The issue of abortion has consistently sparked considerable debate and conversation. Some individuals advocate for the rights of mothers or pregnant women to choose to continue with the pregnancy or terminate it; conversely, others believe that a foetus is more than just a mere collection of cells, viewing it as a living entity with its own life, deserving of individual rights and freedoms separate from those of the pregnant woman. A notable instance when personal freedoms were at risk was when women’s access to safe abortion services was jeopardized. For many years, until 1971, India deemed abortion criminal and referred to it as “intentionally causing miscarriage.” Voluntary abortion, except in cases where the pregnant woman’s life was endangered, could result in a punishment of up to three years in prison, a monetary fine, or both.
Nevertheless, the alarming rates of maternal fatalities and deaths from illegal abortion procedures—often carried out in unsafe, unsanitary conditions by unqualified practitioners—prompted the Ministry of Health and Family Welfare to take action. This led to the implementation of the Medical Termination of Pregnancy Act in 1971, which outlined the legal framework for abortion and addressed critical inquiries regarding who is permitted to terminate a pregnancy, the locations where it may occur, and the necessary consent and opinions required for the procedure. The Act underwent amendments in 2002 and 2003, with proposed changes also considered in 2014. In India, the legal system regulating abortion is heavily influenced by a cis heteropatriarchal framework that employs a punitive criminal justice system to exert control over pregnant individuals.
The Indian Penal Code’s Sections 312-318, along with the POCSO Act and the PCPNDT Act, create a criminal framework that fosters state surveillance, which intimidates both abortion providers and those seeking abortions. Legal cases prove that criminalization has a very harmful “chilling effect” on both the providers of healthcare and the seekers of abortion. Illegal abortions impose a stigma that threatens to curtail individual reproductive decision-making authority by forcing individuals to make harsh choices between safe but prosecutable procedures, unsafe abortions with possible health consequences, or continuing an unwanted pregnancy. All these factors affect disadvantaged groups callously. In this article, I examine the present consequences through a feminist lens and argue how these punitive policies cannot resolve some of the structural barriers in the way of fulfilling reproductive rights.
Women and their rights to abortion- A guide to the right to choose
Women and their ability to make decisions regarding their sexuality, fertility, and reproduction are aspects that have rarely, if ever, been considered in the creation of abortion-related policies. Abortion stands as one of the most contentious ethical dilemmas because it involves the issue of taking a human life. Typically, when examining the traditional arguments for and against abortion, we observe that legal and religious reasoning often underpin each side, respectively. Proponents of abortion advocate the idea that it embodies a woman’s “right to choose” whether to continue or end her pregnancy. Opponents of abortion commonly base their arguments on religious beliefs, which serve as the main foundation of their collective resistance to abortion.
Historically, women have utilized various methods of birth control and abortion. These practices have sparked fierce moral, ethical, political, and legal discussions since abortion transcends a medical/technical concern and represents “the fulcrum of a much broader ideological struggle.
This viewpoint is backed by the historical context of international human rights treaties. Throughout the discussions that led to the creation of various international and regional human rights agreements, only a limited number of nations suggested including provisions that would recognize the right to life from the moment of conception. In most instances, these suggestions were turned down. the United Nations have. While the declaration reflects the collective understanding of the international community regarding human rights, it does not impose any legal obligations.
The International Covenant on Civil and Political Rights (ICCPR) reinforces the right to life stated in the declaration. The law shall protect this right. In contrast to the term “person,” which, due to judicial interpretation in the United States (US), has excluded the unborn from protection, “human being” is a scientific term for a living human organism. Therefore, one perspective holds that the fundamental human rights documents oppose abortion; they certainly do not establish a right to abortion.
Feminism and Women’s Right to Abortion
Equality, which is the fundamental objective of feminism, is central to the Indian Constitution. Nevertheless, there is a significant gap between this constitutional promise and the actual situation. Issues such as unequal wages, inadequate representation in public sectors, and restricted educational opportunities highlight the urgent need for reform. The Indian judiciary has made notable contributions toward this issue. A prime example is Anuj Garg v Hotel Association of India (1). This case questioned the constitutionality of Section 30 of the Punjab Excise Act, a law from the colonial era.
The contested Act prohibited individuals licensed to sell liquor from hiring women in establishments where liquor or intoxicating substances were consumed by the public. In 2008, this case reached the Supreme Court after being overturned by the Delhi High Court in 1999. The Government of Delhi contended that the law aimed to shield women from the hazards of working in the liquor sector. The Supreme Court firmly dismissed this argument, ruling that the law fostered ‘invidious discrimination that perpetuated sexual differences.’ In landmark rulings such as Anuj Garg, Shayara Bano (2), and Navtej Johar (3), the Court has rightly rejected the idea of inherent differences and endeavoured to view gender-based discrimination as a construct of socio-cultural institutions. However, the case of Air India v Nargesh Meerza (4) presents an alternative (and more troubling) perspective on sex discrimination.
