A LEGAL STUDY ON THE INDIAN WOMEN'S RIGHT TO ABORTION

THROUGH LEGISLATIVE FRAMEWORK AND JUDICIAL

PRONOUNCEMENTS

“No woman can call herself free who does not own and control her body. No woman can call
herself free until she can choose consciously whether she will or will not be a
mother.”― Margaret Sange

With women’s rights increasingly becoming a focal point in public policy discourse in recent
times in India, the talk around reproductive rights of women has formed a key cornerstone of this
discourse. The journey of reproductive health laws, more specifically abortion laws in India has
undergone a sea of changes, with the introduction of the MTP Act five decades ago in 1971,
being perceived as the most significant development in this regard. The struggle for women in
accessing free and safe abortion care and services has been going on since ages, and till today
they do not have the final say in deciding on a matter which is closely related to her personal
choice and their basic right. It is also significant to note that amongst the various rights of a
woman, the right to abortion is increasingly being perceived as one of the most essential and
fundamental of these rights.

Abortion is both a human and a constitutional right, and the dissertation would focus on this
aspect to emphasize on the importance of this procedure for a pregnant women. The need is to
give women with the authority and discretion to decide on when, how and where she wants to
undertake the procedure. The medical advancements over the years has ensured that this
procedure becomes increasingly safe and secure for women, however the inequity in access to
these facilities has been a major stumbling block for the women. The raising of the upper time
limit for undertaking abortion has been a significant feature across all the abortion-related
legislations; however it has done little to take away the discretionary powers being vested on the
medical professionals and the Court.
The critical need to understand this topic and the challenges associated with it is because of the
fact that even though we are in the 21st century, right to abortion as a form of reproductive
autonomy is looked down in India. This dissertation will aim to focus on this right of abortion for
a woman, by closing looking at the important judicial pronouncements made by the Courts. The
study will also look into the various international conventions dealing with abortion and their
applicability in our country. The recent Medical Termination of Pregnancy (Amendment) Act,
2021 will be analysed in detail including its limitations. The study will also focus on how
abortion rights are even more diluted when it comes to minors, the mentally challenged and those
unable to give free consent. The study will also deal with the overlap of the MTP (Amendment
Act), 2021 with the POSCO Act, 2012 and the PCPNDT Act, 1994, and would argue on the need
to make abortion a completely decriminalised procedure.

AIMS AND OBJECTIVES (Shweta)

HYPOTHESIS (Shweta)

RESEARCH QUESTIONS

1. What was the role of the Suchitra Srivastava case on recognising access to abortion as a
constitutional safeguard and a human right?
2. What was the legal framework prior to the 2021 Amendment of the MTP Act?
3. What changes have been noticed in the legal arena post the 2021 Amendment? 
4. How certain categories of people, for instance minors, disabled, and persons who do not
recognise as females, are more deprived in access to abortion services?
5. How the present law is insufficient and there is a need for decriminalization of abortion
to recognise reproductive autonomy?

STATEMENT OF PROBLEM (Shweta)

SIGNIFICANCE OF STUDY ((Shweta)

 RESEARCH METHODOLOGY- (Shweta)

MODE OF CITATION

The OSCOLA citation (4th edition) has been adhered to uniformly throughout the
dissertation.

LIMITATIONS (Shweta)

CHAPTERIZATION

 The first chapter titled “Introduction” provides a brief insight into the main aim
behind the thesis by mentioning the concepts analyzed in the chapters that follow. It
gives an idea to the reader about the contents of the thesis and the main problem at
hand. Further, a short blueprint is provided as to the direction in which this study is
conducted.

 The second chapter, titled “Access to abortion as a human right” delves into the
importance of seeing abortion as a basic human right of a woman, by looking into the
provisions of various International treaties and conventions, with special emphasis being
put on the CEDAW convention. It also briefly delves into the aspect of a woman’s right
trumping the right of an unborn child.

 The third chapter, titled “Constitutional safeguards guaranteeing access to safe abortion”
mainly focuses on the judgments passed by the Apex Court in the case of Suchitra
Shrivastava and Puttaswamy case. The crucial aspect of the inter-relation between
privacy and abortion is looked into in light of the Puttaswamy judgment.
 The fourth chapter, titled “Legislative framework dealing with abortion” would provide a
detailed overview and analysis of the legislations dealing with abortion. The various
provisions of the Indian Penal Code will be looked into. The main emphasis would be
laid on the critical provisions of the MTP Act, and its interplay with the IPC, POSCO Act
and the PCPNDT Act. It would also analyse the newly amended MTP Act of 2021, and
deliberate upon the key advantages and limitations of this Act.

