Published on 22nd July 2025
Authored By: Riddhi Nilesh Joshi
Kirit P Mehta School of Law, NMIMS
ABSTRACT
Reproductive rights in India have evolved significantly following the Medical Termination of Pregnancy (MTP) Amendment Act, 2021, and judicial interventions through 2023. This paper traces the evolution of abortion laws in India, culminating in recent reforms that expand access, empower individual choice, and align national policies with global human rights standards. By critically analyzing the extended gestational limits, the inclusion of unmarried women and other vulnerable groups, and the strengthening of consent and confidentiality provisions, this article highlights how these developments have aligned Indian law with constitutional guarantees under Articles 14, 15, and 21. Drawing from landmark Supreme Court rulings and the increasing emphasis on gender-neutral language and inclusivity, the paper underscores the judiciary’s pivotal role in reshaping access to abortion. While these developments are promising, challenges such as social stigma, medical gate-keeping, lack of awareness, and rural healthcare disparity remain persistent. The paper advocates for a truly rights-based reproductive health framework in India, which encompasses legal reforms and systematic changes in healthcare delivery, public awareness, and social attitudes.
INTRODUCTION
Reproductive rights refer to the legally protected rights of individuals to access contraception, fertility treatments, safe abortion, and the autonomy to make informed decisions about their reproductive health. While these rights apply to all individuals—including men’s access to contraception and fertility support—the legal framework in India, particularly the Medical Termination of Pregnancy (MTP) Act, primarily governs the reproductive autonomy of those who can become pregnant.
In India, reproductive rights have historically been shaped by patriarchal norms, social stigma, and unequal access to healthcare services. Under Sections 312 to 316 of the Indian Penal Code, abortion was criminalized unless performed to save the life of the pregnant person, resulting in countless unsafe procedures and preventable maternal deaths. It was only in 1971, amidst rising concerns over population growth and alarming mortality from illegal abortions, that India enacted the MTP Act.[1]
While the 1971 law was a progressive step forward, it retained several limitations in terms of eligibility, consent, and access. Subsequent amendments in 2002 and 2021 addressed some of these concerns. Recent legal and judicial developments—especially those emerging between 2022 and 2023—mark a significant shift toward expanding access, promoting privacy, and aligning reproductive rights with modern constitutional and human rights principles.
KEY FEATURES OF THE 2021 MTP AMENDMENT
The MTP Amendment Act of 2021 brought significant reforms to India’s abortion laws, representing a pivotal step forward in reproductive rights. While the original 1971 Act was path-breaking for its time, the 2021 amendment sought to address its outdated limitations by expanding access, broadening eligibility, and reinforcing privacy- albeit within a medicalized and still partially restrictive framework.
- Extension of Gestational Limits
One of the most notable reforms was the increase in the gestational age limit for abortion[2]:
Up to 20 weeks: Permission of one Registered Medical Practitioner (RMP) is sufficient.[3]
Between 20-24 weeks: Allowed only for certain “special categories” of women with the approval of two RMPs. These include survivors of rape or incest, minors, women with disabilities, and those facing a change in marital status during pregnancy, (e.g divorce or widowhood).
Additionally, for pregnancies beyond 24 weeks, abortion is permitted only in cases of substantial fetal abnormalities, and only with Medical Board approval, adding a new layer of institutional oversight.
- Marital Neutrality and Inclusion of Unmarried women
Previously, the law allowed abortion due to contraceptive failure only for married women. The 2021 amendment replaced “married woman or her husband” with “any woman and her partner”, thus recognizing the reproductive autonomy of unmarried women and moving toward a more marital status-neutral approach.
This was a long-overdue acknowledgment of changing social realities and an important step toward inclusivity.
- Stronger Privacy Protections
Section 5A of the amended Act introduced a confidentiality clause. It prohibits any RMP from revealing the identity or details of a woman undergoing an abortion, except as authorized by law. Violation of this clause is punishable, emphasizing the recognition of privacy and dignity in reproductive decisions– values that the Supreme Court has consistently upheld under Article 21 of the Constitution.
