DHARMASHASTRA NATIONAL LAW UNIVERSITY, JABALPUR

SESSION 2023-24

SUBJECT: GENDER JUSTICE AND FEMINIST JURISPRUDENCE

TOPIC: STUDY OF ABORTION LAWS AND MTP ACT THROUGH THE

LENS OF WOMEN’S RIGHTS

SUBMITTED TO: SUBMITTED BY:

Miss Shrishti Yadav Karnika Patidar

(Assisstant professor of law) (Roll no.-048)

 Acknowledgement

I would like to express my deep gratitude towards my subject teacher of gender justice and
feminist jurisprudence Mrs Sristhi Yadav who took an acute interest in my project and guided
me all along. I’m feeling extremely privileged to have her as my instructor in the project. I owe
my deep gratitude to the vice-chancellor Prof. Dr. Manoj Kumar Sinha and for their valuable
support throughout the project.

I would like to extend my gratefulness to my parents and friends for their valuable support and
advice. The completion of this project required counselling and assistance from many people and
I’m thankful to them for counselling in my project.

Karnika Patidar

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 Table of contents

S.No. Name of the topic Page no.

01 Acknowledgement 01
02 Abstract 03
03 Introduction 04-05
04 History 06-07
05 Main Features 08-09
06 Important judgments 09-10
08 Issues and Challenges 11
09 Conclusion 12
10 Suggestion 13
11 Bibliography 14

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 ABSTRACT

Medical Termination of Preganacy Act, 2021 has been brought with much needed reforms to
safeguard the reproductive rights and health of the women. This paper attempts to study into the
related aspect with respect to abortion laws and the it contributed in the domain of gender justice
and feminist jurisprudence.

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 INTRODUCTION

Global lawmakers have long struggled with the issue of whether a mother's life is more valuable
than that of an unborn child. Anti-abortion activists, who frequently hold conservative opinions
that are frequently based on a narrow interpretation of religious doctrine, have consistently
backed anti-abortion legislation.

In order to encourage greater preference for and access to safe abortions in India, the Medical
Termination of Pregnancy (Amendment) Act, 2021 was drafted with a noble and liberal
cause.Additionally, it aimed to boost recognition for women's bodily autonomy and reproductive
rights. The earlier MTP Act of 1971 was substantively progressive, but the most recent
amendment aimed to adapt Indian abortion law to global social and humanitarian concerns that
have been on the rise. In addition to a dismal track record in awareness and implementation,
there are still gaps in the legal framework.

Abortion is still frowned upon in all strata of Indian society, despite a number of policy
initiatives, Action Plans, judicial decisions, and grassroots efforts. The MTP Act and the related
Rules and Regulations need to be implemented with significant reform. This essay aims to
highlight the shortcomings of the current Indian abortion law as well as the obstacles to its
efficient application. With the help of government statistics and research done by a number of
State and Non-State Institutions, it aims to assess the degree of success of the MTP Act of 1971.
It also aims to examine the root causes of local level execution failures and potential abuse
scenarios for the Act. Although the recent Amendment to the MTP Act1 has taken a huge stride
in increasing access to safe abortions by allowing abortions at any stage on the ground of foetal
abnormality and increasing the upper gestational limit for seeking abortions, it has not achieved
gender justice in the true sense. There still remain loopholes in the Bill, in addition to an absence
of effective monitoring of abortions across India, and medical and legal ignorance amongst many
citizens. The existing framework on abortions has proved to be inadequate to grapple with the
practical realities of a majorly rural and developing society.

1
The Medical Termination of Pregnancy (Amendment) Act, 2021

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RESEARCH QUESTIONS

 What was the history of abortion laws in India and how it can be compared to the present
scenario?
 What are the issues that arises with respect to the stated act and prevalent abortion laws in
the country?
 Whether Supreme Court brought about any changes to the abortion laws if seen through
judgements?

RESEARCH OBJECTIVE

 To study the abortion related laws through the lens of women’s right.
 To study the major features of Medical Termnination of Pregnancy Act.
 To study various case laws to in order to understand the improvised position of abortion
and other related right’s of women.

RESEARCH METHODOLOGY

The methodology used in this research is doctrinal research. The research was done mainly by e-
resources.