This case challenged Regulations 46 and 47 of the Air India Employees’ Service Regulations, which facilitated the unequal treatment of male and female flight attendants concerning promotions, retirement age, and service termination. In Nargesh Meerza, the ‘separate-spheres theory’ legitimized discriminatory practices by assigning family planning, child-rearing, and population management as women’s specific duties.
Thus, the entire discussion surrounding gender equality reduces to the principle of self-determination. Presently, the most relevant issue concerning women’s right to self-determination pertains to abortion laws. As Raj Pal Mohan states in ‘Abortion in India’, “Abortion has been part of Indian civilization since its inception. Despite the universality of abortion, all societies endeavour to regulate it through cultural standards” (5). Ancient Hindu texts regard abortion as sinful. Drawing from these texts, a predominantly patriarchal Indian society exerted control over women, denying them their right to choose. For example, Manu in his Dharmashastra asserted that where women are disrespected, no rituals can achieve the desired outcomes, equating the denial of abortion with a woman’s dignity. These historical contexts reflect the evolution of abortion laws in India.
Initially, abortion was deemed a criminal act for both the woman and the abortion provider, except in cases where it was essential to preserve the woman’s life. To address these issues, the Shah Committee, chaired by Shantilal Shah, was formed in 1964. The purpose of this committee was to propose changes in the abortion legislation. In 1966, having thoroughly examined the socio-cultural, legal, and medical dimensions of abortion, the committee put forward several recommendations to liberalize the abortion laws.
The Medical Termination of Pregnancy Act of 1971 was established based on the Shah Committee’s recommendations. The MTP Act permitted (conditional) abortions performed by a medical professional, provided it was conducted in good faith and by the Act’s stipulations and within the first 12 weeks of pregnancy. If two registered medical practitioners collaborated, the pregnancy duration could be extended beyond 12 weeks, but not surpass 20 weeks. However, upon analyzing these laws, it becomes clear that they primarily view women as mothers. This perspective faces extensive critique from Gauri Pillai. Essentially, Pillai argues that the MTP Act permits abortion only under exceptional situations.
However, upon examining these laws, it becomes clear that they primarily view women as mothers. Gauri Pillai critiques this standpoint extensively. In essence, Pillai contends that the MTP Act permits abortion only under special circumstances, suggesting that, as a default, women should carry their pregnancies to term. The Act does not recognize abortion as an autonomous right, instead tying it to specific conditions. Furthermore, the Act frames abortion as a medical procedure (as indicated by the name itself—Medical Termination of Pregnancy) rather than using the term ‘abortion’. The Act’s Statement of Reasons and Objects characterizes abortion as a ‘health measure’ intended to prevent ‘wastage’ of life. It prioritizes the viewpoints of medical practitioners, regarding them as “co-decision makers alongside women.” “Women’s choices to have an abortion can be disregarded if the Medical Board concludes that carrying on with the pregnancy is ‘less hazardous’ than terminating it at that point. Consequently, the medical risks associated with termination become the foremost concern when decisions are made under the Act,” writes Gauri Pillai.
Thus, a detailed examination of India’s abortion legislation shows how inadequately it aligns with the Constitution’s vision. The Constitution was meant to catalyze substantial social and cultural transformation. The restrictive nature of abortion laws does not correspond to the Constitution’s transformative ethos. According to these laws, the ability of women to bear children is interpreted as a mandate that they must do so. In this context, women seeking abortion are regarded similarly to any other patients. Abortion laws should empower women to rectify historical injustices and reclaim authority over their bodies and lives. Ongoing efforts are necessary in the realm of abortion legislation. The mere existence of legal protective measures does not guarantee access to safe abortion services. The India Facility Survey reveals that by 2005, 94% of primary health centres and 69% of community health centres were not offering abortion services. Even today, the financial burden of abortion is a significant issue for rural and lower-middle-class women. While abortion procedures in the public sector are ostensibly free, they incur additional expenses such as travel or loss of daily wages. The private sector establishes its pricing, which is often prohibitively expensive and out of reach for the women who need it most.
Conclusion
Additionally, abortion remains a stigmatized subject within Indian society. Women often feel pressured to proceed with their pregnancies. As previously noted, pregnancy and childbirth are closely associated with the patriarchal notion of ‘family honour’. Most importantly, the interpretation of abortion laws fundamentally contradicts the ideals of Constitutional Morality. Therefore, ongoing interventions, reforms, and legislative changes are necessary until all these obstacles are decisively eliminated. India’s abortion laws exemplify the disparity between the law as it is written and its application in practice.
-Hridya Sharma
REFERENCES
[1] Anuj Garg v Hotel Association of India, (2008) 3 SCC 1
[2] Shayara Bano v Union of India, (2017) 9 SCC 1
[3] Navtej Singh Johar and Others v Union of India, (2018) 10 SCC 1
[4] Air India v Nargesh Meerza, (1981) 4 SCC 335
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