REPRODUCTIVE RIGHTS IN INDIA: LEGAL DEVELOPMENTS POST THE 2021 AMENDMENT

Abstract

Following the Medical Termination of Pregnancy (Amendment) Act, 2021, this article traces the evolution of India’s abortion laws, focusing on both legislative reforms and judicial developments through 2023. It examines the expanded gestational limits, the inclusion of single women within the scope of legal abortions, and the increasing acceptance of a more inclusive definition of “woman” that encompasses people of all gender identities. However, it also emphasizes how restrictive interpretations persist, especially concerning late-term abortions performed for mental health reasons.

Additionally, the article discusses the ongoing effects of intersecting criminal and regulatory frameworks—such as the Indian Penal Code, the Protection of Children from Sexual Offences Act, and the Pre-Conception and Pre-Natal Diagnostic Techniques Act—that together erect procedural and psychological barriers for patients and providers. Combining academic analysis and advocacy, this paper makes the case for a shift toward a rights-based, autonomy-centered legal framework that eliminates punitive restrictions and guarantees safe, affordable, and accessible abortion services for everyone in India.

I. Introduction

Reproductive rights have in recent years transitioned from the margins to center stage in India’s legal and policy discourse. These rights extend far beyond access to termination of pregnancy—they encompass the freedom to make fundamental decisions about one’s body, health, and future without undue constraints. The legal recognition of reproductive rights in India has been a gradual process. The first significant step was the Medical Termination of Pregnancy Act, 1971 (MTP Act), which brought specific conditions under which termination of pregnancy became legally acceptable, carving out exceptions to the Indian Penal Code provisions that had previously rendered abortion a criminal offense.[1]

Even after subsequent amendments and progressive judicial pronouncements, the law nonetheless fails to grant women and pregnant persons complete autonomy in decisions regarding termination of pregnancy. In practice, physicians—and often judges—retain decisive control.

Since the 2021 amendment, and particularly over the past year, we have witnessed strikingly divergent judicial interpretations of the same law. While some benches have emphasized a woman’s autonomy, others have shown greater deference to fetal viability, especially once a pregnancy extends beyond 24 weeks.[2]

The 2021 amendment also brought about significant terminological changes, substituting the more inclusive terms “any woman” and “partner” for the previously restrictive terms “married woman” and “husband.”[3] The amended Act allows abortions up to 20 weeks with one licensed medical professional’s consent and between 20 and 24 weeks with two doctors’ consent in certain “extraordinary” circumstances. According to Rule 3B of the MTP Rules, 2003 (as amended in 2021), these categories include survivors of sexual assault or rape, minors, women whose marital status has changed during pregnancy, cases involving severe fetal abnormalities incompatible with life, and women affected by humanitarian emergencies or disasters.[4] Despite these revisions being hailed as progressive and inclusive, critics contend that the law still fails to eliminate several key barriers to accessing abortion services.[5] This article seeks to explore and analyze this growing inconsistency.

II. Rule 3B and Unmarried Women’s Access

To implement the expanded provisions of the 2021 Amendment, Rule 3B of the Medical Termination of Pregnancy (MTP) Rules, 2021 was introduced.[6] Importantly, it specifically acknowledges unmarried women’s rights in two significant ways.

First, in 2021, the definition of “failure of contraception”—which previously applied only to “married women or her husbands”—was expanded to include all women, regardless of marital status.[7] Consequently, an unmarried woman who becomes pregnant due to contraceptive failure can now obtain an abortion within the first trimester on the same terms as a married woman.

Second, Rule 3B(1)(c) covers women who have experienced a “change in marital status” during pregnancy.[8] In X v. Health and Family Welfare Department (HFWD), the Supreme Court clarified that unmarried women abandoned by their partners are also covered by this provision. This interpretation ensures meaningful implementation of the 2021 Amendment’s gender-neutral intent. The Supreme Court rejected the Delhi High Court’s previous restrictive interpretation of Rule 3B, which had treated “survivors of sexual assault or rape” as limited to married women.

These changes have produced noticeable results. Under the previous law, unmarried women were routinely refused abortions or forced to obtain court approval after the 20-week mark. As a result of the Supreme Court’s ruling in X v. HFWD,[9] unmarried women now have more equal access to reproductive autonomy.

