Published On: October 7th 2025
Authored By: V S Sakthi
Chennai Dr Ambedkar Government Law College Pudupakkam
INTRODUCTION
Reproductive rights in India have historically been shaped by a delicate interplay between medical ethics, statutory frameworks, and constitutional principles. The Medical Termination of Pregnancy Act, 1971 (MTP Act), though progressive for its time, was primarily designed to regulate abortion through a medical lens rather than affirm reproductive autonomy. Over the decades, judicial interventions and legislative amendments have gradually shifted the discourse from medical necessity to rights-based frameworks.
The 2021 amendment to the MTP Act introduced significant changes, including extended gestational limits and broader categories of eligible women. However, it was the 2023 amendment that marked a paradigmatic shift recognizing gender diversity, affirming decisional autonomy, and embedding constitutional values into statutory interpretation. This article critically examines the legal developments following the 2023 amendment, analyzing statutory changes, judicial interpretations, and their implications for reproductive justice in India.
THE 2023 AMENDMENT : STATUTORY INNOVATIONS
The 2023 amendment to the MTP Act was a response to evolving jurisprudence and growing demands for inclusivity and autonomy in reproductive health. Key changes include:
1. Inclusive Definition of “Woman”
For the first time, the Act explicitly recognized that reproductive rights are not confined to cisgender women. The term “woman” was redefined to include transgender persons, non-binary individuals, and intersex persons capable of pregnancy. This aligns with the Supreme Court’s recognition of gender identity as a facet of Article 21 in National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
2. Autonomy in Decision-Making
The amendment removed the requirement of medical board approval for pregnancies up to 20 weeks for certain categories, including survivors of sexual violence and minors. This shift empowers the pregnant person and their medical practitioner to make decisions without bureaucratic hurdles, reflecting a move toward autonomy and dignity.
3. Recognition of Marital Rape Survivors
Although marital rape remains uncriminalized under Section 375 of the Indian Penal Code, the 2023 amendment recognizes survivors of marital rape as eligible for abortion services. This statutory recognition, albeit partial, challenges the legal fiction of implied consent in marriage and affirms the right to bodily integrity.
4. Judicial Oversight for LateTerm Abortions
For pregnancies beyond 24 weeks, especially in cases of fetal anomalies or threats to the pregnant person’s life, the amendment introduced a fasttrack judicial mechanism. This ensures timely adjudication while balancing medical complexity and constitutional rights.
JUDICIAL DEVELOPMENT POST 2023
The judiciary has played a pivotal role in interpreting the amended MTP Act in light of constitutional guarantees. Several landmark decisions post-2023 have expanded the scope of reproductive rights.
A. X v. Principal Secretary, Health and Family Welfare Department (2024)
In this case, the Supreme Court held that the right to terminate a pregnancy is a facet of the right to privacy under Article 21. The Court emphasized that reproductive choice is central to personal liberty and dignity.
“The right to terminate a pregnancy is not merely a statutory entitlement but a constitutional guarantee rooted in dignity and decisional autonomy.”
The judgment also clarified that medical boards must act as facilitators, not gatekeepers, and that delays in adjudication violate the right to timely healthcare.
B. Ayesha v. Union of India (2025)
The Delhi High Court recognized the right of a transgender man to access abortion services under the amended Act. The Court held that reproductive rights must be interpreted in a gender-inclusive manner, consistent with constitutional morality and the NALSA judgment.
C. State of Maharashtra v. Priya Sharma (2025)
In this case, the Bombay High Court struck down a hospital’s refusal to perform an abortion on a minor survivor of incest, citing the 2023 amendment and the Protection of Children from Sexual Offences Act, 2012. The Court reiterated that statutory protections must be harmonized to uphold the best interests of the child.
CONSTITUTIONALIZATION OF REPRODUCTIVE RIGHTS
The 2023 amendment and subsequent judicial pronouncements reflect a growing constitutionalization of reproductive rights. This shift is significant in a jurisdiction where statutory law often precedes constitutional interpretation.