 The fifth chapter titled “Inter-sectionality and abortion” would cover the aspect of how
certain categories of people are more deprived than others. The main focus being put on
three categories of people: minors, disabled people and the people who do not recognise
as woman. The contentious issues of mandatory reporting of minor pregnancies to the
authorities would be discussed along with the rights provided to the disabled people
under the Rights of Persons with Disabilities Act 2016. Finally, the chapter would
conclude by analysing the present situation of the reproductive rights of the trans people
and dissect whether the ground reality has changed for them post the NALSA judgment.

 The sixth chapter titled “Need for decriminalization of abortion to recognize reproductive
autonomy” would base its argument on making abortion a right rather than a privilege.
The restrictive nature of abortion laws preventing the woman from having the final say
on a decision affecting her body would be highlighted to substantiate the need for
complete decriminalization.

 The seventh chapter titled “Conclusion” would provide an overall view of the ground
situation in India. The access to abortion of being a major challenge would be looked into
and the potential solutions in this regard would be deliberated upon.

LITERATURE REVIEW
1. World Health Organization, Safe abortion: Technical and policy guidance for health
systems (2nd edn, WHO 2012).
This handbook prepared by the ‘World Health Organization’ on safe and comprehensive abortion
care provides essential information on the ways to establish and strengthen reproductive health
services, and gives a human rights-based approached to laws and policies in this regard. It also
focuses on the health and economic consequences of unsafe abortions. It provides the policy-
makers, programme managers and health-service providers with the latest evidence-based
guidance on clinical care for abortion.

2. Aparna Chandra, Mrinal Satish, Shreya Shree and Mini Saxena, Legal Barriers to
Accessing Safe Abortion Services in India: A Fact Finding Study (Centre for Reproductive
Rights, 2021).

This field-based fact-finding study undertaken from 2018 to 2021 provides a holistic and a
complete overview of accessing safe abortion care in India. The chapters of this handbook
provides key insights into each and every aspect of abortion, which are significant for
understanding the barriers which exists in accessing abortion facilities in India. It serves as a
major knowledge source for reproductive rights, laws and policies. The important areas dealing
with woman’s consent, third-party authorization, provisions of POSCO and the PCPNDT Act
have been dealt in detail. A proper overview of the recent MTP (Amendment) Act 2021 has also
been provided towards the end of the study.

3. Aparna Chandra and Mrinal Satish, ‘Securing Reproductive Rights in India- A

Casebook’, (Centre for Reproductive Rights 2019).
It provides the most comprehensive handbook on all the important cases related to reproductive
and sexual health and justice in India. The book is divided into 12 easy-to-understand chapters
detailing importance issues related to reproductive rights such as sex determination,
contraceptive information and services, governmental policies, Disability and reproductive
rights, decision-making etc. Each chapter deals with a separate theme and the case laws present
within it, including the issues involved and the final decision of the Courts. The handy
information present within it has helped in clearly deciphering and dissecting the important
judgments of the Courts.
4. Pallavi Gupta, Working Paper: Access to abortion in India: Need to move from
decriminalization to an enabling legislation’ (Health System Transformation Platform, 1
October 2020).
This working paper discusses the journey of the MTP Act starting from its introduction in 1971
till the bringing up of the MTP (Amendment) Bill 2020. It also provides an analysis on the
critical question of whether the MTP Act enables a woman to take decisions related to her body
by examining the legal framework for safe abortion care in India. The author concludes by
highlighting the need to perceive abortion as been present within the rights and autonomy of
woman over their bodies.

5. Status of Human Rights in the context of Sexual Health and Reproductive Health
Rights in India, Country assessment taken for NHRC by Partners for Law in Development and
SAMA Resource Group for Women and Health (April 2018).
This report prepared based on a country-wide assessment taken aid is understanding the aspects
of sexual and reproductive health and well-being in India. The report is delineated into three
major parts: The first part deals with ‘human rights associated with sexual health and well-
being’. The second part deals with ‘human rights associated with reproductive health and rights’
and the final part is a compilation of the major recommendations for achieving them. The
dissertation picks on the key aspects of accessing safe abortion facilities and the rights prevalent.
The issues, gaps and compliances with these rights in the report also aids in providing a holistic
understanding of the topic.