Explainer: Abortion and India

8 min readJun 27, 2022

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This article is divided into the following parts:

Abortion Statistics in India
Abortion Laws in India
- The Medical Termination of Pregnancy (MTP) Act, 1971
- Amendments
- Discourse
What is Happening in the US
- What is Roe vs Wade
- What does the Overturning Mean
India and Roe vs. Wade
Know More
- References
- Know More about Abortions in India
- Know More about Abortions in the US
- Resources

Although I am starting with abortion statistics in India, to understand what they mean comprehensively refer to the section 2 in which I try to write about the laws that exist in India.

This article is written to educate readers on abortion, hence, it has been a large work of working with references. It was intended as a one-place explainer. This includes references for statistics, laws, the whats and hows, and discourse that is happening. Refer to the last section for all the links.

Abortion Statistics in India

8 to 13 people die everyday due to unsafe abortion practices
unsafe abortion is the third leading cause of maternal deaths in the country
more than 80 per cent of people who may fall pregnant do not know that abortion is legal in the country
27% of abortions are performed at home by the pregnant person themself
73% of all abortions in 2015 were medication abortions — many of these safe, but illegal
5% of abortions in 2015 were non-medical abortions

Abortion Laws in India

The Medical Termination of Pregnancy (MTP) Act, 1971

The MTP Act came into force on April 1, 1971. It applied to the whole of India, except for Jammu and Kashmir. The MTP Act states that it provides “for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto”. According to it, a medical practitioner may validate and carry the termination if the pregnancy did not exceed 12 weeks, and under exceptional circumstances and guidance of two medical practitioners, the period could be extended to 20 weeks. Apart from the considerations of the well-being of the pregnant person and the unborn child, it allowed from terminations in cases of pregnancies due to rape or failure of contraception methods by a married person.

A FirstPost article states:

“Most sections of the MTP Act begin with ‘Notwithstanding anything contained in the Indian Penal Code..’, clearly signifying that this was more of a protection for doctors conducting ‘medical terminations’ than a comprehensive abortion care for women, as the Committee had originally advertised,” writes Shonottra Kumar, a research fellow with Nyaaya, an initiative of Vidhi Centre for Legal Policy, in ThePrint.

Amendments

In 2021, the MTP Act, 1917 was amended, which was approved on March 17, 2020. It allowed for abortions for special categories (survivors of rape, victims of incest, people who are minors or are differently-abled) till the gestation period of 24 weeks. One medical practitioner’s opinion is required till the gestation period of 20 weeks, and two if the termination is considered between 20 to 24 weeks. Beyond 24 weeks, opinion of three medical practitioners are required in cases of fetal anomalies. It fails to take into consideration transgender persons.

Discourse

The Act, even after its amendments, still fails to recognize abortion as choice that may be opted for on-demand by people who are/can get pregnant. It requires not just the involvement of a medical professional, but their authorization even in the earliest stages of a pregnancy.

“To me, the provisions [of MTP Amendment Act 2021] are progressive in a paternalistic, victimhood kind of way,” Suchitra Dalvie, gynaecologist and coordinator for Asia Safe Abortion Partnership, a pan-Asia network for safe abortion advocacy, told IndiaSpend.

Taking a look at the statistics section of this article, we see that there’s a considerable number of illegal, non-medical, or self-abortions that are taking place. The need to find a ‘safe-space’, a non-judgemental space, is dire.

This The Hindu opinion piece highlights these seven points:

first, they may not even be aware that abortion is legal or know where to obtain one safely
second, since the MTP Act does not recognise abortion as a choice, they need the approval of medical professionals even in the first few weeks of the pregnancy
third, unmarried and transgender people continue to face stigma and can be turned away from health facilities, forcing them to resort to unsafe care
fourth, mandatory reporting requirements under the Protection of Children from Sexual Offences Bill (POCSO), 2011 law against child sexual offences, impact privacy and hinder access of adolescents to safe abortion services
fifth, many are still coerced into agreeing to a permanent or long-term contraceptive method as a prerequisite for getting abortion services
sixth, health-care providers may impose their own morality by insisting on ‘husbands’ or ‘parental’ consent for abortion
seventh, despite laws prohibiting sex determination, the illegal practice persists

What is Happening in the US

Abortion was made legal across the US after a legal ruling in 1973, referred to as the Roe v Wade case. It has now been overturned.

