Reproductive Rights in India: Legal developments post the 2023 MTP Amendment

Introduction

In recent years, conversations about reproductive rights have shifted from the margins to the centre of legal and policy debates in India. These rights encompass more than just access to abortion; they are about a larger concept, the power to make existential decisions about our bodies, health, and future without unreasonable interference. The legal fusion of reproductive rights in India has been slow so far. The Medical Termination of Pregnancy Act 1971 (MTP Act) represented a watershed moment by crafting out situations where abortion was legally permissible when in most settings abortion was criminalized by law under the Indian Penal Code (IPC).

However, even with the amendments and various encouraging decisions made by the courts, the law does not provide women and pregnant persons an unequivocal “yes” to abortion, doctors and in many cases judges retain the fragmented final say.

Since the 2021 amendment, and more so over the last year, we are witnessing distinctly different outcomes of the same law in courtrooms. Some benches have taken on an approach promoting autonomy of the woman, while others have been increasingly deferential to fetal viability, and especially once a pregnancy is past the 24-week mark.¹ In this article, I wanted to unpack this disparity.

Criminal Offence to Controlled Allowance

Sections 312-318 of the IPC had treated abortion as a criminal offence for decades. The only exception was if abortion was in good faith as a mode of saving the woman’s life.² Suffice it to say the outcome was that many women resorted to unsafe methods and maternal mortality rates remained high.³

The MTP Act 1971 intended to change all of that. Following the recommendations of the Shantilal Shah Committee, the Act permitted termination in certain limited circumstances- if the continuance of the pregnancy would involve a risk to the woman’s life, could cause severe physical or mental harm, or if there were serious fetal abnormalities. Rape and contraceptive failure (for married women) were also recognized as valid grounds for termination of pregnancy.⁴

The act came at a cost though; it vested the power to make the decision with registered medical practitioners (“RMPs”) rather than the pregnant woman herself.⁵

The 2021 Amendment: A step forward but not all the way

a. The 1971 MTP Act (2002 & 2021 Amendments)

The 1971 Act recognized certain grounds for abortion:

– a risk to the life of the woman,

– grave injury to her physical and/or mental health, 

– gross risk that the child will suffer from a serious physical and/or mental abnormality if born, 

– pregnancies resulting from rape or contraceptive measures (in the case of married women only)

This was a revolutionary change at the time, however it retained the authority of registered medical practitioners (RMPs) whose agreement was needed for any discussions of the above grounds.

b. The MTP (Amendment) Act, 2021 did enhance access in a number of ways:⁶

• Expanded gestational limits: up to 20 weeks with one RMP’s opinion; 20-24 weeks with two RMP’s for certain categories (like rape survivors, minors, widows/divorcees, and women with disabilities).
• Beyond 24 weeks is allowed only for substantial abnormalities in the fetus, and then with a medical board’s approval.
• Recognition of unmarried women: “Married woman” was changed to “woman,” and “husband” to “partner.”
• Contraceptive failure is now a ground for abortion, regardless of marital status.
• Privacy guarantee: doctors can’t disclose a woman’s identity, except as the law requires.
• These are positive developments. But overall context—the fact that permission is still required by the medical system—remains unchanged.The hard barrier remains with a strict 24-week ceiling, which remains a barrier for most cases.

c. Post-2023 Courtroom Landscape: All Over the Map

Unpredictable could be the only word to describe the way courts have approached the law recently if you were to think of one word.

When the Courts are Pro-Autonomy: In X v. Principal Secretary, Health & Family Welfare,⁷ the Supreme Court stated unmarried women should have the same abortion rights as married women up to 24 weeks. The Court specifically stated that the woman,not the doctor, not the state, should be the “ultimate decision-maker” over her own body which rested entirely on its reasoning in Suchita Srivastava v. Chandigarh Administration.⁸

When the Medical Board Has the Final Say:

October 2023 – Postpartum Psychosis Case: The 27-year-old was ultimately allowed to have an abortion after 24 weeks, but only after the AIIMS medical board was not approving. No approval when the medical board said the fetus was “normal.” The SC then preferred fetal viability over her mental health. The SC defined a “threat to life” in a very narrow manner. Serious mental health, including suicidal ideation, did not breach “threat to life.”

April 2024 – Minor and Survivor of Rape: By way of contrast, in a far more humane conclusion, the SC allowed the 14 year old girl (minor) to terminate her pregnancy after 28 weeks, but not without putting on the record their outrage at the risk of forcing her to carry the pregnancy to term.

