Is Abortion Legal in India?

Women are blessed with the gift of producing a new life. But it is very important to understand that before being a mother a woman is a human being and she should have all the rights to decide whether she wants to carry a child or not. Controversies exist in relation to the right of the mother for abortion, right of the foetus to life. If we look at the numbers of death of women due to pregnancy it would be large and scary.

What is abortion-

If we talk about the criminal law, it clearly states abortion as an intentional termination of pregnancy.

In Medical terminology abortion is describes a ‘termination of pregnancy before the foetus is capable of extrauterine life generally considered to be prior to the 20 weeks of gestation or the conceptus achieving a mass of fewer than 500 grams or a crown-rump length of 18 cm’.

There can be many reasons as to why a lady might go for an abortion.-

  • Sexual activities by the teenage girls before marriage;
  • Not being financially stable and ready to handle the burden of pregnancy;
  • The decision of the parent to stop having a child after giving birth to one;
  • Unwanted Pregnancy of the sex workers;
  • Rape victim etc.

In many cases like Suchita Srivastava vs V Krishnan, it has been clearly stated that it is the fundamental right of the woman under Article 21 to choose as to whether she wants to continue with the pregnancy or not. Under many other similar cases, it has been stated the same keeping in mind the usage of Article 21 which clearly gives the rights to personal liberty, dignity and privacy.

Abortions are basically of two types- artificial abortion and natural abortion- Natural abortion includes threatened abortion, inevitable abortion’ incomplete abortion, septic abortion, missed abortion and habitual abortion. Artificial abortion can be defined as the elective termination of pregnancy prior to viability.

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Indian Laws on Abortion-

  • In IPC Act no 45 of 1860 act as an exception to the rule of punishment for abortion of the woman and permits to take an act of abortion if it is for the good faith of saving the life of the woman.
  • Section 312 to 316 deals with the punishment pertaining to the act of illegal abortion and states the punishment of imprisonment of 3 to 7 years according to the circumstances.
  • On 10th August 1971, the Medical Terminal Of Pregnancy Act was passed which has legalized the abortion. In this section 3(2) stated that the abortion should be done by the medical practitioner in good faith where there is a risk in carrying the pregnancy should be terminated within 20 weeks and should not exceed it. It also mentioned that the act should take place in only government hospitals.
  • Later in 2002, the Act was Amended and in 2003 it was decentralized stating that the abortion can also take place in private hospitals following the proper guidelines. This increased access for women to use such facilities in the private sector with better pieces of equipment and advancements.
  • Again in 2014, a bill was proposed to amend the MTP bill. This bill proposed that the 20 weeks gestational misbirth period should be increased to 24 weeks and also all the women irrespective of their marital status should be given the right to abortion.
  • In January 2018, the same bill was introduced in the Lok sabha with an addition that it should be raised to 27 in the case of the survivors of the rape.
  • In 2018, the introduction of the Women’s Sexual, Reproductive and Menstrual Right Bill by Shashi Tharoor to do away with the practitioner opinion for the pregnancy cases not exceeding 12 weeks but it had no effect on the 20 weeks gestational abortion period.
  • In 2019, the cased was filed at Supreme Court of India regarding the 20 weeks gestational period.
  • The amendment awaits cabinet approval.
  • Each year about 80 millions of women have an unwanted pregnancy. The impact of these pregnancies will vary immensely depending on such factors as a woman’s health, family relationships, economic resources, and the availability of medical care.  A woman is recognized as a person is the meaning of legal abortion. Most obviously, it means that a woman has a safe remedy if she becomes pregnant as an outcome of being raped. Women should rights over her reproductive life.
  • Most women seek abortions secretly in countries which abortion is legally restricted. This process is medically unsafe and life-threatening. The clandestinely done abortions are responsible for the deaths of nearly 50,000 women yearly.
  • While the right to health does not promise good health for all women, it has been understood to require governments to deliver health care and to work toward creating conditions favourable to the satisfaction of good health.
  • A woman has complete rights over her body. When pregnancy is uninvited, its extension can take a heavy toll on a woman’s physical and emotional well-being. Decisions one makes about one’s reproductive capacity, lie exactly in the province of isolated decision-making. The government should not have a role in making a decision for pregnant women as only she knows if she is ready for the baby.
  • Some women suffer maternity-related grievances, such as bleeding or clogged labour. Women are accordingly showing health risks that are not experienced by men. The difficult of maternal death due to insecure abortion is evidence of discrimination against women. When sexual assaults consequences are pregnancy, the harm experienced may be exponentially worsened; mainly, in countries with restrictive abortion laws, where such pregnancies leave women with the dreadful options between carrying the pregnancy to term and undergoing an unsafe abortion.
  • The countries that license abortion when there is a threat to the woman’s life or on socio-economic grounds could possibly make their laws to also permit misbirth when a pregnancy results from rape. The World Health Organization (WHO) has clearly specified that women who become pregnant as a result of rape should have access to safe misbirth services. If a countries law permits adultery than what is wrong with abortion.


There are few instances where the court has given permission for abortion after 20 weeks also looking at the danger to the mother. But this does not solve the problem of the entire nation on such issues. There have to be proper enforceable laws regarding the issues so that it does not amount to a heavy task for the woman to apply to the higher court for justice which is actually her lawful right.

‘‘…A woman has a right to an abortion. It’s a decision that’s up to the pregnant woman, not up to the pope or some do-gooders or the religious right’’- BARRY GOLDWATER.

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Md Sahabuddin Mondal

Junior Advocate, Calcutta High Court

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