What is Roe vs Wade

Before the 1973 ruling, abortions were unconstitutional unless it was authorized because the pregnant person’s life was in danger. A 25 year old woman under the name of Jane Roe questioned the abortion laws in Texas which criminalized the activity under the unconstitutional lens. Henry Wade defended the anti-abortion law.

By a vote of seven to two, the court justices ruled that governments lacked the power to prohibit abortions. They judged that a woman’s right to terminate her pregnancy was protected by the US constitution.

Abortion being illegal was seen as something that violated a person’s right to privacy. The court also argued that a person’s pregnancy should be seen in multiple different stages. In the first trimester, the abortion may not be regulated by anything/anyone other that the pregnant person themself and their doctor. In the second trimester, the abortion may be regulated by the state owing to the maternal health. In the third trimester, seeing if the fetus is viable (able to survive outside the womb), state may regulate or prohibit the abortion, except when there’s danger to life.

What does the Overturning of Roe vs Wade Mean

Individual states can now decide to ban abortions.

The Center for Reproductive Rights, a human rights organisation and pro-choice group, maintains a database called “What if Roe fell?” which predicts at least 25 states are expected to ban abortion altogether if Roe v. Wade is overturned.

Find out here more about which states will ban abortion and what the regress has been.

India and Roe vs. Wade

It is largely held that this overturning of Roe vs. Wade will give a push to more regressive ideas, the right-wing, and pro-life groups across the globe. The interpretation that reproductive rights are not a part of the fundamental rights granted to a citizen may have worrying implications. However, there are a number of doctors who echo the thoughts of Swati Singh:

Gynecologist Swati Singh of Safdarjung Hospital said the debate does not mean much for the country as abortion has always been legal in India. It has never been a political issue and although there have been discussions on fertility rates and population control, there has never been a demand in any state to ban or restrict abortions, she said.

The Roe vs. Wade overturning has sparked a discussion on abortion, the Indian laws on it, some not mentioning the Indian laws at all, but a lot of articles and discussions also claim India’s abortion laws to be progressive. This can be potentially misdirecting and dangerous. Even if we put aside the actual laws and the Act, how easy is it for people to access safe abortions in India? This question does not only include the logistical matters, but it also should take into recognition the ethical and emotional barriers decorated with stigma that people face in India. Despite the legality of the procedure, the accessibility remains a huge deterrent.

Medically, married women are eligible for an abortion if the contraceptive failed; single women, on the other hand, must indicate there was an element of coercion that led to the pregnancy. So while she notes the amendment to MTP Act is progressive, it’s still not the pinnacle of freedom. There is no way you can get an abortion by choice.

And despite all of it, if a pregnant person is able to go through a safe abortion procedure, there have been cases where it has led to violence: for example, for not taking the husband’s consent, or in cases of finding out that an unmarried person was pregnant. The legality on papers persist, still.

Sex-selective abortions continue to be rampant, but at the same time, people are ostracized and face tangible obstacles to exercising their choice. That both these facts co-exist speaks to the complexity of abortion as a reproductive right in India, and why it carries cultural baggage that we’re not equipped to understand by viewing the issue from a Roe v. Wade point of view alone.

When the MTP Act, 1971 was passed, the court had quoted Roe vs. Wade. This line alone should be frightening.

Know More

References used for this article:

Learn More about Abortions in India

Learn More about Abortions in the US

Resources

Note: Thank you reading this explainer article. If you have any more resources/links that I can add under the ‘Know More’ heading, please let me know and I will do so. Please write to me if you find anything not quite right.

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