- Medical Oversight and Continued Challenges.
The amendment also formalized the role of state-level Medical Boards for certain abortions, which, while ensuring medical safety, can pose delays- particularly in rural regions. The reliance on medical practitioners as “gatekeepers” still places decision-making in the hands of others, rather than affirming abortion as a woman’s sole right.
While the 2021 Act was progressive, it still retained medical control and did not fully decriminalize abortion under IPC sections 312- something reproductive rights advocates continue to challenge. [4]
KEY FEATURES OF THE 2023 MTP DEVELOPMENTS
While the 2021 amendment to the Medical Termination of Pregnancy (MTP) Act marked significant legislative progress, the real turning point in 2023 came not from Parliament but from the judiciary, particularly the Supreme Court’s landmark rulings that interpreted the Act through a rights-based lens. These developments strengthened reproductive autonomy, clarified legal ambiguities, and expanded access for vulnerable groups.
- Gender-Neutral and Inclusive Interpretation
In the pivotal case of X v. Union of India (2022)[5], the Supreme Court explicitly recognized the rights of unmarried women to access abortion up to 24 weeks, provided they fell within the “special categories” outlined under Rule 3B of the MTP Rules. The Court criticized any marital-status-based restriction as discriminatory of Articles 14 and 21. [6]
Although the case was in 2022, its implementation and impact peaked in 2023, when lower courts and medical boards across India began following the judgment more consistently. The Court also emphasized that the law must recognize transgender and non-binary persons who can become pregnant, urging a shift from “woman-centric” to pregnant person-centric language—setting a powerful precedent for gender inclusivity in reproductive law.
- Right to Privacy and Bodily Autonomy
Building on the landmark Puttaswamy v. Union of India (2017) privacy judgment, the Court in X v. Union of India[7] reaffirmed that bodily autonomy and decisional privacy are core constitutional rights. It held that requiring unmarried women to seek judicial approval for abortion was a violation of dignity, equality, and autonomy.[8] This has encouraged healthcare providers and state authorities to update internal protocols to avoid unnecessary legal hurdles.
- Clarifying Medical Roles and Legal Access
While the MTP Act still places abortion within a medicalized framework, 2023 saw further clarity from the Ministry of Health and Family Welfare and judicial interpretations around:
- Who qualifies as a Registered Medical Practitioner under the Act?
- How and when Medical Boards should intervene?
- The need to eliminate delays in abortion decisions, especially in rural or public hospitals
- Significance
These 2023 developments mark a shift from merely expanding gestational limits to embedding reproductive rights within the constitutional framework. The emphasis is now on accessibility, consent, privacy, and non-discrimination. While the law itself was not newly amended by Parliament in 2023, these interpretive shifts carry quasi-legislative authority and have redefined how the MTP Act is applied across India.
IMPLEMENTATION CHALLENGES AND GROUND -LEVEL REALITIES
While legal reforms like the 2021 MTP Amendment and subsequent 2023 judicial developments have significantly expanded abortion access on paper, several ground-level challenges continue to obstruct the full realization of reproductive rights in India.
- Medical Board Delays and Administrative Barriers
One of the primary hurdles lies in the functioning of Medical Boards, particularly for pregnancies beyond 24 weeks where fetal abnormalities are involved. Though intended as safeguards, these boards are often unavailable in smaller towns or rural areas, causing critical delays in time-sensitive situations. Many states lack clear standard operating procedures (SOPs) for convening these boards promptly, forcing women to either wait indefinitely or approach courts for relief. [9]
- Shortage of Trained Medical Professionals
The requirement that abortions, especially in later stages, must be performed by Registered Medical Practitioners (RMPs) with specialized training limits availability, particularly in rural India. Studies indicate that a large proportion of Primary Health Centres (PHCs) and community health facilities either lack trained personnel or are unequipped to handle safe abortions beyond early gestation. [10]
- Social Stigma and Provider Reluctance
Despite legal liberalization, deep-rooted social stigma continues to affect both patients and providers. Many healthcare providers refuse to perform abortions due to personal, cultural, or religious beliefs. This issue is even more pronounced for unmarried women, adolescents, and rape survivors, who often face judgment or outright denial of care. [11]
- Lack of Public Awareness
The reforms are also undermined by low levels of public awareness. Many women remain unaware of their legal rights under the amended MTP Act, particularly in marginalized communities. As a result, women may either resort to unsafe abortion methods or not seek care at all, fearing legal or social consequences.
