As US Supreme Court scraps Roe vs Wade, a look at how abortion laws have evolved in India

Protests have erupted across the United States after the country’s Supreme Court overturned its 50-year-old Roe vs Wade decision, now denying women the constitutional right to abortion.

President Joe Biden called the ruling a “tragic error”, saying that it has taken the country back 150 years.

The verdict comes after a leaked report in early May revealed that the US top court would strike down Roe vs Wade. Friday’s decision has thrown light on abortion legislation in other countries, including India, where abortion under certain circumstances has been legal for the past 50 decades.

In the wake of the developments in the US, we take a look at what our law says and how India decided to allow abortions.

The role of the Shantilal Shah Committee

Until the 1960s, abortion was illegal in India under Section 312 of the Indian Penal Code, 1860. “Causing miscarriage of a woman” was a punishable crime with imprisonment of up to three years and/or a fine.

In the mid-1960s, the government set up the Shantilal Shah Committee under the leadership of a medical professional, Dr Shantilal Shah, to look into the issue of abortions and ascertain if the country needed a law in this regard.

The Committee reviewed the medical, legal, and socio-cultural aspects of abortion in India and recommended legalised abortion along with a law on comprehensive abortion care in 1964. The recommendations were based to reduce unsafe abortions and maternal mortality rates.

Based on the report of the Shantilal Shah Committee, a medical termination bill was introduced in Lok Sabha and Rajya Sabha and was passed by Parliament in August 1971. The Medical Termination of Pregnancy (MTP) Act, 1971 came into force on 1 April 1972 and applied to all of India except the state of Jammu and Kashmir.

Provisions of the MTP Act

The MTP Act allowed for the medical termination of pregnancies alone. It was founded on the principles of the British Act passed by its parliament in 1967. As the opening paragraph states, the MTP Act provides “for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto”.

In essence, it Act attempts to regularise medical practices and institutions concerning abortion and, consequently, allows medical liberalisation to supersede medical criminalisation.

It is quite evident from the preamble that abortion would be allowed in certain circumstances. According to the ACT, a pregnancy may be terminated by a registered medical practitioner in the following circumstances:

a) where the length of the pregnancy does not exceed 12 weeks

b) where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, in this situation by the views of the two medical professionals in good conscience

c) where the prolongation of the pregnancy can pose a significant risk to a woman’s health if the doctor’s opinion is formed in good faith

d) when there is an apprehension that an infant born out of this pregnancy would be vulnerable to adverse well-being and will be impaired, depending on the doctor’s opinion

The Act allows for the termination of a pregnancy if “it is alleged by the pregnant woman to have been caused by rape” or “where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children”.

It states that no pregnancy shall be terminated without the consent of the woman.

‘No autonomy for women’

The Shantilal Shah Committee proposed comprehensive abortion care for women which is largely absent in the 1971 Act.

“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.

The article says that the decision of undergoing a medical termination rests solely on the doctor’s opinion, pointing to a lack of autonomy for women.

Abortions and court cases

Despite the MTP Act, the courts have often intervened to defend the rights of women.

In Suchita Srivastava v Chandigarh Administration, a woman was allegedly raped when she was in a government welfare institution and had become pregnant. The high court ordered that her pregnancy be terminated but she wanted the child. The SC allowed her to exercise her choice as that “a woman’s right to privacy, dignity and bodily integrity should be respected”, reports The Indian Express.

In 2015, the Gujarat high court rejected a petition seeking to terminate the pregnancy of a 14-year-old rape victim who was in the 24th week of her pregnancy. The MTP Act, 1971 allowed termination of pregnancy only until 20 weeks.

The case was taken to the Supreme Court, which struck down the HC order and allowed the teenager to go in for surgery to terminate the pregnancy when she was nearly 26 weeks pregnant.

In February 2022, in a landmark judgment, the Uttarakhand High Court ordered a rape survivor to terminate a 28-week foetus.

The amendments

For more than five decades, abortion decisions in the country were governed by the 1971 Act.

The abortion law was briefly amended in 2002 to allow for the use of the then-new medical abortion pills, mifepristone and misoprostol.

In 2021, the MTP Act, 1917 was finally amended. The Rajya Sabha approved the Medical Termination of Pregnancy (Amendment) Bill, 2021 on 16 March 2021, which got the president’s nod. The Bill was approved in Lok Sabha on 17 March 2020.

The 2021 Bill increased the upper gestation limit from 20 to 24 weeks for special categories of women which will be defined in the amendments to the MTP Rules and would include survivors of rape, victims of incest, and other vulnerable women like minors and those who are differently-abled. The opinion of only one provider will be required up to 20 weeks of gestation and two providers for termination of pregnancy of 20 to 24 weeks.

There is also no upper gestation limit for abortion in case of foetal disability if so decided by a medical board of specialist doctors.

The criticism against the abortion law

However, despite the changes, the law fails to recognise abortion as a woman’s choice that can be sought on-demand, as is the practice in 73 countries, according to a report in IndiaSpend.

“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.

Abortion deaths in India

Every day 13 women die in India because of unsafe abortion-related causes, according to a 2018 report. Nearly 6.4 million pregnancies are terminated every year and unsafe abortion is the third leading cause of maternal deaths in the country.

According to a report in India Today, research shows more than 80 per cent of women do not know that abortion is legal in the country.

The numbers are staggering, making awareness of abortion laws the need of the hour.

With inputs from agencies

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