Critics point out, however, that Rule 3B continues to adopt a categorical, situation-based approach rather than a wholly rights-oriented framework. For example, while it specifically addresses cases of contraceptive failure and rape survivors, it excludes other situations such as non-marital sexual violence or broader sexual health emergencies. Furthermore, the continued non-recognition of marital rape highlights remaining restrictions in the law. Nevertheless, Rule 3B and the Supreme Court’s progressive interpretation have significantly eliminated the previous marital restrictions on abortion access.[10]

III. Shifting from Criminal Offense to Controlled Legal Procedure

For decades, Sections 312–318 of the Indian Penal Code treated termination of pregnancy as a criminal offense, with the sole exception being terminations carried out in good faith to preserve the life of the woman.[11] This legal framework left millions of women with no alternative but to seek unsafe terminations, contributing to persistently high maternal mortality rates.[12]

The Medical Termination of Pregnancy (MTP) Act, enacted in 1971, aimed to alter this reality. Acting on recommendations made by the Shantilal Shah Committee, the Act liberalized abortion law, making termination legal under certain defined circumstances: where continuation of the pregnancy would endanger the woman’s life, could cause serious physical or mental harm, or when the fetus would be severely malformed. Moreover, pregnancies resulting from rape or contraceptive failure (for married women) were also deemed acceptable grounds for termination.[13]

However, the Act contained one critical limitation: the final decision regarding whether to grant or refuse an abortion rested with registered medical practitioners (RMPs), not with the pregnant woman herself.[14]

IV. The 2021 Amendment: Progress with Persistent Limitations

A. The 1971 MTP Act and Subsequent Amendments

The Medical Termination of Pregnancy Act, 1971, initially specified the following circumstances under which termination was legally permitted:
1. When continuation of the pregnancy would endanger the woman’s life or involve serious physical or mental harm;
2. When there was substantial risk that the child, if born, would suffer from serious physical or mental disabilities; and
3. When the pregnancy resulted from rape or contraceptive failure (applicable only to married women).

While these provisions were historically revolutionary, the law still concentrated decision-making authority largely in the hands of registered medical practitioners (RMPs), requiring their authorization before any such grounds could be invoked.

B. The MTP (Amendment) Act, 2021: Expanding the Framework
The 2021 amendment to the Medical Termination of Pregnancy Act introduced several significant improvements:[15]

1. Extended Gestational Limits: Abortions are now permitted up to 20 weeks with approval from a single registered medical practitioner (RMP), and between 20 and 24 weeks with approval from two RMPs, on limited grounds including rape survivors, minors, widows, divorcees, and disabled women.
2. Beyond 24 Weeks: Termination is permitted solely when there are severe fetal abnormalities, and only upon orders from a properly constituted medical board.
3. Inclusion of Unmarried Women: The legislation substituted “married woman” with “woman” and “husband” with “partner,” thereby extending abortion rights regardless of marital status.
4. Recognition of Contraceptive Failure: This is now a legally acceptable ground for abortion regardless of the woman’s marital status.
5. Protection of Privacy: Medical practitioners are prohibited from disclosing a woman’s identity unless legally compelled to do so.

While these changes represent substantial progress, the overall system remains problematic. It maintains medical authorization procedures that keep decision-making power in the hands of doctors rather than women themselves. It also preserves the strict 24-week barrier as a primary obstacle in the vast majority of cases.

V. Constitutional and Legal Framework for Reproductive Rights in India

India’s Constitution, specifically Article 21, guarantees personal liberty and thereby implicitly protects reproductive autonomy. The principle that reproductive decision-making falls within a woman’s personal liberty was established in Suchita Srivastava v. Chandigarh Administration (2009). The Supreme Court emphasized a woman’s right to privacy, dignity, and bodily integrity, stating that no restriction should unduly burden her reproductive choices.[16]

In Laxmi Mandal v. Deen Dayal Harinagar Hospital (2010), the Delhi High Court held that maternal deaths caused by inadequate healthcare constituted violations of human rights. The Court ruled that reproductive rights fall within the ambit of Article 21, calling upon the government to introduce more effective healthcare schemes.[17]

The X v. Principal Secretary (2022) case saw the Supreme Court uphold a woman’s right to decide whether to continue a pregnancy, permitting termination of a 22-week pregnancy under Article 21.

In Minor R. through Mother H v. State of NCT of Delhi (2023), the Delhi High Court held that the decision to continue or terminate a pregnancy for a minor rape victim rests entirely with the woman, free from external pressure.

The case of Aryamol PS v. Union of India (2023) witnessed the Kerala High Court interpreting the Medical Termination of Pregnancy (MTP) Amendment Act (2021) to permit a woman to terminate a pregnancy without her husband’s consent, even when not legally divorced.

In ABC v. State of Maharashtra (2023), the Bombay High Court granted permission for a 35-week abortion due to severe fetal abnormalities, overruling the medical board’s denial and reaffirming that the decision ultimately belongs to the woman.

VI. Judicial Perspectives on Abortion and Mental Health in India

Recent judicial trends reveal heavy reliance on medical board opinions, often with insufficient consideration for women’s mental health and autonomy.