- Geographic Inequity
Access to safe abortion remains highly urban-centric. While private clinics in metropolitan cities offer relatively easier access, women in rural and remote regions often lack even basic reproductive healthcare infrastructure.
INTERSECTIONALITY AND ACCESS FOR MARGINALIZED GROUPS
Despite progressive reforms under the 2021 amendment and 2023 judicial developments, safe abortion access in India remains deeply unequal, shaped by caste, class, age, geography, disability, and gender identity.
Marginalized communities such as Dalits, Adivasis, and economically weaker sections face significant financial and logistical barriers. Private clinics are often unaffordable, while public healthcare suffers from poor infrastructure, long wait times, and inconsistent implementation. The added burdens of travel costs, wage loss, and stigma often force many to resort to unsafe abortions.[12]
Adolescents encounter conflicting legal requirements. Although guardian consent allows minors to seek abortions under the MTP Act, overlapping provisions of the POCSO Act create fear among providers of legal repercussions, even in consensual cases, often denying adolescents timely care.[13]
Rape survivors, while legally permitted abortions up to 24 weeks, face delays due to Medical Board approvals and invasive procedures. Legal interventions exist but remain inaccessible for many.
Transgender and non-binary individuals, though acknowledged by the Supreme Court’s 2023 interpretation, still face provider insensitivity, misgendering, and inadequate healthcare training, limiting inclusive reproductive access.
JUDICIAL AND CONSTITUTIONAL INTERPRETATION POST 2023
The Indian judiciary has progressively elevated abortion rights from statutory privilege to constitutional entitlement rooted in personal liberty, equality, and non-discrimination.
Article 21: Right to Life and Personal Liberty
In Puttaswamy v. Union of India (2017), the Supreme Court affirmed privacy and bodily autonomy as essential components of Article 21. Building on this, X v. Union of India (2022) recognized reproductive choices as integral to individual dignity, decisional autonomy, and personal liberty. This constitutional framing now demands that any abortion restrictions face strict judicial scrutiny.
Article 14: Right to Equality
Earlier laws distinguishing between married and unmarried women violated equality principles. The 2022–2023 rulings rejected marital status-based discrimination, affirming that all pregnant persons deserve equal protection, recognizing real-world social contexts and advancing substantive equality.
Article 15: Prohibition of Discrimination
The Court acknowledged that sex and gender-based discrimination extends to transgender and non-binary persons, encouraging gender-neutral language and expanding access beyond cisgender women. This reflects the judiciary’s growing intersectional approach.
Judicial Activism Filling Legislative Gaps
In the absence of legislative action post-2021, judicial interpretations have functioned as de facto legal developments, driving reproductive rights forward despite political hesitation.
COMPARATIVE INTERNATIONAL PERSPECTIVES
India’s evolving reproductive rights framework shares both similarities and contrasts with global developments. In the United States, Roe v. Wade (1973) had recognized abortion as a constitutional right under the right to privacy—similar to how India’s Supreme Court grounded reproductive autonomy under Article 21. However, the overturning of Roe in Dobbs v. Jackson Women’s Health Organization (2022) led to significant restrictions across many U.S. states, highlighting the fragile nature of judicially created abortion rights.
In contrast, India has recently moved toward greater inclusivity. Judicial developments extended abortion access to unmarried women and transgender persons, reinforcing equality under Articles 14 and 15. However, India’s approach remains medicalized, requiring medical board approvals in certain cases, unlike many European nations where abortion access is more liberal.
