Abortion as a Legal Right: An Analysis of India’s Progressive MTP Amendments

Abstract:

While women possess the biological capacity to bear children, equally significant is their reproductive right to determine whether or not to continue a pregnancy. Abortion, therefore, transcends its characterization as a mere medical procedure; it constitutes a vital element of bodily autonomy and an indispensable component of women’s reproductive rights. This article examines the legal framework governing reproductive rights in India, with particular emphasis on how the 2021 and 2023 amendments to the Medical Termination of Pregnancy Act have substantially redefined and expanded the understanding of abortion as a legal entitlement for women.

Introduction :

Reproductive rights are a set of legal, social, and health-related rights that ensure individuals have the ability to make informed, autonomous decisions about their reproductive health and life. They are considered part of human rights and are recognized in various international agreements, such as the International Conference on Population and Development (ICPD) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). In India, the right to reproduction is interpreted as part of the broader right to life and personal liberty under Article 21 of the Constitution, which includes the right to make decisions about whether or not to continue a pregnancy. Abortion is the medical process of ending a pregnancy before the fetus can survive outside the womb. From a legal perspective in India, under the Medical Termination of Pregnancy Act, 1971 (as amended), abortion is permitted under specific conditions and time frames to ensure the woman’s health, safety, and autonomy.

In Suchita Srivastava v. Chandigarh Admn.[1], the Court affirmed that a woman’s right to privacy, dignity, and bodily integrity should be respected, including her right to undergo termination of pregnancy if her mental or physical health is at stake. Similarly, in X v. State (NCT of Delhi)[2], the Supreme Court observed that a woman has the autonomy to conceive by choice, regardless of whether she is married. When a pregnancy is intended, both partners share equal responsibility. However, in situations where the pregnancy is unintended or accidental, the physical and mental burden predominantly rests on the woman carrying it.

The Medical Termination of Pregnancy (MTP) Act, 1971 :

• History : Until the 1960s, abortion was prohibited in India, and women undergoing the procedure could be punished with up to three years of imprisonment and/or a fine under Section 312 of the Indian Penal Code. In the mid-1960s, the Government of India established the Shantilal Shah Committee, led by Dr. Shantilal Shah, to examine the issue of high maternal mortality rates in the 1960s and increasing concern over unsafe abortion practices, and to study whether the country required specific legislation on abortion. Acting on the committee’s recommendations, a Medical Termination of Pregnancy Bill was introduced in both the Lok Sabha and the Rajya Sabha, and subsequently passed by Parliament in August 1971. The Medical Termination of Pregnancy (MTP) Act, 1971 came into effect on 1 April 1972, extending to the whole of India except the state of Jammu and Kashmir. The Medical Termination of Pregnancy (MTP) Act, 1971 is a landmark in India’s legal and healthcare framework, introducing a regulated system for abortion and aiming to safeguard women’s health.
• Highlights of MTP Act 1971:

1. When Pregnancies may be terminated: Section 3 specifies the conditions in which a registered medical practitioner in India is permitted to lawfully carry out the termination of a pregnancy:

• The length of the pregnancy does not exceed 12 weeks, provided one registered medical practitioner is of the opinion, formed in good faith, that continuing the pregnancy would risk the woman’s life or cause her grave physical or mental injury, or there is a risk to the life pf the child of the women.
• The opinion of two registered medical practitioners is required under the same conditions, if the pregnancy falls between 12 to 20 weeks.
• Risk to the woman’s mental health is presumed if the pregnancy is a result of rape or, in the original Act, the failure of contraception in a married woman.

2. Termination in Emergency Situations : According to Section 5, a pregnancy may be terminated at any stage if, in the good faith opinion of a registered medical practitioner, it is immediately necessary to save the life of the pregnant woman. This clause overrides the usual week-based restrictions.
3. Place of termination: According to Section 4 of the Act, a pregnancy can only be terminated at an approved location. Specifically, it may be carried out in a hospital that has been established or maintained by the government, ensuring that the procedure takes place in a regulated and authorized medical facility.

Changes brought by MTP 2021 Amendment :

The Medical Termination of Pregnancy (Amendment) Bill, 2021, aimed at modifying the provisions of the 1971 Act, received approval from the Rajya Sabha on 16 March 2021, after having been passed by the Lok Sabha on 17 March 2020. The Medical Termination of Pregnancy (MTP) Amendment Act, 2021, amended the existing MTP Act of 1971, expanding access to safe and legal abortion services in India. The new law, which came into force from 25 March 2021, will contribute towards ending preventable maternal mortality to help meet the Sustainable Development Goals (SDGs) 3.1, 3.7 and 5.6.[3]

1. Increased Gestation Limit: For certain categories of women like rape survivors, and other vulnerable women like minors or physically disabled, the upper limit for abortion was extended from 20 to 24 weeks.
2. Accessible to unmarried women : It also extended MTP services under the clause of failure of contraceptive, to unmarried women to provide access to safe abortion based on a woman’s choice, irrespective of marital status. By reducing procedural barriers and acknowledging unmarried women’s rights, the amendment aligns with the idea that the decision to carry a pregnancy is primarily the woman’s.
3. Medical Practitioner’s Opinion :

• Up to 20 weeks of pregnancy – opinion of one registered medical practitioner is required.
• Between 20 and 24 weeks – opinion of two registered medical practitioners is necessary.

