consequences in the
forthcoming period. In the legal matter of Ms. X v. Union of India,22 the Supreme Court rendered
a decision permitting a woman who was 24 weeks pregnant because of rape to undergo an
abortion. It is noteworthy to acknowledge that the International Federation of Gynecology and
Obstetrics (FIGO) posits that women bear an ethical responsibility to possess the capacity to
terminate a profoundly deformed foetus. According to FIGO, in such circumstances, it is
imperative that the primary responsibility for determining the termination of a pregnancy rests
with the parents.23 In order to safeguard the well-being of pregnant individuals, numerous
countries have implemented legislation permitting the termination of pregnancies in cases when
the foetus is determined to have a medical condition that poses a threat to the mother's health.

In the year 2020, India is projected to emerge as a prominent global leader in the field of abortions,
potentially serving as a noteworthy exemplar for other nations to follow. The Medical
Termination of Pregnancy (Amendment) Bill, 2020, was passed by the Union cabinet in its
entirety. This bill seeks to extend the maximum duration of pregnancy permissible for termination
from 20 weeks to 24 weeks. Furthermore, an amendment was made to the legislation, specifically
modifying the provision which previously restricted abortion access to "only married women or
their husbands" in cases when contraceptive methods proved ineffective. The revised language
now extends this right to "any woman or her partner." There is a prevailing belief among
individuals that this proposed alteration will grant women the autonomy to exercise agency over
their reproductive capacities, so enabling them to make informed decisions regarding childbirth.24

22
Ms. X v. Union of India Writ Petition (C) No. 593 of 2016 .
23
Id. at 25.
24
Supra at 17.
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ABORTION FROM JURISTS'S POINT AND MORALITY

John Finnis came up with the natural law argument. His theory is based on Catholic ethics, but
he doesn't use religion or metaphysics in his case.25 . Like Catholics, Finnis believes the foetus
is created as a fully-fledged person. Medical evidence supports his position. He says this because
he thinks that the foetus already is a person at conception since the only things that make a foetus
different from a fully grown person are growth and development.26

Dworkin's goal in Life's Dominion is to show the middle ground that supports both controversial
values: the woman's right to choose for herself and the fetus's potential to become a person. To
settle the abortion discussion, Dworkin makes an interesting and new argument that says abortion
can't be solved because of the traditional view that drives the debate. Most people think that
abortion is about whether a baby is a person. It's not where Dworkin begins his argument. He
argues the abortion argument is motivated by conflicts over what is holy, not personhood.
Dworkin says, "The opponents of controversy hide how much they agree on in terms of
background concepts with needlessly divisive rhetoric." Dworkin says that most people already
knew what he thought about abortion, which is what the first part of his case is mostly about.

Abortion affects politics, morality, economy, and society. It has good and terrible consequences
on society. Low literacy and poverty are two of India's many societal issues. The MTP Act's
effects should be looked at in the framework of how society, values, and attitudes have changed.
Global ethical debates have long surrounded the legality of stopping unplanned pregnancies. This
led to the idea of passing laws that would balance the ethical and legal points of view. In India,
there are still social problems with medical abortion, even though the government and courts are
in charge of it. Lots of people think that ending a pregnancy with medicine is wrong, but today it
is a woman's right that can't be taken away.

25
6 MICHEAL DA FREEMAN, LLOYD’S INTRODUCTION TO JURISPRUDENCE 132 (Sweet & Maxwell 2001).
26
JOHN FINNIS, THE FRAGILE CASE FOR EUTHANASIA: A REPLY TO JOHN HARRIS (Cambridge University Press
1995).
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CONCLUSION

We are on the way to loosening abortion rules, which has been a unique trend over the last fifty
years. It is a tough and emotional choice for a woman to decide not to have a child. Besides being
physically tired, pregnancy also causes a lot of mental turmoil. Even so, if a woman decides to
end her pregnancy, she shouldn't have to deal with a judgmental third party that makes her feel
bad about herself. Everyone who wants an abortion should be able to get good care that is tailored
to their needs. One way to do this is to make safe abortion services easier to get to and more
affordable. This could be done by getting more trained people and better-equipped abortion
clinics and using more human, financial, and material resources to make sure women get good
care and are safe during the process. There is no question that Article 21 of the Indian Constitution
covers the Right to Abortion. It also covers the Right to live with self-respect and make free
choices if they don't get in the way of the current legal system. Based on the recommendations of
the Shanti Lal Shah Committee, the Medical Termination of Pregnancy Act, 1971 (MTP Act) was
passed, which allowed forced abortions in some situations. Even though India has laws and courts
that keep an eye on medical abortion, there are still social problems with it. Having an abortion
brings up a lot of social, moral, and financial problems. Based on this, we can say that a mother's
only right is to end a pregnancy.27 It is the law's job to protect both the mother's freedom and
independence and the life of the unborn child.

27
PATCHESKY ROSALIND POLLACK, ABORTION AND WOMEN'S CHOICE: THE STATE, SEXUALITY AND
REPRODUCTIVE FREEDOM 13 (Northeastern University Press, 1991).
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