For example, countries like the UK allow abortion up to 24 weeks under the Abortion Act, 1967, while Germany permits it up to 12 weeks with fewer procedural barriers. Compared to these models, India’s system is progressive but still limited by infrastructural and administrative hurdles. Continued reform is essential to ensure full reproductive justice.
CONCLUSION
India’s evolving abortion laws reflect a significant shift toward reproductive autonomy, inclusivity, and constitutional protection. While the 2021 amendments and 2023 judicial developments have expanded access and recognized diverse identities, persistent challenges like medical gatekeeping, social stigma, and structural inequalities remain. The proactive role of the judiciary has helped bridge legislative gaps, but comprehensive policy reforms and societal change are still essential. True reproductive justice in India requires not just legal rights, but accessible, affordable, and stigma-free healthcare for all pregnant persons.
REFERENCES
[1] Veronica Arora & Ishwar C. Verma, “The Medical Termination of Pregnancy (Amendment) Act, 2021: A Step Towards Liberation”
[2] Guttmacher Institute, ‘Gestational Age Bans: Harmful at Any Stage of Pregnancy’ (2020)
https://www.guttmacher.org/gpr/2020/01/gestational-age-bans-harmful-any-stage-pregnancy accessed 7th June 2025
[3]‘Recent Amendment in the Medical Termination of Pregnancy Act’ (2024) Indian Journal of Public Health https://journals.lww.com/ijph/fulltext/2024/01000/recent_amendment_in_the_medical_termination_of.25.asp
[4] Verma & Arora, 2021; The Wire, 2021
[5] Global Legal Monitor, ‘India: Supreme Court Rules All Women, Irrespective of Marital Status, Have Equal Access to Abortion up to 24 Weeks’ (3 January 2023) https://www.loc.gov/item/global-legal-monitor/2023-01-03/india-supreme-court-rules-all-woman-irrespective-of-marital-status-have-equal-access-to-abortion-up-to-24-weeks/
[6] Anurag Bhaskar, ‘Abortion and Equality: Building upon the Supreme Court’s Judgment in X v. NCT of Delhi’ (Indian Constitutional Law and Philosophy, 4 October 2022) https://indconlawphil.wordpress.com/2022/10/04/guest-post-abortion-and-equality-building-upon-the-supreme-courts-judgment-in-x-v-nct/
[7] Legal Onus, ‘X vs Union of India: Examination of Reproductive Rights in India’ https://legalonus.com/x-vs-union-of-india-examination-of-reproductive-rights-in-india/
[8] Law School Policy Review, ‘Uncertainty of Abortion: A Case Comment on X v. Union of India’ (27 November 2023) https://lawschoolpolicyreview.com/2023/11/27/uncertainty-of-abortion-a-case-comment-on-x-v-union-of-india/
[9] Anisha Reddy, ‘MTP, Abortion and Medical Boards: The Barriers to Access’ The Wire (23 February 2023) https://thewire.in/rights/mtp-abortion-medical-boards-barriers-access
[10] Vidhi Centre for Legal Policy, ‘India and Abortion Law: Time to Go Beyond Gestational Limits https://vidhilegalpolicy.in/research/india-and-abortion-law-time-to-go-beyond-gestational-limits/
[11] Human Rights Watch, ‘India: Law Expands Abortion Access, But Barriers Remain’ (10 March 2021) https://www.hrw.org/news/2021/03/10/india-law-expands-abortion-access-not-enough
[12] Human Rights Watch, ‘India: Law Expands Abortion Access, But Barriers Remain’ (10 March 2021) https://www.hrw.org/news/2021/03/10/india-law-expands-abortion-access-not-enough
[13] Vidhi Centre for Legal Policy, ‘India and Abortion Law: Time to Go Beyond Gestational Limits https://vidhilegalpolicy.in/research/india-and-abortion-law-time-to-go-beyond-gestational-limits/