4. Exception for Fetal Abnormalities :No upper gestation limit if a Medical Board confirms substantial fetal abnormalities.
5. Confidentiality of the Woman’s Identity : Personal details of a woman undergoing termination must remain confidential, except where disclosure is allowed under the law. Whoever contravenes this provision, will be punished with an imprisonment of 1year or fine or both.[4]
6. Expanded Ground for Termination : The ground of contraceptive failure now applies to both the woman and her partner.

MTP Amendment Act, 2021 marks a progressive step towards safeguarding women’s reproductive rights in India. It expands the legal window for safe abortions, ensures confidentiality, and removes discriminatory restrictions based on marital status. By recognizing women’s autonomy and addressing medical realities like fetal abnormalities, the amendment promotes greater access, safety, and dignity in abortion care.

In the case of X v Principal Secretary ,Health and Family Welfare Department, Govt. of NCT of Delhi & Anr[5] the Supreme Court permitted to get her 22week pregnancy terminated. The ruling, welcomed by reproductive rights supporters, declared that differentiating between individuals’ rights solely on the basis of marital status is unconstitutional. The Court also acknowledged the unaddressed needs of marital rape survivors facing unwanted pregnancies. The judgment affirmed that the choice to continue or end a pregnancy is an integral aspect of a woman’s bodily autonomy and her right to determine the course of her life. It further recognised that unintended pregnancies can significantly impact a woman’s life, potentially interrupting her education, career, and mental health.

MTP 2023 Amendment :

From a rights-based perspective, Indian courts have played a pivotal role in interpreting the MTP Act in the period following the 2023 . Some significant changes can be seen through the cases that have come up before the courts :

Recent Case laws :

In XYZ v. State of Gujarat,[6] the Supreme Court of India permitted a woman to terminate her 26-week pregnancy, which had resulted from sexual assault. The Court took into account the possible psychological harm of continuing the pregnancy and upheld the woman’s right to make reproductive choices. It further observed that under the Medical Termination of Pregnancy (MTP) Act, termination beyond the standard gestational limits is permissible in specific circumstances, provided medical experts deem it necessary and the woman consents

XYZ & Anr. v. State of Maharashtra[7] in this case, a couple approached the Bombay High Court seeking permission to medically terminate the pregnancy of Petitioner 1 (the wife), which was at 24 weeks’ gestation. Petitioner 1 had recently been diagnosed with stage IV pancreatic cancer along with multiple liver metastases, and due to the pregnancy, she was deemed unfit to undergo palliative chemotherapy. The Bombay High Court in this case allowed the termination of 26 weeks of pregnancy if the petitioner wanted to do the same.

 (Mother of X) vs State of Maharashtra[8], this case revolves around a minor girl, X, who became pregnant due to sexual assault and whose mother sought permission to terminate the pregnancy. The Supreme Court ultimately ruled in favor of termination, emphasizing the pregnant person’s autonomy and bodily integrity, even when the pregnancy exceeded the 24-week limit stipulated in the MTP Act.

Conclusion :

The Medical Termination of Pregnancy (MTP) Act, 1971 was a landmark legislation in India, as it provided a legal framework for abortion under specific conditions, safeguarding women from unsafe and illegal procedures. However, its scope was initially limited, with restrictive gestational limits and decision-making powers lying largely with medical practitioners rather than women themselves. The MTP (Amendment) Act, 2021 brought significant progressive changes, reflecting evolving societal needs, medical advancements, and a stronger commitment to women’s reproductive rights. The 2021 amendment extended the upper gestation limit from 20 to 24 weeks for certain categories of women, including survivors of rape, minors, and cases of substantial fetal abnormalities. It also allowed termination at any stage if essential to save the woman’s life, and recognized the right to privacy by mandating confidentiality of the woman’s identity. Importantly, it shifted towards a more women-centric approach, granting greater autonomy and reducing the need for multiple medical opinions in early pregnancies.

Hence, the 2021 reforms marked a step forward in balancing medical safety with reproductive freedom. They have empowered women in India to make informed choices about their bodies, protected their health, and reduced the stigma surrounding abortion, aligning the law more closely with the principles of dignity, equality, and bodily autonomy.

References :

[1] Suchita Srivastava v. Chandigarh Admn.(2009) AIR SCW 5909

[2]  X v. State (NCT of Delhi), (2023) 9 SCC 433

[3] World Health Organization, ‘India’s Amended Law Makes Abortion Safer and More Accessible’ (WHO News-room, 13 April 2021) https://www.who.int/india/news-room/detail/13-04-2021-india-s-amended-law-makes-abortion-safer-and-more-accessible accessed 10th August 2025.

[4]   MTP amendment 2021, s. 5A

[5] X v Principal Secretary, Health and Family Welfare Department (2022) SCC OnLine SC 1321.

[6] XYZ v. State of Gujarat, 2024 SCC OnLine Guj. 4042.

[7] XYZ & Anr. V. State of Maharashtra (2024) Criminal Writ Petition No.2794 of 2024

[8] A (Mother of X) v State of Maharashtra & Anr (Civil Appeal No 5194 of 2024, Supreme Court of India, 29 April 2024) https://www.advocatekhoj.com/library/judgments/announcement.php?WID=17568 accessed 11 August 2025.