October 2023 – Postpartum Psychosis Case: A 27-year-old woman sought to terminate her pregnancy after 24 weeks, facing significant delay and judicial reluctance. The AIIMS medical board denied clearance, deeming the fetus “normal.” The Supreme Court concurred, prioritizing fetal viability over the woman’s deteriorating mental health. The Court interpreted the term “threat to life” narrowly, excluding even life-threatening mental illness and suicidal ideation.

April 2024 – Minor Rape Survivor: In contrast, the Supreme Court adopted a more compassionate stance in the case of a 14-year-old rape survivor, allowing termination after 28 weeks of pregnancy. The bench expressed strong concern over compelling a minor to carry such a pregnancy to term.

February 2024 – 32-Week Widow: Despite acknowledging that the woman had suffered emotional distress following her husband’s death, the Court refused authorization for an abortion at 32 weeks, prioritizing fetal interests over the woman’s mental and emotional health.

Collectively, these cases demonstrate the judiciary’s inconsistent approach, wherein medical board opinions often take precedence and mental health concerns remain secondary to considerations of fetal viability.

VII. Conclusion

Despite significant reforms to India’s abortion laws—including extending access to unmarried women, raising the legal limit to 24 weeks under certain circumstances, and adopting more progressive judicial interpretations—substantial obstacles remain. Research indicates that many women continue to rely on unsafe or unregulated abortion methods despite these legal advancements.

The persistent gap between law and lived reality underscores the need for a comprehensive rights-based legal framework that eliminates punitive restrictions and genuinely protects each person’s reproductive autonomy. True progress requires moving beyond categorical, situation-based permissions toward recognizing abortion access as a fundamental right grounded in bodily autonomy, privacy, and dignity. Only through such transformation can India ensure that reproductive rights are not merely theoretical guarantees but practical realities accessible to all, regardless of marital status, socioeconomic position, or geographic location.

Footnotes

[1] Indian Penal Code, No. 45 of 1860, §§ 312–318. ↩
[2] Hasi Jain, “Uncertain Verdict, Unequal Access: Navigating Through India’s Abortion Maze,” Citizens for Justice and Peace (Oct. 4, 2024). ↩
[3] Centre for Reproductive Rights, Factsheet: India MTP Amendment Act (2021) (Sept. 2022), https://reproductiverights.org/wp-content/uploads/2022/09/India-FACTSHEET-MTP-Amendment-Act-9-22.pdf. ↩
[4] Medical Termination of Pregnancy Rules, 2003, r. 3B (as amended by the Medical Termination of Pregnancy (Amendment) Rules, 2021). ↩
[5] Jain D, “Beyond Bars, Coercion and Death: Rethinking Abortion Rights and Justice in India,” 14(1) Oñati Socio-Legal Series 99 (2024), https://doi.org/10.35295/osls.iisl.1680. ↩
[6] Pandey S, “A Case for Transgender Abortion Rights in India,” JURIST (Feb. 15, 2024), https://www.jurist.org/features/2024/02/15/a-case-for-transgender-abortion-rights-in-india/. ↩
[7] Rai S and Sheikh S, “Why Women’s Mental Health Must Be a Key Consideration in Abortion Pleas,” The Wire, https://thewire.in/law/how-some-supreme-court-judgements-undermine-the-legitimacy-of-indian-abortion-laws. ↩
[8] Medical Termination of Pregnancy Rules, 2003, r. 3B(1)(c) (as amended 2021). ↩
[9] X v. The Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi & Anr., Civil Appeal No. 5802 of 2022 (2022). ↩
[10] Medical Termination of Pregnancy Act, 1971 (as amended by the Medical Termination of Pregnancy (Amendment) Act, 2021). ↩
[11] Indian Penal Code, No. 45 of 1860, §§ 312–318. ↩
[12] Adv Daya Prem, “Reforming the MTP Act: A Call for Comprehensive Change Centered on Women’s Reproductive Freedom,” Vol. V Issue I Indian Journal of Integrated Research in Law 963. ↩
[13] Medical Termination of Pregnancy Act, 1971, § 3(2), Explanations 1 & 2. ↩
[14] Medical Termination of Pregnancy Act, 1971 (Act No. 34 of 1971). ↩
[15] Medical Termination of Pregnancy (Amendment) Act, 2021. ↩
[16] Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1, https://privacylibrary.ccgnlud.org/case/suchita-srivastava-vs-chandigarh-administration. ↩
[17] Laxmi Mandal v. Deen Dayal Harinagar Hospital, 2010 DHC 3102, 172 (2010) DLT 9. ↩