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When a woman suffers from an unwanted pregnancy, threatening her physical, emotional and
psychological well-being, it often is a question of life or death for her. It is true that both the man
and the woman contribute towards creating the foetus, but the onus of carrying the baby to term
lies on the woman, who has to bear the physical consequences of bearing the child, often at the
cost of her own life. Art. 14 of the Constitution, which guarantees the right to equality, makes it
sufficiently clear that any discrimination between two classes must be based on reasonable
grounds. Denying a woman the exercise of her personal will to secure her own health, life and
mental well-being would clearly amount to a blatant violation of the principle of equality of
genders. Moreover, statutory backing to anti-abortion ideologies and practices further deepens
the patriarchal set-up that has historically denied women basic rights over their own mind and
body. It is important that in furtherance of Constitutional ideals, the law must strive to intervene
with feudal and irrational mindsets and instead promote increased equality amongst genders,
through adopting policies that overturn, and not, strengthen regressive ideals.

It is first important to understand the history of abortion law in India, to have a better
understanding of the present scenario.

HISTORY OF ABORTION LAW

The British conception of morality has had a significant impact on how morality is conceived in
Indian law. The Indian Penal Code indirectly criminalized abortion under S. 312, which stated
that anyone who intentionally caused a woman to miscarry, other than to save her life, would
face three years in prison and a fine. This provision took its cue from the Offenses Against the
Persons Act, 1861. It also stipulated a seven-year prison sentence as punishment for women who
Voluntary sought abortion. Unborn people have historically had the status of legal persons under
common law, which is reflected in a number of legal fields, including torts, Compared to the life
of a developing foetus, a woman's life and mental health were considered to be less important.
However, due to a shift in international law, Indian lawmakers began discussing the matter.
Humanitarian concerns about women's health and their inescapable link to abortions prompted a
change in the legal community in India's discourse.The Legislature established the Shantilal
Shah Committee to thoroughly research the issue and make recommendations regarding the

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legality of abortion. The Committee put forth recommendations for the Indian law that was in
place between 1964 and 1970.
It proposed the legalisation of abortion, with a view to protect women's lives and to improve
maternalhealth.
The recommendations were framed after an extensive analysis of the legal, medical and socio-
cultural aspects of abortion.There was a notable shift in perception, and significant weightage
was given to gender justice and reproductive rights. As the law evolved further, the process of
abortion was decentralised, and private players were given more freedom to carry out abortions
in a safe environment. In order to evaluate the effectiveness of abortion legalisation and the
actual prevalence of both safe and unsafe abortion performed in India, the Abortion Assessment
Project of 2002[The Abortion Assessment Project 2002] was launched. The MTP Rules and
Regulations of 2003 [The Medical Termination of Pregnancy (Rules and Regulations) 2003]
outlined the precise responsibilities, make-up, and procedure necessary for a legal abortion as
well as the various bodies involved in the process.Despite numerous policy changes, according
to the 2002 Assessment, India had roughly 15.6 million abortions annually. In India, unsafe
abortions account for 56% of all abortions, and 10 women per day pass away as a result of the
same.

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Main Features of The MTP(Amendment) Act, 2021 – Key Provisions

The MTP (Amendment) Act, 2021 has proposed major reforms to the earlier Act to make it
convenient for women to seek legal and safe abortions, even at an advanced stage of gestation.
Among the major changes introduced are the following:

1) Removal of Requirement of Opinion of two RMPs, up to 20 weeks – The former Act

mandated the opinion of two RMPs for abortions beyond 12 weeks of conception. For
women with limited access to medical facilities and poor knowledge of the procedure, it
was very burdensome to find 2 RMPs to get approval, which further delayed the process,
and caused hardships to expectant mothers. It also led to delays in taking crucial
decisions, thus risking the health and safety of women at a vulnerable stage.
2) Extension of Upper Limit Up to 24 Weeks: The present Bill allows women in specific
categories like victims of rape, incest, and crimes, disabled women and minors to abort
up to 24 weeks of pregnancy. It has thus become less cumbersome for women to adhere
to the gestational limit of 20 weeks, especially in cases where the fact of pregnancy or the
complications associated with it come to light after 20 weeks. It will give more space to
women to consider their decisions and take calculated steps in the interest of their well-
being and health.
3) Removal of Upper Limit for Abortions for Foetal Abnormalities: The earlier Act did
not permit abortions beyond 20 weeks on the ground of abnormality of the foetus. The
present Bill removes that bar. Foetal abnormalities like cardiac defects, mental disorders,
and other life-threatening defects are detected beyond 20 weeks, causing immense mental
agony and suffering to the woman. The pain associated with giving birth to such a child
and watching the child die early is inexpressible and harms the mental stability of the
woman. Under such circumstances, it is prudent to allow the woman to terminate the
pregnancy and save her the pain. However, the woman has to seek approval from a
Medical Board, the composition and functions of which would be outlined by the
Government.

