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Introduction

Lately, The US Supreme Court observed that the right to abortion is not a constitutionally protected right[1]. A robust debate is going for and against the judgement around the world. In pursuance, you may be wondering whether abortion is legal in India or not?

Let me explain to you the legality of abortion in India through this article.

In simple terms, abortion means a deliberate termination of pregnancy. Before 1971 abortions were illegal in India under sections 312 and 313 of the Indian Penal Code. Except for protecting the women’s life.

In the early 1960s, women’s mortality increased due to the high rate of illegal abortions. So, Santilal Saha committee was formed to deliberate on abortion legislation in India.  

Consequently, India regulated abortion for the first time in 1971. It was in that year the parliament passed The Medical Termination of Pregnancy Act. This act legalised abortion for the first time in India with certain limitations.

Later In 2003 rules were made to allow the use of the newly discovered abortion medicine misoprostol to abort a pregnancy for up to seven-week.

The recent amendment in the Medical termination of pregnancy act came in 2021. Earlier in 1971, the upper limit for abortion was 20 weeks. After the 2021 amendment, abortion is Now permissible up to 24 weeks with certain conditions and limitations.

Who can undergo abortion after the 2021 MTP Amendment

Abortion in India is legal on the medical opinion that :

  1. The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health, or;
  2. There is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to stand seriously handicapped.

After the 2021 amendment, it requires the medical opinion of only one doctor to terminate pregnancy up to 20 weeks.

And, it requires the opinion of two doctors for terminating pregnancies between 20 and 24 weeks.

But it requires the opinion of a Medical Board to terminate pregnancy any time after 24 weeks on the ground of “substantial foetal abnormalities”.

Can a rape victim undergo an abortion in India?

According to section 3, Explanation 2 of the MTE 2021 Amendment Act, a rape victim can undergo an abortion for up to 24 weeks.

If a woman gets pregnant due to rape, it is constitute a grave injury to her mental health. She can abort that child up to 24 weeks

But, Many women approach the high court and supreme court in India to terminate pregnancies beyond 24 weeks time.

In Kumari V v. the State of Karnataka and Ors[2], the Karnataka High passed orders allowing termination of pregnancy of a rape survivor above the 24-week limit set by the 2021 amendment, saying that it was an extraordinary situation.

In Ms. X (minor) through her father v. State of Uttarakhand & Ors[3], the Uttarakhand High Court in February 2022 also allowed the abortion of a 28-week-old foetus in the case of a rape survivor.

In YYY v. Union of India[4], where a 10-year-old was raped by her father, the Kerala High Court also directed the Medical Board to examine the possibility of abortion during a 30-week-old pregnancy.

Can a single unmarried woman undergo an abortion in India?

For abortion in India, only the consent of aborting women is enough. Therefore a single unmarried woman can legally abort under the above-mentioned grounds.

if the woman is minor or mentally ill, it requires her guardian’s consent.

Note:  Pregnancy due to failure of contraception methods cause grave injury to the mental health of the woman and she can undergo an abortion.

Conclusion

The decision by a pregnant person on whether to continue a pregnancy or not is part of such a person’s right to privacy and, also the right to life and personal liberty under Article 21 of the Constitution.

With it, we can say that abortion is legal in India with certain limitations and conditions.

However, the MTE Act also mandates that notwithstanding anything in the act, a  doctor can do an abortion where it is immediately necessary to save the life of the pregnant woman.


[1] Dobbs v. Jackson Women’s Health Organization

[2] W.P.No.104672/2021

[3] Writ Petition No. 201 of 2022 (M/S)

[4] 2022 LiveLaw (Ker) 123

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