Abortion in India: Navigating Laws and Realities

Abortion in India: Your Rights, the Law & the Hidden Gaps

In India, Medical Termination of Pregnancy (MTP) refers to ending a pregnancy through medical methods such as medications or surgical procedures. The primary legal framework governing abortion is the Medical Termination of Pregnancy Act, 1971, which was significantly updated in 2021. This law replaced outdated provisions from the Indian Penal Code of 1860, which had been shaped by British colonial influence.

The 1971 MTP Act was enacted following the recommendations of the Shantilal Shah Committee (1966), aimed at making abortion safer and more accessible. The Act permits abortions by registered medical practitioners under specific conditions outlined in Section 3. After the 2021 amendment, abortions are allowed up to 20 weeks of pregnancy, and in certain cases, beyond 20 weeks if there is a risk to the woman’s life or severe harm to her physical or mental health.

Who the Law Protects

The Act is designed to support women in vulnerable situations, such as:

  • (a) Survivors of rape

  • (b) Women facing contraceptive failures

  • (c) Cases where the pregnancy could harm the mother’s health or lead to a child with severe disabilities

  • (d) Pregnancies involving minors or mentally unfit individuals, where guardian consent is required

Abortion Rights: India and the Global Picture

Globally, abortion laws differ greatly. In the United States, the landmark Roe v. Wade (1973) case recognized abortion as a constitutional right under the right to privacy. However, this was overturned by the Dobbs v. Jackson Women’s Health Organization (2022) ruling, which removed federal protection for abortion rights and reignited global debates, especially about the legal status of fetuses.

In contrast, India’s MTP Act does not frame abortion as an individual “right” in the way Roe did. Instead, it follows the model of the UK’s 1967 Abortion Act, requiring medical approval. A woman can seek an abortion within 24 weeks under certain conditions—such as rape, contraceptive failure (for married women), serious health risks, or fetal abnormalities. Notably, spousal consent is not required, and the law applies to all women above the age of majority.

How India’s Courts Are Shaping Abortion Access

1. X v. State (NCT of Delhi), 2022

In a landmark judgment (2022 SCC OnLine SC 1321), the Supreme Court broadened the interpretation of rape to include marital rape for the purposes of the MTP Act. This means women forced into sex by their husbands can legally seek abortions. The Court also clarified that:

  • “Women” includes anyone needing reproductive healthcare, regardless of gender identity

  • Reproductive choice is a fundamental right under Article 21 of the Indian Constitution

  • Doctors are not required to reveal the identity of minors seeking abortions to the police

2. N. v. Secretary, Health and Family Welfare Department, 2023

In this Delhi High Court case (2023 SCC OnLine Del 376), Justice Prathiba M. Singh addressed the conflict between the MTP Act and the POCSO Act, 2012. While the POCSO Act mandates reporting of all child sexual offenses, the MTP Act allows minors (aged 16–18) to terminate pregnancies from consensual relationships. The Court directed authorities to protect the confidentiality of such minors and their families in police reports.

Challenges and Gaps in the System

While the 2021 amendments improved access to abortion, key limitations remain:

  • Women still need medical approval to access abortion; they do not have an absolute right to terminate pregnancies on their own terms

  • Abortions beyond 20 weeks require approval from a state medical board, which is often hard to access in rural areas

  • The Act restricts procedures to be performed only by gynecologists or obstetricians, but rural health centers suffer a 75% shortage of such specialists

Beyond legal hurdles, social and cultural barriers persist. Many women face stigma and resistance when seeking abortions, reflecting a deeper issue—India still struggles to ensure full reproductive autonomy for all women.

Conclusion

India’s Medical Termination of Pregnancy Act has evolved significantly since 1971, especially with the 2021 amendments and progressive judicial rulings. These changes have expanded access and strengthened protections, particularly by:

  • Recognizing marital rape

  • Upholding minor confidentiality

  • Affirming reproductive choice as a constitutional right

However, structural barriers—like limited rural access, mandatory medical approvals, and lack of autonomy—still hinder real reproductive freedom. Bridging the gap between legal reform and on-ground realities is crucial to ensure genuine autonomy and safety for all women in India.

Sudhanshu Gaur
2nd Year LLB (Hons)
Law College Dehradun, Uttaranchal University