February 2024 – 32 Week Widow: Again, while they acknowledged her trauma, the SC said no once more – favouring fetal welfare. The courts’ back and forth reflects how much weight the medical board opinion has – and how mental health is sidelined behind fetal viability.

Varying Decisions by State

High Courts have also been variable:

• Bombay HC (June 2023) refused a 28-week termination for a 15-year-old rape survivor, because of the fetal chances of survival.⁹
• Delhi HC (May 2024) said no to an unmarried NEET aspirant at 27 weeks.¹⁰

Same law, so many different outcomes, depending where you are and who hears your case.

Barriers Outside the Law

Even if you follow all the legal requirements, there can be practical barriers too:

• Medical board delays: Boards are usually located in big hospitals away from rural women.¹¹
• Conflicting laws: Mandatory disclosure under POCSO can violate confidentiality guaranteed in the MTP Act.¹² Access is affected by the PCPNDT Act and strict controls on abortion pill access and use.¹³
• Provider attitudes: Some doctors are still requiring spousal consent (and arbitrary requirements).¹⁴

How International Standards Compare

France’s Example

In March 2024, France was courageous in placing the right to abortion in its Constitution.¹⁵ That gives it a permanence Indian legislation simply doesn’t have – in India, also, abortion is still only statutorily regulated, and statues can simply be changed with a bare majority

The WHO 2022 Abortion Care Guideline provides a call for:¹⁶

1. Effective decriminalisation of abortion.
2. Provision of abortion on request with no gestational limits.
3. Recognition of self-managed medical abortion.
4. Removal of requirements to seek approvals from third parties.
5. Human rights committees (e.g., CEDAW, UN Human Rights Committee) have continually found that denying abortion in case of severe health risk or distress violates an individual’s rights to privacy, equality and freedom from cruel or degrading treatment (K.L. v. Peru, 2005).

What Still Needs to Happen?

If we are serious about making reproductive rights real there needs to be the following:

1. Recognize abortion as a right up to a point without needing any medical approval.
2. Have easily accessible, unequivocal rules on cases after 24 weeks that equally account for mental health.
3. Bring medical boards locally or closer.
4. Untangle the mismatches and mutinies of the MTP, POCSO, PCPNDT and drug statutes.
5. Educate the public and doctors to alleviate some stigma.

Conclusion

The MTP amendment of 2021 brought hope, yet, 2023–24 has demonstrated that real access is more than what exists on the books. Getting abortion rights or not depends on what city you are in, which judge you get, and what your medical board issues were.

Until the law puts women’s autonomy at its centre, abortion rights in India will remain contingent, inconsistent and precarious.

References:

1. Hasi Jain, ‘Uncertain verdict, unequal access: Navigating through India’s abortion maze’ (Citizens for Justice and Peace, 4 June 2024)
2. Indian Penal Code, No. 45 of 1860, 312–318.
3. Adv Daya Prem, ‘Reforming the MTP Act: A Call for Comprehensive Change Centered on Women’s Reproductive Freedom’ (Indian Journal of Integrated Research in Law, Vol V Issue I) 963.MTP Act § 3(2), Explns. 1 & 2.
4.  Id.
5. Medical Termination of Pregnancy Act 1971 (Act No 34 of 1971) (India).
6.  Id.
7. X v. Principal Sec’y, Health & Family Welfare, (2022) SCC OnLine SC 905.
8. Suchita Srivastava & Anr v Chandigarh Administration (2009) 9 SCC 1 (SC).
9. XYZ v. State of Maharashtra, W.P. No. 6340/2023 (Bom. HC).
10. H v. Union of India, W.P. (C) 5825/2024 (Del. HC).
11. Sohel Sarkar, ‘India’s Abortion Laws Offer Pregnant Women an Illusion of Choice’ (New Lines Magazine, 9 September 2024) 
12. Protection of Children from Sexual Offences Act, No. 32 of 2012, INDIA CODE (2012).
13. Pre-Conception and Pre-Natal Diagnostic Techniques Act, No. 57 of 1994, INDIA CODE (1994); Drugs and Cosmetics Act, No. 23 of 1940, INDIA CODE (1940).
14. Reforming the MTP Act, supra note 6, at 967–68.
15. Amnesty International, ‘France enshrines right to abortion in Constitution in historic vote’ (4 March 2024) & Angelique Chrisafis, ‘France makes abortion a constitutional right in historic Versailles vote’ The Guardian (Versailles, 4 March 2024)
16. World Health Organization, Abortion Care Guideline (2022)