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 4) Privacy of the woman: Indian society is still at a nascent stage, so far as the social
acceptance of abortion is concerned. Women often face ostracization and discrimination,
after knowledge of the abortion is gained by family members and the community. They
are also sometimes tortured mentally and physically for having opted for abortion,
leading to further difficulties in the social sphere. To prevent unauthorised use of the
information provided, the Bill proposes that the name and particulars of the woman
would remain absolutely confidential, except when demanded by a judicial body or for
investigation.

The above-mentioned changes are not sufficient to tackle the issue of unsafe abortions in
India. Many more reforms are needed for the complete achievement of reproductive health
and gender justice. The law needs to shed away prejudices borrowed from the society and
separate itself from primitive notions of morality. With international bodies like the WHO
recognising the right of a woman over her body, it is time that Indian law matches up to
international standards and moves towards a pro-choice stance.2

Important Judgments of The Supreme Court on The Issue of Abortions

 In Nikhil Dattar v. UOI3, S.3 of the MTP Act, 1971 was challenged as being
unconstitutional and violative of the right to life under Art. 21. The SC stated that it
could not intervene in the matter since the onus was on the legislature to reform the
law. Such decisions aggravate the moral dilemmas faced by doctors, when
approached by women who have not received any valuable help from the Courts.
 In another case, Suman Kapur v. Sudhir Kapur4, abortion without the husband’s
consent was equated with mental cruelty and made as a ground for divorce. This
judgment is inconsistent with the MTP Act and concerned Rules and Regulations,
which require only the consent of the adult woman for abortion. Such
decisionspromote a regressive mindset and further the social stigma associated with
abortion.

2
Joanna N. Erdman, ‘Theorizing Time in Abortion Law and Human Rights’ (June 2nd, 2017) HHR Journal
https://www.hhrjournal.org/2017/06/theorizing-time-in-abortion-law-and-human-rights/ accessed 20th april,2024
3
Nikhil Dattar v. UOI, WP (I) No. 1816 of 2008
4
Suman Kapur v. Sudhir Kapur (2009) 1 SCC 422

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  In Mrs. X v. UOI5, the SC recognised reproductive rights to be fundamental to the
right to life and bodily integrity guaranteed under Art. 21, and allowed the
termination of pregnancy beyond 20 weeks on grounds of potential harm to the
physical health of the woman. Similar judgments have allowed for abortions up to 25-
26 weeks of pregnancy under compassionate grounds.
 Rape victims face extreme mental agony in carrying the child of their rapist. Coupled
with the social stigma associated with rape, such pregnancies damage the body and
mind of the victim and rob her of her innocence and liberty. In the case of
MuruganNayakkar v. UOI 6, the SC allowed the termination of a 32-week pregnancy,
taking into account the mental suffering endured by the victim.
 A ray of hope has emerged with the judgment in SarmishthaChakraborty v. UOI7,
where the SC expressly recognised that a woman has a “sacrosanct right to her bodily
integrity” and consequently allowed the petitioner to abort her 26-week old foetus.
The Court also stated that the woman would suffer from grave mental injury by
continuing the pregnancy. The judicial trend has been shifting towards a more pro-
choice stance over the past decade.

Several such cases before the SC have reflected that the judiciary has mostly adopted a pro-
choice stance and allowed for the exercise of reproductive rights, without unreasonable legal
restrictions. However, there is still a long way to go because in the absence of properly enacted
laws and their execution and social acceptance, judicial rulings will remain meaningless.