Article 21: Privacy, Dignity, and Bodily Autonomy
Following Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, the right to privacy has been interpreted to include decisional autonomy in matters of reproduction. The 2023 amendment operationalizes this principle by reducing state and medical control over abortion decisions.
Article 14: Substantive Equality
By recognizing diverse identities and circumstances such as marital rape survivors, transgender persons, and minors the amendment promotes substantive equality. It moves beyond formal equality to address structural disadvantages faced by marginalized groups.
Article 15: Non Discrimination
The inclusive language of the amendment indirectly challenges discriminatory practices rooted in gender, marital status, and sexual orientation. Although marital rape remains uncriminalized, its recognition within the MTP framework signals a shift toward acknowledging gender based violence in reproductive contexts.
INTERSECTION WITH OTHER WITH OTHER LEGAL REGIMES
Reproductive rights do not exist in isolation. They intersect with other legal regimes, creating both synergies and tensions.
POCSO Act and Abortion Access
The Protection of Children from Sexual Offences Act, 2012 mandates reporting of sexual offences involving minors. This has created dilemmas for medical practitioners who wish to provide abortions without breaching confidentiality. The 2023 amendment attempts to harmonize these regimes by prioritizing the minor’s best interests and streamlining judicial oversight.
Transgender Persons (Protection of Rights) Act, 2019
The recognition of transgender persons under the MTP Act complements the rights guaranteed under the Transgender Persons Act. However, implementation remains uneven, with medical institutions often lacking sensitization and infrastructure to support gender diverse patients.
Indian Penal Code and Marital Rape
The contradiction between the MTP Act’s recognition of marital rape survivors and the IPC’s marital rape exception under Section 375 remains unresolved. This legal inconsistency undermines the coherence of reproductive rights jurisprudence and calls for urgent reform.
IMPLEMENTATION CHALLENGES
Despite progressive legal developments, several challenges persist in the implementation of reproductive rights:
Access and Infrastructure
Rural and marginalized communities continue to face barriers in accessing safe abortion services. Lack of trained personnel, inadequate facilities, and social stigma hinder effective implementation.
Medical Board Discretion
While the role of medical boards has been curtailed, their discretion in late-term abortions remains problematic. Delays, lack of transparency, and inconsistent standards violate the right to timely healthcare.
Awareness and Sensitization
Legal reforms must be accompanied by public awareness campaigns and medical sensitization programs. Many eligible persons remain unaware of their rights under the amended Act, and medical practitioners often lack training in gender inclusive care.
COMPARATIVE PERSPECTIVE
India’s evolving reproductive rights framework can be compared with global trends:
United States: The reversal of Roe v. Wade in Dobbs v. Jackson Women’s Health Organization (2022) has led to state level restrictions, highlighting the fragility of judicially created rights.
Ireland: The 2018 referendum repealing the Eighth Amendment marked a shift toward constitutional recognition of abortion rights.
South Africa: The Choice on Termination of Pregnancy Act, 1996 provides a liberal framework, emphasizing autonomy and access.
India’s approach, while statutory, is increasingly constitutionalized, offering a hybrid model that balances legislative clarity with judicial protection.
CONCLUSION
The 2023 amendment to the Medical Termination of Pregnancy Act represents a watershed moment in India’s reproductive rights jurisprudence. By embracing constitutional values of privacy, dignity, and equality, the amendment moves beyond medical paternalism toward a rights based framework. Judicial interpretations have further expanded the scope of reproductive autonomy, affirming that the right to terminate a pregnancy is not merely a statutory entitlement but a constitutional guarantee.
However, true reproductive justice requires more than legal reform. It demands robust implementation, medical sensitization, and societal change. As India continues to navigate the complex terrain of reproductive rights, the 2023 amendment offers a blueprint for a more inclusive, equitable, and rights affirming future.
REFERENCES
- Reproductive rights, Neha singh.
- https://ipleaders.com