5
Ms. X v. Union of India and Others (2016) C.W.P. 593 (IND)
6
MuruganNayakkar v. UOI (2017) SCC OnLine SC 1902
7
Sarmishtha Chakraborty v. UOI (2018) 13 SCC 339

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ISSUES AND CHALLENGES

 Different opinions on Termination:

One opinion is that terminating a pregnancy is the choice of the pregnant woman and a
part of her reproductive rights while the other is that the state has an obligation to
protect life, and hence should provide for the protection of the foetus. Across the
world, countries set varying conditions and time limits for allowing abortions, based
on foetus health, and risk to the pregnant woman.

 Not allowed beyond 24-weeks:

The Act allows abortion after 24 weeks only in cases where a Medical Board
diagnoses substantial foetal abnormalities. This implies that for a case requiring
abortion due to rape, that exceeds 24-weeks, the only recourse remains through a Writ
Petition.

 Abortion to be performed by doctors:

The Act requires abortion to be performed only by doctors with specialization in

gynecology or obstetrics. As there is a 75% shortage of such doctors in community
health centers in rural areas, pregnant women may continue to find it difficult to
access facilities for safe abortions.

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 Conclusion

There is no denial of the fact that India has been amongst the top countries in liberalising its
abortion laws and attempting to increasing access to safe abortions for women. The socio-
economic conditions of a majority of Indian women has prevented them from understanding
their legal rights and availing of the same. Family pressure, social stigma and legal hurdles have
coerced women to approach unauthorised medical practitioners, who often exploit women and
perform dangerously invasive abortion procedures without proper knowledge or training. The
first step towards removing these obstacles would be to overhaul the MTP Act, and grant the
mother with the absolute choice to abort the foetus at any stage of pregnancy, in the absence of
risk to health or life. Further, knowledge on abortion should be imparted from the college level
and should be made a part of compulsory sex education provided to adults at the school and
college level. Denial of sexual and reproductive rights will only serve to worsen the current
situation on abortions. Strict action must be taken against doctors indulging in malaise practices
and performing illegal abortions. Further, grassroots level activists must run door-to-door
literacy campaigns to educate rural woman and men, and this must be enforced seriously with the
aid of local police authorities. Post-abortion care must be improved and there must be regular
counselling of family members and Panchayat level institutions to eliminate the taboo associated
with abortion.

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 Suggestions

1. Education on abortion laws, methods and procedures should begin at the college or high
school level and must be taught in a responsible manner, so that it may break the
ignorance and prejudices of youth.
2. Data on safe and unsafe abortions must be standardised and there must be better Centre-
State coordination on policy-making and implementation of abortion laws.
3. Expert counsellors must be chosen to counsel the family members and Panchayat level
institutions in villages where women face social ostracization for opting for abortion.
4. A special app dedicated to imparting information on safe abortions must be made
available by the Central and State governments to facilitate better literacy on abortion.
5. The budget allocated for infrastructure development and equipment procurement for
abortion centres must be increased and the private sector must be adequately regulated to
ensure that abortion does not turn into a business for private players.
6. AYUSH Workers, nurses and para-medical staff must be allowed to perform safe
abortions, after proper training and certification, albeit with strict regulation.
7. There is no clear distinction between first and second trimester abortions in Government
data. Most second-trimester abortions require more advanced medical equipment and
expensive facilities, which means that a proper segregation of second trimester abortions,
while collecting data will allow for better planning in infrastructure development and
service delivery. For example, a research study conducted in 2006 indicated that
unwanted pregnancies are the primary reason for seeking such second-trimester
abortions. Therefore, such abortions must be classified distinctly, with a separate strategy
being developed to facilitate such abortions in a timely and safe manner.
8. While the private sector is lauded for providing improved quality and services, the
exorbitant prices charged by private healthcare providers makes it near impossible for
poor women to access quality services in private hospitals. To remedy this, there must a
cap on the prices charged for abortions by private hospitals. The cap should take into
consideration the providers’ costs incurred and balance them with the right of women to
access safe, confidential and quality abortion services.

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 BIBLIOGRAPHY

 Medical Termination of Preganancy Act, 2021

 SCC Online
 The Medical Termination of Pregnancy (Amendment) Bill, 2020 (prsindia.org)

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